ORS 813.440
Grounds for hearing on validity of suspension

  • rules

(1)

Notwithstanding ORS 813.410 (Suspension upon receipt of police report on implied consent test), the Department of Transportation may provide a hearing to determine the validity of a suspension under ORS 813.410 (Suspension upon receipt of police report on implied consent test) only if the time requirements under ORS 813.410 (Suspension upon receipt of police report on implied consent test) could not be met because of any of the following:

(a)

The person’s physical incapacity, verified by a physician to the satisfaction of the department to be of a nature that would prevent the person from making the appropriate request or attending the hearing.

(b)

A death in the immediate family of the person, verified to the satisfaction of the department.

(c)

An error of the department.

(d)

The inability of a subpoenaed police officer to appear due to the officer’s illness, vacation or official duty conflicts. The department shall set forth by rule the conditions that constitute “official duty conflicts.” A hearing may not be rescheduled more than once for reasons described in this paragraph.

(e)

A request for a change of administrative law judge under ORS 183.645 (Request for change of administrative law judge).

(f)

The inability of the person’s attorney to appear due to the attorney’s illness, vacation or scheduling conflict arising from other court or administrative hearing appearances. A hearing must be rescheduled no later than 45 days after the date of the original hearing and may not be rescheduled more than once for reasons described in this paragraph.

(g)

Other just cause as defined by the department by administrative rule.

(2)

A hearing held under this section is subject to the same provisions as a hearing held under ORS 813.410 (Suspension upon receipt of police report on implied consent test), except that the department is not required to hold the hearing and make the determination within the time required by ORS 813.410 (Suspension upon receipt of police report on implied consent test).

(3)

The granting of a hearing under this section shall not delay the imposition of a suspension under ORS 813.410 (Suspension upon receipt of police report on implied consent test) within the time required under ORS 813.410 (Suspension upon receipt of police report on implied consent test). However, if a person establishes that the person was deprived by either department error or a subpoenaed police officer’s illness, vacation or official duty conflicts of an opportunity to appear at a hearing, the department shall rescind the suspension and shall promptly schedule a subsequent hearing to determine the validity of the suspension under ORS 813.410 (Suspension upon receipt of police report on implied consent test). In other cases under this section, when the department is unable to hold the hearing within the time required by ORS 813.410 (Suspension upon receipt of police report on implied consent test), the department shall rescind any suspension imposed under ORS 813.410 (Suspension upon receipt of police report on implied consent test) only if the department determines, at a hearing held under this section, that the suspension was not valid as described under ORS 813.410 (Suspension upon receipt of police report on implied consent test).

(4)

The following apply to this section:

(a)

The department shall issue a final order within 10 days after the hearing described in this section.

(b)

If the department has rescinded a suspension under subsection (3) of this section and if the department, at the hearing described in this section, determines that the suspension is valid as described under ORS 813.410 (Suspension upon receipt of police report on implied consent test), the department shall reinstate the suspension effective five days after the final order is issued.

(c)

Notwithstanding ORS 809.430 (Notice of suspension, cancellation or revocation), no additional notice or order of suspension need be given. [1985 c.16 §169; 1985 c.672 §14; 1987 c.272 §5; 1993 c.600 §2; 1999 c.831 §1; 2001 c.294 §§9,10; 2003 c.75 §68; 2009 c.520 §1]

Source: Section 813.440 — Grounds for hearing on validity of suspension; rules, https://www.­oregonlegislature.­gov/bills_laws/ors/ors813.­html.

