72nd OREGON LEGISLATIVE ASSEMBLY--2003 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 2444-1
House Bill 2900
Sponsored by Representative MILLER; Representatives ACKERMAN,
ANDERSON, BACKLUND, BARKER, BARNHART, BATES, BROWN, BUTLER,
DALTO, FLORES, JENSON, KNOPP, KRIEGER, KROPF, KRUMMEL, KRUSE,
MORGAN, PATRIDGE, TOMEI, WILLIAMS, Senators ATKINSON, BURDICK,
DEVLIN, GEORGE, HARPER, MINNIS, MORRISETTE, C STARR, WALKER (at
the request of Crime Victims United, Anne Pratt, Bruce Pratt,
Janet Lovelace)
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.
Requires Department of Transportation to impose civil penalty
of at least $500 and not more than $1,000 on person who refuses
to take breath test.
A BILL FOR AN ACT
Relating to implied consent; creating new provisions; and
amending ORS 813.130, 813.410 and 813.460.
Be It Enacted by the People of the State of Oregon:
SECTION 1. 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 the department receives from a police officer a report
pursuant to ORS 813.120 that indicates that the person refused to
take a breath test and the department imposes a suspension under
this section, the department shall also impose a civil penalty on
the person. The civil penalty shall be imposed in the manner
provided by ORS 183.090. A civil penalty imposed under this
subsection shall be not less than $500 nor more than $1,000. + }
{ - (3) - } { + (4) + } 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) - } { + (5) + } 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) - } { + (6) + } 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) 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) - } { + (7) + } 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) - } { + (8) + } 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 2. 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 the department receives from a police officer a
report pursuant to ORS 813.120 that indicates that the person
refused to take a breath test and the department imposes a
suspension under this section, the department shall also impose a
civil penalty on the person. The civil penalty shall be imposed
in the manner provided by ORS 183.090. A civil penalty imposed
under this subsection shall be not less than $500 nor more than
$1,000. + }
{ - (3) - } { + (4) + } 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) - } { + (5) + } 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) - } { + (6) + } 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) 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) - } { + (7) + } 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) - } { + (8) + } 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 3. 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 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) 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) If the person refuses a breath test under ORS
813.100, the person is subject to a civil penalty of at least
$500 and not more than $1,000. + }
{ - (f) - } { + (g) + } 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) - } { + (h) + } 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) - } { + (i) + } 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 4. ORS 813.460 is amended to read:
813.460. If the Department of Transportation verifies to its
satisfaction that it has suspended the driving privileges of the
wrong person under ORS 813.410 because a person arrested for
driving under the influence of intoxicants gave false
identification at the time of the arrest, all the following
apply:
(1) The department shall immediately rescind the suspension
order under the false name and shall issue a suspension order for
the period set forth in ORS 813.420 to the person arrested.
(2) The department shall issue the order in the manner set
forth in ORS 809.430.
(3) No further notice of suspension need be given.
(4) The time limitations in ORS 813.410 (1), (2), { - (3) and
(4)(e) - } { + (4) and (5)(e) + } do not apply to a suspension
order issued under this section.
SECTION 5. { + The amendments to ORS 813.130, 813.410 and
813.460 by sections 1 to 4 of this 2003 Act apply to persons
arrested for driving while under the influence of intoxicants on
or after the effective date of this 2003 Act. + }
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