Suspension upon receipt of police report on implied consent test
- hearing
- validity of suspension
- appeal
- rules
Source:
Section 813.410 — Suspension upon receipt of police report on implied consent test; hearing; validity of suspension; appeal; rules, https://www.oregonlegislature.gov/bills_laws/ors/ors813.html.
Notes of Decisions
Under former similar statute (ORS 482.540)
The request to consult a lawyer before taking a breathalyzer test constitutes a refusal under this statute. Lundquist v. Motor Vehicles Div., 23 Or App 507, 543 P2d 29 (1975)
Under former similar statute (ORS 482.541)
Under this section, review of suspension order was limited to whether officers had reasonable grounds to believe that petitioner was driving, rather than whether petitioner was actually driving while under influence of intoxicants. Leabo v. State ex rel Motor Vehicles Div., 46 Or App 55, 610 P2d 317 (1980), Sup Ct review denied
Existence of probable cause to arrest for violation of ORS 813.010 is not determinative under this section, so where defendant was arrested for violation of invalid municipal ordinance, factual determination as to actual grounds for arrest had to be made. Brinkley v. Motor Vehicles Div., 47 Or App 25, 613 P2d 1071 (1980)
Driver arrested for DUII has right to independent blood alcohol test regardless of whether breath test registers more or less than 0.08 percent. Wimmer v. MVD, 75 Or App 287, 706 P2d 182 (1985), Sup Ct review denied
Unreasonable delay of petitioner before responding to requests to take intoxication test amounted to refusal and Motor Vehicles Division was justified in suspending license. Luth v. Motor Vehicles Division, 87 Or App 137, 741 P2d 897 (1987)
MVD may not suspend driving privileges based on breath test result unless driver is first validly arrested. Pooler v. MVD, 88 Or App 475, 746 P2d 716 (1987), aff’d 306 Or 47, 755 P2d 701 (1988)
[Former] ORS 41.130 (res judicata, collateral estoppel) is inapplicable to procedure under this section for suspension of license as administrative hearing is not court and hearings officer in executive branch agency is not judge. State v. Ratliff, 304 Or 254, 744 P2d 247 (1987)
Under former similar statute (ORS 482.560)
This section does not require responsive pleading by Division, although court may permit a response. Fiala v. Motor Vehicles Division, 30 Or App 589, 567 P2d 603 (1977)
In general
In order for police officer to validly “possess” permit to administer blood alcohol test, officer does not have to prove actual physical possession of written document. Fleming v. MVD, 87 Or App 613, 743 P2d 764 (1987)
In implied consent hearing, validity of driver’s arrest for DUII must be considered only if driver raises issue during evidentiary part of hearing and where driver did not request consideration of validity of arrest until closing argument, license was validly suspended. Bish v. MVD, 97 Or App 648, 776 P2d 1320 (1989); Crawford v. MVD, 98 Or App 354, 779 P2d 196 (1989), Sup Ct review denied
Petitioner’s response to request to take breath test of “No, not without the advice of an attorney” constituted refusal. Schrier v. MVD, 99 Or App 209, 781 P2d 1226 (1989)
Motor Vehicles Division must consider defense, if raised, that licensee was not driving before it may suspend licensee’s license. Hilton v. MVD, 308 Or 150, 775 P2d 1378 (1989)
Respondent’s driving in early morning and twice crossing over fog line gave officer basis for reasonable suspicion that respondent was driving under influence of intoxicants. Fischer v. MVD, 101 Or App 580, 792 P2d 445 (1990)
Under this section or implied consent law, person need only know that person is under arrest, not that person is under arrest for DUII. Oviedo v. MVD, 102 Or App 110, 792 P2d 1244 (1990)
Where, when asked to take breath test, respondent said, “No, I want a blood test, not a breath test. I want an attorney,” respondent’s statement constituted refusal to take test. Ahlbin v. MVD, 113 Or App 441, 833 P2d 1291 (1992)
Unreasonable delay of petitioner before responding to requests to take intoxication test amounted to refusal. Ranger v. MVD, 122 Or App 141, 856 P2d 1050 (1993)
Request by officer that driver take breath test did not need to follow particular form. Altree v. MVD, 125 Or App 215, 865 P2d 441 (1993)
Reasonable basis for suspecting that infraction has occurred is sufficient to permit stop. State v. Matthews, 126 Or App 154, 868 P2d 14 (1994), aff’d 320 Or 398, 884 P2d 1224 (1994)
Whether test “disclosed” unlawful level of blood alcohol is determined by numeric readout of breath testing machine; therefore accuracy of machine is not in issue at license suspension hearing. Owens v. MVD, 319 Or 259, 875 P2d 463 (1994)
Evidence disputing accuracy of properly performed breath test is not admissible at hearing. Lawrie v. MVD, 134 Or App 575, 895 P2d 790 (1995)
Where evidence does not directly establish that officer believed that traffic infraction had occurred, hearings officer may not infer belief from other facts presented. Pomerenke v. MVD, 134 Or App 630, 896 P2d 1214 (1995), Sup Ct review denied
Substantial compliance of police report with ORS 813.120 is jurisdictional prerequisite to license suspension. Coulter v. DMV, 168 Or App 442, 4 P3d 89 (2000)
“Final order” means post-hearing order that imposes suspension or declares suspension invalid. Grossman v. DMV, 183 Or App 623, 54 P3d 629 (2002)
Request for new hearing does not toll time for seeking review of final order. Grossman v. DMV, 183 Or App 623, 54 P3d 629 (2002)
Petitioner claiming lack of opportunity to communicate with counsel or others has burden of proving restriction placed on ability to communicate was unreasonable. Brown v. DMV, 219 Or App 607, 185 P3d 459 (2008), Sup Ct review denied
List of prerequisites for valid suspension of license is not exclusive. Hays v. DMV, 228 Or App 689, 209 P3d 405 (2009)
Law Review Citations
In general
30 WLR 723 (1994)
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