74th OREGON LEGISLATIVE ASSEMBLY--2007 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 3940
Senate Bill 1058
Sponsored by Senator PROZANSKI, Representative READ; Senators
ATKINSON, AVAKIAN, BROWN, DECKERT, MONROE, STARR,
Representatives BARKER, DINGFELDER, HOLVEY, KRUMMEL,
MACPHERSON, OLSON, TOMEI (at the request of Thomas Jefferson in
memory of his wife, Jane Higdon; Mary O'Donnell in memory of
her husband, Tim O'Donnell)
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.
Creates crime of vehicular homicide. Punishes by maximum of
five years' imprisonment, $125,000 fine, or both.
A BILL FOR AN ACT
Relating to vehicular homicide; creating new provisions; and
amending ORS 163.005, 181.085, 419A.260, 807.252, 809.404,
809.409, 809.413, 809.600, 809.730, 811.182, 813.130, 813.215
and 813.220.
Be It Enacted by the People of the State of Oregon:
SECTION 1. { + (1) Criminal homicide constitutes vehicular
homicide when a person negligently operates a motor vehicle or a
boat in a manner that causes the death of another human being.
(2) As used in this section, 'negligence' means that a person
fails to be aware of a risk that death will occur. The risk must
be of such a nature and degree that the failure to be aware of it
constitutes a deviation from the standard of care that a
reasonable person would observe in the situation.
(3) The commission of acts constituting an offense are
admissible to prove negligence under this section if the acts are
a cause of the homicide.
(4) Vehicular homicide is a Class C felony. + }
SECTION 2. ORS 163.005 is amended to read:
163.005. (1) A person commits criminal homicide if, without
justification or excuse, the person { + :
(a) + } Intentionally, knowingly, recklessly or with criminal
negligence causes the death of another human being { - . - }
{ + ; or
(b) Negligently causes the death of another human being while
operating a motor vehicle or a boat under section 1 of this 2007
Act. + }
(2) 'Criminal homicide' is murder, manslaughter { + , + }
{ - or - } criminally negligent homicide { + or vehicular
homicide + }.
(3) 'Human being' means a person who has been born and was
alive at the time of the criminal act.
SECTION 3. ORS 181.085 is amended to read:
181.085. (1) The Department of State Police is authorized to:
(a) Store blood and buccal samples received under authority of
this section, ORS 137.076, 161.325 and 419C.473 (1) and section
2, chapter 852, Oregon Laws 2001, and other physical evidence
obtained from analysis of such samples;
(b) Analyze such samples for the purpose of establishing the
genetic profile of the donor or otherwise determining the
identity of persons or contract with other qualified public or
private laboratories to conduct that analysis;
(c) Maintain a criminal identification database containing
information derived from blood and buccal analyses;
(d) Utilize such samples to create statistical population
frequency databases, provided that genetic profiles or other such
information in a population frequency database shall not be
identified with specific individuals; and
(e) Adopt rules establishing procedures for obtaining,
transmitting and analyzing blood and buccal samples and for
storing and destroying blood and buccal samples and other
physical evidence and criminal identification information
obtained from such analysis. Procedures for blood and buccal
analyses may include all techniques which the department
determines are accurate and reliable in establishing identity,
including but not limited to, analysis of DNA (deoxyribonucleic
acid), antigen antibodies, polymorphic enzymes or polymorphic
proteins.
(2) If the department is unable to analyze all samples due to
lack of funds, the department shall analyze samples in the
following order:
(a) The department shall first analyze samples from persons
convicted of:
(A) Rape, sodomy, unlawful sexual penetration, sexual abuse,
public indecency, incest or using a child in a display of
sexually explicit conduct, as those offenses are defined in ORS
163.355 to 163.427, 163.465 (1)(c), 163.525 and 163.670;
(B) Burglary in the second degree, as defined in ORS 164.215;
(C) Promoting or compelling prostitution, as defined in ORS
167.012 and 167.017;
(D) Burglary in the first degree, as defined in ORS 164.225;
(E) Assault in the first, second or third degree, as defined in
ORS 163.165, 163.175 and 163.185;
(F) Kidnapping in the first or second degree, as defined in ORS
163.225 and 163.235;
(G) Stalking, as defined in ORS 163.732;
(H) Robbery in the first, second or third degree, as defined in
ORS 164.395, 164.405 and 164.415;
(I) Manslaughter in the first or second degree, as defined in
ORS 163.118 and 163.125;
(J) Criminally negligent homicide, as defined in ORS 163.145;
{ + (K) Vehicular homicide, as defined in section 1 of this
2007 Act; + }
{ - (K) - } { + (L) + } Conspiracy or attempt to commit any
felony listed in subparagraphs (A) to { - (J) - } { + (K) + }
of this paragraph; or
{ - (L) - } { + (M) + } Murder, aggravated murder or an
attempt to commit murder or aggravated murder.
