71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
NOTE:  Matter within  { +  braces and plus signs + } in an
amended section is new. Matter within  { -  braces and minus
signs - } is existing law to be omitted. New sections are within
 { +  braces and plus signs + } .
 
LC 1607
 
                         Senate Bill 244
 
Sponsored by COMMITTEE ON JUDICIARY
 
 
                             SUMMARY
 
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure as
introduced.
 
  Reduces blood alcohol content that constitutes being under the
influence of intoxicants to .02 for persons convicted in any
jurisdiction of driving under the influence of intoxicants three
or more times in five years prior to current offense.
 
                        A BILL FOR AN ACT
Relating to driving under the influence of intoxicants; creating
  new provisions; and amending ORS 811.182, 813.010, 813.130,
  813.300 and 813.410.
Be It Enacted by the People of the State of Oregon:
  SECTION 1. ORS 813.010 is amended to read:
  813.010. (1) A person commits the offense of driving while
under the influence of intoxicants if the person drives a vehicle
while the person:
  (a) Has .08 percent or more by weight of alcohol in the blood
of the person as shown by chemical analysis of the breath or
blood of the person made under ORS 813.100, 813.140 or 813.150;
   { +  (b) Has .02 percent or more by weight of alcohol in the
blood of the person as shown by chemical analysis of the breath
or blood of the person made under ORS 813.100, 813.140 or 813.150
and the person has been convicted in this or another jurisdiction
of driving under the influence of intoxicants three or more times
in the five years prior to the date of the current offense; + }
    { - (b) - }  { +  (c) + } Is under the influence of
intoxicating liquor, a controlled substance or an inhalant; or
    { - (c) - }  { +  (d) + } Is under the influence of any
combination of intoxicating liquor, an inhalant and a controlled
substance.
  (2) A person may not be convicted of driving under the
influence of intoxicants on the basis of being under the
influence of a controlled substance or an inhalant unless the
fact that the person was under the influence of a controlled
substance or an inhalant is pleaded in the accusatory instrument
and is either proved at trial or is admitted by the person
through a guilty plea.
  (3) A person convicted of the offense described in this section
is subject to ORS 813.020 in addition to this section.
  (4) Except as provided in subsection (5) of this section, the
offense described in this section, driving while under the
influence of intoxicants, is a Class A misdemeanor and is
applicable upon any premises open to the public.
  (5) Driving while under the influence of intoxicants is a Class
C felony if the defendant has been convicted of driving while
under the influence of intoxicants in violation of this section
or its statutory counterpart in another jurisdiction at least
three times in the 10 years prior to the date of the current
offense and the current offense was committed in a motor vehicle.
For purposes of this subsection, a prior conviction for boating
while under the influence of intoxicants in violation of ORS
830.325 or its statutory counterpart in another jurisdiction, or
for prohibited operation of an aircraft in violation of ORS
837.080 (1)(a) or its statutory counterpart in another
jurisdiction, shall be considered a prior conviction of driving
while under the influence of intoxicants.
  (6) In addition to any other sentence that may be imposed, the
court shall impose a fine on a person convicted of driving while
under the influence of intoxicants as follows:
  (a) For a person's first conviction, a minimum of $1,000.
  (b) For a person's second conviction, a minimum of $1,500.
  (c) For a person's third or subsequent conviction, a minimum of
$2,000 if the person is not sentenced to a term of imprisonment.
  SECTION 2.  { + Section 3 of this 2001 Act is added to and made
a part of ORS chapter 813. + }
  SECTION 3. { +  For the purposes of determining whether a .02
blood alcohol content standard applies, a 'conviction' for
driving under the influence of intoxicants includes a diversion
agreement entered into in this jurisdiction pursuant to ORS
813.200, or an equivalent agreement entered into in another
jurisdiction. + }
  SECTION 4. ORS 811.182 is amended to read:
  811.182. (1) A person commits the offense of criminal driving
while suspended or revoked if the person violates ORS 811.175 and
the suspension or revocation is one described in this section, or
if the hardship or probationary permit violated is based upon a
suspension or revocation described in subsection (3) or (4) of
this section.
