Driving Under the Influence of Intoxicants

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]

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)

Source

Last accessed
Mar. 11, 2023

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