(b) After analyzing samples from persons described in paragraph
(a) of this subsection, the department shall analyze samples from
persons convicted of a felony under ORS 475.840, 475.846 to
475.894, 475.904, 475.906 or 475.914.
(c) After analyzing samples from persons described in
paragraphs (a) and (b) of this subsection, the department shall
analyze samples from persons convicted of any other felony.
(3) Notwithstanding subsection (2) of this section, the
department may analyze a sample from a lower priority before all
samples in higher priorities are analyzed if required in a
particular case for law enforcement purposes.
(4) The department may not transfer or disclose any sample,
physical evidence or criminal identification information
obtained, stored or maintained under authority of this section,
ORS 137.076, 161.325 or 419C.473 (1) except:
(a) To a law enforcement agency as defined in ORS 181.010, a
district attorney or the Criminal Justice Division of the
Department of Justice for the purpose of establishing the
identity of a person in the course of a criminal investigation or
proceeding;
(b) To a party in a criminal prosecution or juvenile proceeding
pursuant to ORS 419C.005 if discovery or disclosure is required
by a separate statutory or constitutional provision; or
(c) To a court or grand jury in response to a lawful subpoena
or court order when the evidence is not otherwise privileged and
is necessary for criminal justice purposes.
(5) The department may not transfer or disclose any sample,
physical evidence or criminal identification information under
subsection (4) of this section unless the public agency or person
receiving the sample, physical evidence or criminal
identification information agrees to destroy the sample, physical
evidence or criminal identification information if notified by
the department that a court has reversed the conviction, judgment
or order that created the obligation to provide the blood or
buccal sample.
(6) Any public agency that receives a sample, physical evidence
or criminal identification information under authority of
subsection (4) of this section may not disclose it except as
provided in subsection (4) of this section.
(7) Notwithstanding subsections (4) and (6) of this section,
any person who is the subject of a record within a criminal
identification database maintained under the authority of this
section may, upon request, inspect that information at a time and
location designated by the department. The department may deny
inspection if it determines that there is a reasonable likelihood
that such inspection would prejudice a pending criminal
investigation. In any case, the department is not required to
allow the person or anyone acting on the person's behalf to test
any blood or buccal sample or other physical evidence. The
department shall adopt procedures governing the inspection of
records and samples and challenges to the accuracy of records.
The procedures shall accommodate the need to preserve the
materials from contamination and destruction.
(8)(a) Whenever a court reverses the conviction, judgment or
order that created an obligation to provide a blood or buccal
sample under ORS 137.076 (2), 161.325 or 419C.473 (1), the person
who provided the sample may request destruction of the sample and
any criminal identification record created in connection with
that sample.
(b) Upon receipt of a written request for destruction pursuant
to this section and a certified copy of the court order reversing
the conviction, judgment or order, the department shall destroy
any sample received from the person, any physical evidence
obtained from that sample and any criminal identification records
pertaining to the person, unless the department determines that
the person has otherwise become obligated to submit a blood or
buccal sample as a result of a separate conviction, juvenile
adjudication or finding of guilty except for insanity for an
offense listed in ORS 137.076 (1). When the department destroys a
sample, physical evidence or criminal identification record under
this paragraph, the department shall notify any public agency or
person to whom the sample, physical evidence or criminal
identification information was transferred or disclosed under
subsection (4) of this section of the reversal of the conviction,
judgment or order.
(c) The department is not required to destroy an item of
physical evidence obtained from a blood or buccal sample if
evidence relating to another person subject to the provisions of
ORS 137.076, 161.325, 181.085, 419A.260 and 419C.473 (1) would
thereby be destroyed. Notwithstanding this subsection, no sample,
physical evidence or criminal identification record is affected
by an order to set aside a conviction under ORS 137.225.