  (2) Affirmative defenses to the offense described in this
section are established under ORS 811.180.
  (3) The crime is a Class C felony if the suspension or
revocation resulted from any degree of murder, manslaughter,
criminally negligent homicide or assault resulting from the
operation of a motor vehicle.
  (4) The crime is a Class A misdemeanor if the suspension or
revocation is any of the following:
  (a) A suspension under ORS 809.410 (2) resulting from
commission by the driver of any degree of recklessly endangering
another person, menacing or criminal mischief, resulting from the
operation of a motor vehicle.
  (b) A revocation under ORS 809.410 (3) resulting from perjury
or the making of a false affidavit to the Department of
Transportation.
  (c) A suspension under ORS 813.410 resulting from refusal to
take a test prescribed in ORS 813.100 or for taking a breath or
blood test the result of which discloses a blood alcohol content
of:
  (A) .08 percent or more by weight if the person was not driving
a commercial motor vehicle;
  (B) .04 percent or more by weight if the person was driving a
commercial motor vehicle;   { - or - }
   { +  (C) .02 percent or more by weight if the person has been
convicted in this or another jurisdiction of driving under the
influence of intoxicants three or more times in the five years
prior to the date of the current offense; or + }
    { - (C) - }  { +  (D) + } Any amount if the person was under
21 years of age.
  (d) A suspension of a commercial driver license or right to
apply for a commercial driver license under ORS 809.410 (18)
resulting from failure to perform the duties of a driver under
ORS 811.700 while driving a commercial motor vehicle.
  (e) A suspension of a commercial driver license under ORS
809.400 (3)(b) where the person's commercial driving privileges
have been suspended or revoked by the other jurisdiction for
failure of or refusal to take a chemical test to determine the
alcoholic content of the person's blood under a statute that is
substantially similar to ORS 813.100.
  (f) A revocation resulting from habitual offender status under
ORS 809.640.
  (g) A suspension resulting from any crime punishable as a
felony with proof of a material element involving the operation
of a motor vehicle, other than a crime described in subsection
(3) of this section.
  (h) A suspension for failure to perform the duties of a driver
under ORS 811.705.
  (i) A suspension for reckless driving under ORS 811.140.
  (j) A suspension for fleeing or attempting to elude a police
officer under ORS 811.540.
  (k) A suspension for driving while under the influence of
intoxicants under ORS 813.010.
  (L) A suspension for use of a commercial motor vehicle in the
commission of a crime punishable as a felony.
  (5) In addition to any other sentence that may be imposed, if a
person is convicted of the offense described in this section and
the underlying suspension resulted from driving while under the
influence of intoxicants, the court shall impose a fine of at
least $1,000 if it is the person's first conviction for criminal
driving while suspended or revoked and at least $2,000 if it is
the person's second or subsequent conviction.
  (6) The Oregon Criminal Justice Commission shall classify a
violation of this section that is a felony as crime category 6 of
the rules of the Oregon Criminal Justice Commission.
  SECTION 5. ORS 813.130 is amended to read:
  813.130. This section establishes the requirements for
information about rights and consequences for purposes of ORS
813.100 and 813.410. The following apply to the information about
rights and consequences:
  (1) The information about rights and consequences shall be
substantially in the form prepared by the Department of
Transportation. The department may establish any form it
determines appropriate and convenient.
  (2) The information about rights and consequences shall be
substantially as follows:
  (a) Driving under the influence of intoxicants is a crime in
Oregon, and the person is subject to criminal penalties if a test
under ORS 813.100 shows that the person is under the influence of
intoxicants. If the person refuses a test or fails, evidence of
the refusal or failure may also be offered against the person.
