ORS 183.450
Evidence in contested cases

In contested cases:


Irrelevant, immaterial or unduly repetitious evidence shall be excluded but erroneous rulings on evidence shall not preclude agency action on the record unless shown to have substantially prejudiced the rights of a party. All other evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs shall be admissible. Agencies and hearing officers shall give effect to the rules of privilege recognized by law. Objections to evidentiary offers may be made and shall be noted in the record. Any part of the evidence may be received in written form.


All evidence shall be offered and made a part of the record in the case, and except for matters stipulated to and except as provided in subsection (4) of this section no other factual information or evidence shall be considered in the determination of the case. Documentary evidence may be received in the form of copies or excerpts, or by incorporation by reference. The burden of presenting evidence to support a fact or position in a contested case rests on the proponent of the fact or position.


Every party shall have the right of cross-examination of witnesses who testify and shall have the right to submit rebuttal evidence. Persons appearing in a limited party status shall participate in the manner and to the extent prescribed by rule of the agency.


The hearing officer and agency may take notice of judicially cognizable facts, and may take official notice of general, technical or scientific facts within the specialized knowledge of the hearing officer or agency. Parties shall be notified at any time during the proceeding but in any event prior to the final decision of material officially noticed and they shall be afforded an opportunity to contest the facts so noticed. The hearing officer and agency may utilize the hearing officer’s or agency’s experience, technical competence and specialized knowledge in the evaluation of the evidence presented.


No sanction shall be imposed or order be issued except upon consideration of the whole record or such portions thereof as may be cited by any party, and as supported by, and in accordance with, reliable, probative and substantial evidence. [1957 c.717 §9; 1971 c.734 §15; 1975 c.759 §12; 1977 c.798 §3; 1979 c.593 §21; 1987 c.833 §1; 1995 c.272 §5; 1997 c.391 §1; 1997 c.801 §76; 1999 c.448 §5; 1999 c.849 §34]

Source: Section 183.450 — Evidence in contested cases, https://www.­oregonlegislature.­gov/bills_laws/ors/ors183.­html.

Notes of Decisions

A state agency need not be represented at administrative hearings by an attorney unless it chooses to be. Hanchett v. Juras, 12 Or App 33, 504 P2d 1060 (1973)

Reports are not excludable as hearsay where petitioner has option of calling or cross-examining preparer of report. Matthew v. Juras, 16 Or App 524, 519 P2d 402 (1974), Sup Ct review denied; Felling v. Motor Vehicles Division, 30 Or App 479, 567 P2d 581 (1977)

Under provision of this section which provides that agencies may utilize their experience, technical competence and specialized knowledge in evaluation of evidence, finding of Racing Commission that public may lose wagers where licensees enter horse older than conditions set forth for race was permissible though no evidence was offered on point as point was subject with which Commission could be assumed to be familiar. Gregg v. Racing Comm’n., 38 Or App 19, 588 P2d 1290 (1979), Sup Ct review denied

Where Builders Board hearing was reopened and parties stipulated that second hearing was continuation of first, order based on evidence from second hearing plus exhibits from first hearing was invalid because testimony from first hearing was not considered. Schmidt v. Builders Board, 46 Or App 509, 612 P2d 312 (1980)

Where facts which formed basis for decision of Psychiatric Security Review Board did not appear in hearing record but were supplied only from personal knowledge, they could not form the basis for agency decision without notification and opportunity to rebut. Rolfe v. Psychiatric Security Review Board, 53 Or App 941, 633 P2d 846 (1981), Sup Ct review denied

Evidence that employer of petitioner, a pharmacist, had been suspended because of same series of events which gave rise to charges against petitioner was immaterial and should have been excluded, but since there was no showing that evidence influenced board’s decision it was harmless. Nichols v. Board of Pharmacy, 61 Or App 274, 657 P2d 216 (1983), Sup Ct review denied

Order dismissing petitioner as student from Oregon Health Sciences University School of Dentistry was reversed and remanded where Hearing Committee considered factual information outside hearing record in contravention of school’s guidelines and this section. Morrison v. U. of O. Health Sciences Center, 68 Or App 870, 685 P2d 439 (1984)

Hearings officer’s “general awareness” that persons with serious disabilities are gainfully employed is not proper subject of administrative notice. Benson v. AFSD, 69 Or App 185, 684 P2d 624 (1984)

Failure of hearings officer to assist petitioner in presenting evidence constitutes abuse of hearings officer’s broad discretion in controlling hearing under this section and ORS 183.415. Berwick v. AFSD, 74 Or App 460, 703 P2d 994 (1985), Sup Ct review denied

Polygraph evidence is admissible over objection of party in prison disciplinary proceeding to test credibility of unnamed informant. Wiggett v. OSP, 85 Or App 635, 738 P2d 580 (1987), Sup Ct review denied

Party may prove case by hearsay evidence even if other party presents direct evidence. Tri-Met v. Employment Div., 88 Or App 122, 744 P2d 296 (1987)