(9) As used in this section, 'convicted' includes a juvenile
court finding of jurisdiction based on ORS 419C.005.
SECTION 4. ORS 419A.260 is amended to read:
419A.260. (1) As used in this section and ORS 419A.262:
(a) 'Contact' means any instance in which a person's act or
behavior, or alleged act or behavior, which could result in a
juvenile court's assumption of jurisdiction under ORS 419B.100
(1)(a) to (c) and (f) or 419C.005 comes to the attention of an
agency specified in paragraph (d) of this subsection.
(b) 'Expunction' means:
(A) The removal and destruction or sealing of a judgment or
order related to a contact and all records and references; and
(B) Where a record is kept by the Department of Human Services
or the Oregon Youth Authority, either the sealing of such record
by the department or the Oregon Youth Authority or, in a
multiperson file, the affixing to the front of the file, by the
department or the youth authority, a stamp or statement
identifying the name of the individual, the date of expunction
and instruction that no further reference shall be made to the
material that is subject to the expunction order except upon an
order of a court of competent jurisdiction.
(c) 'Person' includes a person under 18 years of age.
(d) 'Record' includes a fingerprint or photograph file, report,
exhibit or other material which contains information relating to
a person's contact with any law enforcement agency or juvenile
court or juvenile department and is kept manually, through the
use of electronic data processing equipment, or by any other
means by a law enforcement or public investigative agency, a
juvenile court or juvenile department or an agency of the State
of Oregon. 'Record' does not include:
(A) A transcript of a student's Youth Corrections Education
Program academic record;
(B) Material on file with a public agency which is necessary
for obtaining federal financial participation regarding financial
assistance or services on behalf of a person who has had a
contact;
(C) Records kept or disseminated by the Department of
Transportation, State Marine Board and State Fish and Wildlife
Commission pursuant to juvenile or adult order or recommendation;
(D) Police and court records related to an order of waiver
where the matter is still pending in the adult court or on appeal
therefrom, or to any disposition as an adult pursuant to such
order;
(E) Records related to a support obligation;
(F) Medical records;
(G) Records of a proposed or adjudicated termination of
parental rights and adoptions;
(H) Any law enforcement record of a person who currently does
not qualify for expunction or of current investigations or cases
waived to the adult court;
(I) Records and case reports of the Oregon Supreme Court and
the Oregon Court of Appeals;
(J) Any records in cases under ORS 419C.005 in which a juvenile
court found a person to be within the jurisdiction of the court
based upon the person's commission of an act which if done by an
adult would constitute one of the following offenses:
(i) Aggravated murder under ORS 163.095;
(ii) Murder under ORS 163.115;
(iii) Attempt, solicitation or conspiracy to commit murder or
aggravated murder;
(iv) Manslaughter in the first degree under ORS 163.118;
(v) Manslaughter in the second degree under ORS 163.125;
(vi) Criminally negligent homicide under ORS 163.145;
(vii) Assault in the first degree under ORS 163.185;
(viii) Criminal mistreatment in the first degree under ORS
163.205;
(ix) Kidnapping in the first degree under ORS 163.235;
(x) Rape in the third degree under ORS 163.355;
(xi) Rape in the second degree under ORS 163.365;
(xii) Rape in the first degree under ORS 163.375;
(xiii) Sodomy in the third degree under ORS 163.385;
(xiv) Sodomy in the second degree under ORS 163.395;
(xv) Sodomy in the first degree under ORS 163.405;
(xvi) Unlawful sexual penetration in the second degree under
ORS 163.408;
(xvii) Unlawful sexual penetration in the first degree under
ORS 163.411;
(xviii) Sexual abuse in the third degree under ORS 163.415;
(xix) Sexual abuse in the second degree under ORS 163.425;
(xx) Sexual abuse in the first degree under ORS 163.427;
(xxi) Promoting prostitution under ORS 167.012;
(xxii) Compelling prostitution under ORS 167.017; { - or - }
{ + (xxiii) Vehicular homicide under section 1 of this 2007
Act; or + }
{ - (xxiii) - } { + (xxiv) + } An attempt to commit a crime
listed in this subparagraph other than manslaughter in the second
degree and criminally negligent homicide;
(K) Blood samples, buccal samples and other physical evidence
and identification information obtained, stored or maintained by
the Department of State Police under authority of ORS 137.076,
181.085 or 419C.473; or
(L) Records maintained in the Law Enforcement Data System under
ORS 181.592.