  (b) The person will fail a test under ORS 813.100 for purposes
of criminal penalties if the test discloses a blood alcohol
content of .08 percent or more by weight.  { + The person will
fail a test under ORS 813.100 for purposes of criminal penalties
if the test discloses a blood alcohol content of .02 percent or
more by weight and the person has been convicted in this or
another jurisdiction of driving under the influence of
intoxicants three or more times in the five years prior to the
date of the current offense. + } The person will fail a test for
purposes of the Motorist Implied Consent Law if the test
discloses a blood alcohol content of:
  (A) .08 percent or more by weight if the person was not driving
a commercial motor vehicle;
  (B) .04 percent or more by weight if the person was driving a
commercial motor vehicle;   { - or - }
   { +  (C) .02 percent or more by weight if the person has been
convicted in this or another jurisdiction of driving under the
influence of intoxicants three or more times in the five years
prior to the date of the current offense; or + }
    { - (C) - }  { +  (D) + } Any amount if the person was under
21 years of age.
  (c) If the person refuses or fails a test under ORS 813.100,
the person's driving privileges will be suspended. The outcome of
a criminal charge for driving under the influence of intoxicants
will not affect the suspension. The suspension will be
substantially longer if the person refuses a test.
  (d) If the person refuses a test or fails a breath test under
ORS 813.100 and has an Oregon driver license or permit, the
license or permit will be taken immediately and, unless the
person does not currently have full valid driving privileges, a
temporary driving permit will be issued to the person.
  (e) If the person refuses a test under ORS 813.100, the person
will not be eligible for a hardship permit for at least 90 days,
and possibly for one year, depending on the person's driving
record. The person may possibly qualify for a hardship permit in
30 days if the person fails a test, depending on the person's
driving record.
  (f) After taking a test under ORS 813.100, the person will have
a reasonable opportunity, upon request, for an additional
chemical test for blood alcohol content to be performed at the
person's own expense by a qualified individual of the person's
choosing.
  (g) The person has a right to a hearing to challenge the
validity of the suspension before the suspension becomes
effective. The person must make a written request to the
department for such a hearing. If the person wins at the hearing,
the person's driving privileges will not be suspended. If the
person loses at the hearing, the suspension will remain in effect
during any court review of the hearing.
  (h) The following times:
  (A) If the person is issued a temporary driving permit under
ORS 813.100, the number of hours before the driving permit will
be effective and the number of days the permit will be effective.
  (B) The number of days within which a person must request a
hearing under ORS 813.410.
  (C) The number of days within which a hearing under ORS 813.410
will be held.
  (3) If the person is driving a commercial motor vehicle, the
information about rights and consequences shall include, in
addition to the provisions of subsection (2) of this section,
substantially the following:
  (a) If the person refuses a test under ORS 813.100 or submits
to a breath or blood test and the level of alcohol in the
person's blood is .04 percent or more by weight, the person's
commercial driver license or right to apply for a commercial
driver license will be suspended and no hardship permit
authorizing the person to drive a commercial motor vehicle will
be issued. The suspension will be substantially longer if the
person refuses a test.
  (b) The suspension of the person's commercial driver license or
right to apply for a commercial driver license will be for the
person's lifetime if:
  (A) The person refuses a test under ORS 813.100 or submits to a
breath or blood test and the level of alcohol in the person's
blood is .04 percent or more by weight; and
  (B) The person's commercial driver license or right to apply
for a commercial driver license has previously been suspended
because the person was convicted of a crime punishable as a
felony, of failure to perform the duties of a driver or of
driving while under the influence of intoxicants or because the
person refused a previous test or submitted to a breath or blood
test and the level of alcohol in the person's blood was .04
percent or more by weight.
  (4) Nothing in this section prohibits the department from
providing additional information concerning rights and
consequences that the department considers convenient or
appropriate.
  SECTION 6. ORS 813.300 is amended to read:
  813.300. (1) At the trial of any civil or criminal action, suit
or proceeding arising out of the acts committed by a person
driving a motor vehicle while under the influence of intoxicants,
if the amount of alcohol in the person's blood at the time
alleged is less than .08 percent by weight of alcohol as shown by
chemical analysis of the person's breath or blood, it is indirect
evidence that may be used with other evidence, if any, to
determine whether or not the person was then under the influence
of intoxicants.