Where facts can be found in record or were permissible inferences from facts in record, referee did not err in taking “judicial notice.” Automotive Technology v. Employment Division, 97 Or App 320, 775 P2d 916 (1989), Sup Ct review denied

Absent clear expression of contrary intent by legislature, requirement that agency decision be supported by “substantial evidence” mandates use of preponderance standard. OSCI v. Bureau of Labor and Industries, 98 Or App 548, 780 P2d 743 (1989), Sup Ct review denied; Gallant v. Board of Medical Examiners, 159 Or App 175, 974 P2d 814 (1999); Staats v. Newman, 164 Or App 18, 988 P2d 439 (1999)

Hearsay evidence is admissible under this section so long as it meets statutory test of reliability. Reguero v. Teacher Standards and Practices Comm., 312 Or 402, 822 P2d 1171 (1991)

Limitations placed on agency representatives regarding giving legal advice or making legal arguments do not apply to assistant attorneys general representing agency at contested case hearings. Llewellyn v. Board of Chiropractic Examiners, 318 Or 120, 863 P2d 469 (1993)

“Judicially cognizable facts” is equivalent to “judicially noticed fact” as used in ORS 40.065 (Oregon Evidence Code Rule 201(b)). Arlington Education Association v. Arlington School District No. 3, 177 Or App 658, 34 P3d 1197 (2001), Sup Ct review denied

In general, where party does not request that agency subpoena person who made report, agency is not obligated to produce person at hearing in order to introduce report. Cole/Dinsmore v. DMV, 336 Or 565, 87 P3d 1120 (2004)

Where petitioner, arrested for driving under influence of intoxicants, refused urinalysis after arrest then completed voluntary urinalysis at private lab on morning following arrest, urinalysis results are relevant to corroborate petitioner’s account of facts and should be admitted as evidence. Gaylord v. Driver and Motor Vehicle Services Division, 283 Or App 811, 391 P3d 900 (2017)

Correct standard of proof applicable in agency proceedings, including licensing proceedings, under Oregon Administrative Procedures Act is substantial evidence under this section, which is synonymous with preponderance of evidence standard. Dixon v. Board of Nursing, 291 Or App 207, 419 P3d 774 (2018), Sup Ct review denied

Definitions for chapter
Application of provisions of chapter to certain agencies
Delegation of rulemaking authority to named officer or employee
Description of organization
Policy statement
Policy statement
Cost of compliance effect on small businesses
Procedure for agency adoption of federal rules
Model rules of procedure
Filing and taking effect of rules
Publication of rules and orders
Publication of administrative rules in electronic form
Distribution of published rules
Petitions requesting adoption of rules
Judicial determination of validity of rule
Agency report to Legislative Assembly regarding temporary rules
Agency review of rules
Small Business Rules Advisory Committee
Agency determination of applicability of rule or statute to petitioner
Delegation of final order authority
Notice to parties before hearing of rights and procedure
Notice of right to hearing
Procedure in contested case hearing
Depositions or subpoena of material witness
Hearing on refusal to renew license
Period allowed to request hearing for license refusal on grounds other than test or inspection results
Subpoenas in contested cases
Subpoena by agency or attorney of record of party when agency not subject to ORS 183.440
Evidence in contested cases
Representation of agencies at contested case hearings
Representation of Oregon Health Authority and Department of Human Services at contested case hearings
Representation of persons other than agencies participating in contested case hearings
Nonattorney and out-of-state attorney representation of parties in certain contested case hearings
Representation of home care worker by labor union representative
Examination of evidence by agency
Agency statement of ex parte communications
Proposed order by hearing officer
Orders in contested cases
Preservation of orders in electronic format
Judicial review of agency orders
Jurisdiction for review of contested cases
Jurisdiction for review of orders other than contested cases
Decision of court on review of contested case
Form and scope of decision of reviewing court
Agency may be compelled to act
Awarding costs and attorney fees when finding for petitioner
Authority of agencies to use alternative means of dispute resolution
Housing cost impact statement required for certain proposed rules
Housing cost impact statement described
Effect of failure to prepare housing cost impact statement
Reduction of economic impact on small business
Office of Administrative Hearings
Chief administrative law judge
Administrative law judges
Contract administrative law judges
Assignment of administrative law judges
Model rules of procedure
Agencies required to use administrative law judges from Office of Administrative Hearings
Use of Office of Administrative Hearings by exempt agencies and by political subdivisions
Request for change of administrative law judge
Form of order
Office of Administrative Hearings Operating Account
Estimates of office expenses
Alternative dispute resolution
Standards and training program
Ex parte communications
Office of Administrative Hearings Oversight Committee
Permits subject to ORS 183.702
Statement of criteria and procedures for evaluating permit application
Extended term for renewed licenses
Definitions for ORS 183.710 to 183.730
Submission of adopted rule to Legislative Counsel required
Procedure for review of agency rule
Required agency response to Legislative Counsel determination
Designation of interim committees for purposes of considering rule reports
Review of rule by Oregon Sunshine Committee
Civil penalty procedures
State agency required to prepare public writings in readable form
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