ORS 809.440
Hearing and administrative review procedures
- defenses
- rules
(1)
When other procedures described under this section are not applicable to a suspension or revocation under ORS 809.409 (Revocation for conviction of crime) to 809.421 (Suspensions for miscellaneous driving-related actions), the procedures described in this subsection shall be applicable. All of the following apply to this subsection:(a)
The hearing shall be given before the department imposes the suspension or revocation of driving privileges.(b)
Before the hearing, the department shall notify the person in the manner described in ORS 809.430 (Notice of suspension, cancellation or revocation).(c)
The hearing shall be in the county where the person resides unless the person and the department agree otherwise.(d)
The hearing shall be conducted by an administrative law judge assigned from the Office of Administrative Hearings established under ORS 183.605 (Office of Administrative Hearings).(2)
The following apply when administrative review is provided under any statute or rule of the department:(a)
An administrative review shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.(b)
It shall be a defense to the department’s action if a petitioner can establish that:(A)
A conviction on which the department’s action is based was for an offense that did not involve a motor vehicle and the department’s action is permitted only if the offense involves a motor vehicle.(B)
An out-of-state conviction on which the department’s action is based was for an offense that is not comparable to an offense under Oregon law.(C)
The records relied on by the department identify the wrong person.(c)
A person requesting administrative review has the burden of showing by a preponderance of the evidence that the person is not subject to the action.(d)
Actions subject to administrative review shall be exempt from the provisions of ORS chapter 183 applicable to contested cases, and from the provisions of subsection (5) of this section applicable to post-imposition hearings. A suspension, revocation or cancellation may not be stayed during the administrative review process or by the filing of a petition for judicial review. A court having jurisdiction may order the suspension, revocation or cancellation stayed pending judicial review.(e)
Judicial review of a department order affirming a suspension or revocation after an administrative review shall be available as for review of orders other than contested cases, and the department may not be subject to default for failure to appear in such proceedings. The department shall certify its record to the court within 20 days after service upon the department of the petition for judicial review.(f)
If the suspension or revocation is upheld on review by a court, the suspension or revocation shall be ordered for the length of time appropriate under the appropriate statute except that the time shall be reduced by any time prior to the determination by the court that the suspension or revocation was in effect and was not stayed.(g)
The department shall adopt any rules governing administrative review that are considered necessary or convenient by the department.(3)
At a hearing for failure to make a future responsibility filing or false certification of financial responsibility requirements under ORS 809.415 (Suspensions for conduct involving judgments, financial responsibility, dishonesty), it is a defense to the department’s action if the petitioner can establish that:(a)
An error was committed by the department;(b)
The person in fact was in compliance with financial responsibility requirements on the date specified by the department by rule under ORS 806.150 (Department verification program);(c)
An error was committed by an insurance company in notifying the department regarding the correctness of proof of compliance with financial responsibility requirements provided under ORS 806.150 (Department verification program);(d)
The person was not in compliance with financial responsibility requirements on the date specified by the department by rule under ORS 806.150 (Department verification program), and the department also determines that the person reasonably and in good faith believed that the person was in compliance with financial responsibility requirements on the date the department sent the notice of verification and that the person currently is in compliance with financial responsibility requirements; or(e)
At the time of the accident the person reasonably and in good faith believed that the person was in compliance with financial responsibility requirements, and the person is currently in compliance with financial responsibility requirements.(4)
When permitted under this section or under any other statute, a hearing may be expedited under procedures adopted by the department by rule. The procedures may include a limited time in which the person may request a hearing, requirements for telephone hearings, expedited procedures for issuing orders and expedited notice procedures.(5)
When permitted under ORS 809.417 (Suspension for conduct regarding accidents), 809.419 (Suspensions for physical or mental condition or impairment), 809.421 (Suspensions for miscellaneous driving-related actions) or 809.510 (Conviction of crime) to 809.545 (Administrative review), a hearing may be a post-imposition hearing under this subsection. A post-imposition hearing is a hearing that occurs after the department imposes the suspension or revocation of driving privileges. All of the following apply to this subsection:(a)
The department must provide notice in the manner described in ORS 809.430 (Notice of suspension, cancellation or revocation) before the suspension or revocation may take effect.(b)
Except as provided in this subsection, the hearing shall be conducted as a contested case in accordance with ORS chapter 183.(c)
Unless there is an agreement between the person and the department that the hearing be conducted elsewhere, the hearing shall be held either in the county where the person resides or at any place within 100 miles, as established by the department by rule.(6)
The department has complied with a requirement for a hearing or administrative review if the department has provided an opportunity for hearing or review and the person with the right to the hearing or review has not requested it. Any request for hearing or review must be made in writing.(7)
For any hearing described under this section, and for administrative review described under this section, no further notice need be given by the department if the suspension or revocation is based upon a conviction and the court gives notice, in a form established by the department, of the rights to a hearing or review and of the suspension or revocation. [1985 c.669 §4 (enacted in lieu of 1983 c.338 §§356,357); 1987 c.437 §1; 1989 c.636 §37; 1991 c.702 §3; 1997 c.249 §225; 1999 c.770 §6; 1999 c.849 §§190,191; 2003 c.75 §66; 2003 c.402 §§29,30; 2011 c.355 §16; 2013 c.237 §22; 2021 c.630 §83]
Source:
Section 809.440 — Hearing and administrative review procedures; defenses; rules, https://www.oregonlegislature.gov/bills_laws/ors/ors809.html.
Notes of Decisions
Petitioner seeking administrative review is entitled to raise defenses not listed in this section because list of defenses is not exclusive. Richardson v. DMV, 253 Or App 456, 292 P3d 557 (2012)
Attorney General Opinions
Lack of Department of Transportation discretion regarding imposition of mandatory suspension or mandatory suspension lengths, (2007) No. 8284
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