  (2) Not less than .08 percent by weight of alcohol in a
person's blood constitutes being under the influence of
intoxicating liquor.
   { +  (3) Not less than .02 percent by weight of alcohol in a
person's blood constitutes being under the influence of
intoxicating liquor if the person has been convicted in this or
another jurisdiction of driving under the influence of
intoxicants three or more times in the five years prior to the
date of the current offense. + }
    { - (3) - }   { + (4) + } Notwithstanding   { - subsection
(2) - }  { +  subsections (2) and (3) + } of this section, for
purposes of the Motorist Implied Consent Law as defined in ORS
801.010, for a person who is under 21 years of age, any amount of
alcohol in the blood constitutes being under the influence of
intoxicating liquor.
    { - (4) - }   { + (5) + } Percent by weight of alcohol in the
blood shall be based upon grams of alcohol per one hundred cubic
centimeters of blood.
  SECTION 7. ORS 813.410 is amended to read:
  813.410. (1) If the Department of Transportation receives from
a police officer a report that is in substantial compliance with
ORS 813.120, the department shall suspend the driving privileges
of the person in this state on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A suspension of driving privileges imposed under this
subsection shall be for a period of time established under ORS
813.420.
  (2) If the department receives from a police officer a report
pursuant to ORS 813.120 that discloses that the person was
driving a commercial motor vehicle and refused to submit to a
test under ORS 813.100 or submitted to a breath or blood test and
the person's blood, as shown by the test, had .04 percent or more
by weight of alcohol, { +   + }the department shall suspend the
person's commercial driver license on the 30th day after the date
of arrest or, if the report indicates that the person failed a
blood test, on the 60th day after receipt of the report, unless,
at a hearing described under this section, the department
determines that the suspension would not be valid as described in
this section. A commercial driver license suspension imposed
under this subsection shall be for a period of time established
under ORS 813.404.
  (3) If within 10 days from the date of arrest, or, if the
person fails a blood test, within 10 days from the date the
department sends notice of suspension, the department receives a
written request for a hearing from a person whose driving
privileges or commercial driver license the department proposes
to suspend under this section, the department shall provide a
hearing in accordance with this section. Except as otherwise
provided under this section, a hearing held by the department
under this section shall be subject to the provisions for
contested cases, other than appeal provisions, under ORS 183.310
to 183.550. The applicable appeal provisions are as provided
under ORS 813.450 and section 24, chapter 672, Oregon Laws 1985.
Notwithstanding ORS 809.430, the department is not required to
give any notice of intent to suspend or suspension in addition to
that provided under ORS 813.100.
  (4) A hearing required by this section is subject to all of the
following:
  (a) The hearing shall be before a hearing officer assigned from
the Hearing Officer Panel established under section 3, chapter
849, Oregon Laws 1999.
  (b) 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 alleged offense
occurred or at any place within 100 miles of the place where the
offense is alleged to have occurred, as established by the
department by rule.
  (c) The department may authorize the hearing officer to issue a
final order in any case.
  (d) A person who requests a hearing under this section and who
fails, without just cause, to appear in person or through an
attorney waives the right to a hearing notwithstanding the
provisions of ORS 183.415. If a person waives a right to a
hearing under this paragraph, the department is not required to
make any showing at hearing.
  (e) Except as provided in ORS 813.440 or upon remand under ORS
813.450, the department shall hold the hearing and issue a final
order within 30 days of the date of the arrest or, if the person
fails a blood test, within 60 days from the date the department
received the report of the failure.
  (f) In connection with the hearing, the department or its
authorized representative may administer oaths and shall issue
subpoenas for the attendance of witnesses at the hearing
requested by the person or the department and the production of
relevant documents.
  (g) The hearing shall be recorded by whatever means may be
determined by the department and shall include testimony and
exhibits, if any. The record of the proceedings shall not be
transcribed unless requested by a party to the proceeding.