Notes of Decisions

“Official duty conflicts” of officer includes only offical duties that require officer’s presence elsewhere and prevent attendance at hearing. Blaisdell v. Motor Vehicles Division, 145 Or App 468, 929 P2d 1073 (1996)

“Illness” means unhealthy condition of body or mind that impedes person who is to attend hearing. Walker v. DMV, 254 Or App 543, 295 P3d 167 (2013)

Arresting police officer’s jury duty is not “official duty conflict” because jury duty is not conflict that results from obligatory tasks connected with position of police officer. Johnson v. DMV, 261 Or App 641, 322 P3d 1157 (2014)

813.010
Driving under the influence of intoxicants 813.011
Felony driving under the influence of intoxicants 813.012
Crime classification for purposes of rules of Oregon Criminal Justice Commission 813.017
Arraignment 813.020
Fee to be paid on conviction 813.021
Requirements for screening interview and treatment program 813.022
Proof of treatment 813.023
Alternative payment methods for screening interview or treatment program 813.025
Designation of agency to perform screening interview and treatment program 813.030
Amount of fee 813.040
Standards for determination of problem condition involving alcohol, inhalants or controlled substances 813.050
Out-of-service orders for operators of commercial motor vehicles 813.055
Civil penalty for violation of out-of-service order or notice 813.095
Offense of refusal to take a test for intoxicants 813.100
Implied consent to breath or blood test 813.110
Temporary permit upon confiscation of license 813.120
Police report to department 813.130
Rights of and consequences for person asked to take test 813.131
Implied consent to urine test 813.132
Consequences of refusing to take urine test 813.135
Implied consent to field sobriety tests 813.136
Consequence of refusal or failure to submit to field sobriety tests 813.140
Chemical test with consent 813.150
Chemical test at request of arrested person 813.160
Methods of conducting chemical analyses 813.170
Plea agreement prohibited 813.200
Notice of availability of diversion 813.210
Petition 813.215
Eligibility for diversion 813.220
Matters to be considered by court in determining to allow diversion agreement 813.222
Right of victim to be present at hearing 813.225
Petition for extension of diversion period 813.230
Diversion agreement 813.233
Exemption from completing treatment program in this state 813.235
Attendance at victim impact treatment session as condition of diversion 813.240
Amount and distribution of filing fee 813.245
Booking 813.250
Motion to dismiss charge on completion of diversion 813.252
Motion to dismiss charge when minimal fine amount remains 813.255
Termination of diversion 813.260
Designation of agencies to perform screening interviews 813.270
Intoxicated Driver Program Fund 813.300
Use of blood alcohol percentage as evidence 813.310
Refusal to take chemical test admissible as evidence 813.320
Effect of implied consent law on evidence 813.322
Department of State Police rules regarding breath tests as evidence 813.324
Use of testimony from implied consent hearing as evidence in prosecution 813.326
Felony driving while under the influence of intoxicants 813.328
Notice of intent to challenge validity of prior convictions 813.400
Suspension or revocation upon conviction 813.410
Suspension upon receipt of police report on implied consent test 813.412
Role of police officer in implied consent hearing 813.420
Duration of suspension for refusal or failure of test 813.430
Grounds for increase in duration of suspension 813.440
Grounds for hearing on validity of suspension 813.450
Appeal from suspension for refusal or failure of breath test 813.460
Department procedures upon verification of suspension of driving privileges of wrong person 813.470
Department notation on record of person acquitted after suspension 813.520
Limitations on authority to issue hardship permit or reinstate driving privileges 813.599
Definitions 813.600
Ignition interlock program 813.602
Circumstances under which ignition interlock device required 813.603
Waiver of costs of ignition interlock device 813.604
Notice of court order 813.606
Exception for employee otherwise required to have device 813.608
Knowingly furnishing motor vehicle without ignition interlock device 813.610
Soliciting another to blow into ignition interlock device 813.612
Unlawfully blowing into ignition interlock device 813.614
Tampering with ignition interlock device 813.616
Use of certain moneys to pay for ignition interlock program 813.620
Suspension of driving privileges for failing to provide proof of device installation or for tampering with device 813.630
Notice of ignition interlock device installation and negative reports 813.635
Consequence for negative reports generated from ignition interlock device 813.640
Additional treatment following negative reports 813.645
Motion to vacate requirement to install and use ignition interlock device 813.660
Service center and manufacturer’s representative certification 813.665
Criminal background check for technicians 813.670
Complaint process 813.680
Ignition Interlock Device Management Fund
Green check means up to date. Up to date

Current through early 2024

§ 813.440’s source at oregon​.gov