  (5) This subsection shall be narrowly construed so as to effect
the legislative purpose of limiting the scope of hearings under
this section. The scope of a hearing under this section shall be
limited to whether the suspension is valid as described in this
subsection. A suspension under this section is valid if all of
the following requirements have been met:
  (a) The person, at the time the person was requested to submit
to a test under ORS 813.100, was under arrest for driving while
under the influence of intoxicants in violation of ORS 813.010 or
a municipal ordinance.
  (b) The police had reasonable grounds to believe, at the time
the request was made, that the person arrested had been driving
under the influence of intoxicants in violation of ORS 813.010 or
of a municipal ordinance.
  (c) The person refused a test under ORS 813.100, or took a
breath or blood test and the test disclosed that the level of
alcohol in the person's blood at the time of the test was:
  (A) .08 percent or more by weight if the person was not driving
a commercial motor vehicle;
  (B) .04 percent or more by weight if the person was driving a
commercial motor vehicle;   { - or - }
   { +  (C) .02 percent or more by weight if the person has been
convicted in this or another jurisdiction of driving under the
influence of intoxicants three or more times in the five years
prior to the date of the current offense; or + }
 
    { - (C) - }   { + (D) + } Any amount if the person was under
21 years of age.
  (d) If the report under ORS 813.120 indicates that the person
was driving a commercial motor vehicle, the vehicle was in fact a
commercial motor vehicle as defined in ORS 801.208.
  (e) The person had been informed under ORS 813.100 of rights
and consequences as described under ORS 813.130.
  (f) The person was given written notice required under ORS
813.100.
  (g) If the person arrested submitted to a test under ORS
813.100, the person administering the test was qualified to
administer the test under ORS 813.160.
  (h) If the person arrested submitted to a test under ORS
813.100, the methods, procedures and equipment used in the test
complied with requirements under ORS 813.160.
  (6) A suspension imposed under this section shall remain in
effect pending any appeal or remand of a final order issued under
this section and there shall be no stay of the suspension pending
appeal or remand.
  (7) Unless a person fails, without just cause, to appear in
person or through an attorney at a hearing requested under this
section, a person shall have the right to appeal any final order
by the department after a hearing under this section by filing a
petition. The following apply to this subsection:
  (a) The person shall file the petition in the circuit court for
the county where the person resides or, if the person does not
reside in Oregon, in the circuit court of the county in which the
arrest took place within 30 days after issuance of the final
order of the department.
  (b) The court upon receipt of the petition shall set the matter
for hearing upon 10 days' notice to the department and the
petitioner unless hearing is waived by both the department and
the petitioner.
  SECTION 8. ORS 813.410, as amended by section 194, chapter 849,
Oregon Laws 1999, is amended to read:
  813.410. (1) If the Department of Transportation receives from
a police officer a report that is in substantial compliance with
ORS 813.120, the department shall suspend the driving privileges
of the person in this state on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A suspension of driving privileges imposed under this
subsection shall be for a period of time established under ORS
813.420.
  (2) If the department receives from a police officer a report
pursuant to ORS 813.120 that discloses that the person was
driving a commercial motor vehicle and refused to submit to a
test under ORS 813.100 or submitted to a breath or blood test and
the person's blood, as shown by the test, had .04 percent or more
by weight of alcohol, the department shall suspend the person's
commercial driver license on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A commercial driver license suspension imposed under
this subsection shall be for a period of time established under
ORS 813.404.
  (3) If within 10 days from the date of arrest, or, if the
person fails a blood test, within 10 days from the date the
department sends notice of suspension, the department receives a
written request for a hearing from a person whose driving
privileges or commercial driver license the department proposes
to suspend under this section, the department shall provide a
hearing in accordance with this section. Except as otherwise
provided under this section, a hearing held by the department
under this section shall be subject to the provisions for
contested cases, other than appeal provisions, under ORS 183.310
to 183.550. The applicable appeal provisions are as provided
under ORS 813.450 and section 24, chapter 672, Oregon Laws 1985.
Notwithstanding ORS 809.430, the department is not required to
give any notice of intent to suspend or suspension in addition to
that provided under ORS 813.100.
  (4) A hearing required by this section is subject to all of the
following:
  (a) The hearing shall be before a hearing officer designated by
the department.
  (b) 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 alleged offense
occurred or at any place within 100 miles of the place where the
offense is alleged to have occurred, as established by the
department by rule.
  (c) The department may authorize the hearing officer to issue a
final order in any case.
  (d) A person who requests a hearing under this section and who
fails, without just cause, to appear in person or through an
attorney waives the right to a hearing notwithstanding the
provisions of ORS 183.415. If a person waives a right to a
hearing under this paragraph, the department is not required to
make any showing at hearing.
  (e) Except as provided in ORS 813.440 or upon remand under ORS
813.450, the department shall hold the hearing and issue a final
order within 30 days of the date of the arrest or, if the person
fails a blood test, within 60 days from the date the department
received the report of the failure.
  (f) In connection with the hearing, the department or its
authorized representative may administer oaths and shall issue
subpoenas for the attendance of witnesses at the hearing
requested by the person or the department and the production of
relevant documents.
  (g) The hearing shall be recorded by whatever means may be
determined by the department and shall include testimony and
exhibits, if any. The record of the proceedings shall not be
transcribed unless requested by a party to the proceeding.
  (5) This subsection shall be narrowly construed so as to effect
the legislative purpose of limiting the scope of hearings under
this section. The scope of a hearing under this section shall be
limited to whether the suspension is valid as described in this
subsection. A suspension under this section is valid if all of
the following requirements have been met:
  (a) The person, at the time the person was requested to submit
to a test under ORS 813.100, was under arrest for driving while
under the influence of intoxicants in violation of ORS 813.010 or
a municipal ordinance.
  (b) The police had reasonable grounds to believe, at the time
the request was made, that the person arrested had been driving
under the influence of intoxicants in violation of ORS 813.010 or
of a municipal ordinance.
  (c) The person refused a test under ORS 813.100, or took a
breath or blood test and the test disclosed that the level of
alcohol in the person's blood at the time of the test was:
  (A) .08 percent or more by weight if the person was not driving
a commercial motor vehicle;
  (B) .04 percent or more by weight if the person was driving a
commercial motor vehicle;   { - or - }
   { +  (C) .02 percent or more by weight if the person has been
convicted in this or another jurisdiction of driving under the
influence of intoxicants three or more times in the five years
prior to the date of the current offense; or + }
    { - (C) - }   { + (D) + } Any amount if the person was under
21 years of age.
  (d) If the report under ORS 813.120 indicates that the person
was driving a commercial motor vehicle, the vehicle was in fact a
commercial motor vehicle as defined in ORS 801.208.
  (e) The person had been informed under ORS 813.100 of rights
and consequences as described under ORS 813.130.
  (f) The person was given written notice required under ORS
813.100.
  (g) If the person arrested submitted to a test under ORS
813.100, the person administering the test was qualified to
administer the test under ORS 813.160.
  (h) If the person arrested submitted to a test under ORS
813.100, the methods, procedures and equipment used in the test
complied with requirements under ORS 813.160.
  (6) A suspension imposed under this section shall remain in
effect pending any appeal or remand of a final order issued under
this section and there shall be no stay of the suspension pending
appeal or remand.
  (7) Unless a person fails, without just cause, to appear in
person or through an attorney at a hearing requested under this
section, a person shall have the right to appeal any final order
by the department after a hearing under this section by filing a
petition. The following apply to this subsection:
  (a) The person shall file the petition in the circuit court for
the county where the person resides or, if the person does not
reside in Oregon, in the circuit court of the county in which the
arrest took place within 30 days after issuance of the final
order of the department.
  (b) The court upon receipt of the petition shall set the matter
for hearing upon 10 days' notice to the department and the
petitioner unless hearing is waived by both the department and
the petitioner.
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