(e) 'Termination' means:
(A) For a person who is the subject of a record kept by a
juvenile court or juvenile department, the final disposition of a
case by informal means, by a decision not to place the person on
probation or make the person a ward of the court after the person
has been found to be within the court's jurisdiction, or by a
discontinuance of probation or of the court's wardship.
(B) For a person who is the subject of a record kept by a law
enforcement or public investigative agency, a juvenile court or
juvenile department or an agency of the State of Oregon, the
final disposition of the person's most recent contact with a law
enforcement agency.
(2) The juvenile court or juvenile department shall make
reasonable effort to provide written notice to a child who is
within the court's jurisdiction under ORS 419B.100 (1)(a) to (c)
and (f) or to a youth who is within the court's jurisdiction
under ORS 419C.005, and to the child's or youth's parent, of the
procedures for expunction of a record, the right to counsel under
this chapter, the legal effect of an expunction order and the
procedures for seeking relief from the duty to report as a sex
offender provided under ORS 181.607, at the following times:
(a) At any dispositional hearing or at the time of entering
into a formal accountability agreement;
(b) At the time of termination;
(c) Upon notice to the subject of an expunction pending
pursuant to application of a juvenile department or motion on a
juvenile court; and
(d) At the time of notice of execution of an expunction order.
SECTION 5. ORS 807.252 is amended to read:
807.252. (1) The Department of Transportation may not issue a
hardship permit to a person whose driving privileges are
suspended for conviction of assault in the second, third or
fourth degree if the person, within 10 years preceding
application for the permit, has been convicted of:
(a) Any degree of murder, manslaughter, criminally negligent
homicide { + , vehicular homicide + } or assault resulting from
the operation of a motor vehicle;
(b) Reckless driving, as defined in ORS 811.140;
(c) Driving while under the influence of intoxicants, as
defined in ORS 813.010;
(d) Failure to perform the duties of a driver involved in an
accident or collision, as described in ORS 811.700 or 811.705;
(e) Criminal driving while suspended or revoked, as defined in
ORS 811.182; or
(f) Fleeing or attempting to elude a police officer, as defined
in ORS 811.540.
(2) A conviction arising out of the same episode as the current
suspension is not considered a conviction for purposes of
subsection (1) of this section.
(3) The department may not issue a hardship permit to a person
whose driving privileges are suspended for a conviction of
assault in the second, third or fourth degree:
(a) For a period of four years from the date the department
suspends driving privileges if the person's driving privileges
are suspended for conviction of assault in the second degree and
the person was not incarcerated for that conviction.
(b) For a period of four years from the date the person is
released from incarceration for the conviction if the person's
driving privileges are suspended for conviction of assault in the
second degree and the person was incarcerated for that
conviction.
(c) For a period of two years from the date the department
suspends driving privileges if the person's driving privileges
are suspended for conviction of assault in the third degree and
the person was not incarcerated for that conviction.
(d) For a period of two years from the date the person is
released from incarceration for the conviction if the person's
driving privileges are suspended for conviction of assault in the
third degree and the person was incarcerated for that conviction.
(e) For a period of six months from the date the department
suspends driving privileges if the person's driving privileges
are suspended for conviction of assault in the fourth degree and
the person is not incarcerated for that conviction.
(f) For a period of six months from the date the person is
released from incarceration for the conviction if the person's
driving privileges are suspended for conviction of assault in the
fourth degree and the person was incarcerated for that
conviction.
(4) A hardship permit issued to a person whose driving
privileges are suspended because of a conviction for assault in
the second, third or fourth degree shall limit the person's
driving privileges:
(a) To the times, places, routes and days the department
determines to be minimally necessary for the person to seek or
retain employment, to attend any alcohol or drug treatment or
rehabilitation program or to obtain required medical treatment
for the person or a member of the person's immediate family; and
(b) To times, places, routes and days that are specifically
stated.
(5) The person's driving privileges under the permit are
subject to suspension or revocation if the person does not
maintain a good driving record, as defined by the administrative
rules of the department, during the term of the permit.
(6) The department may require the person to complete a driver
improvement program under ORS 809.480 as a condition of the
permit.
(7) The department shall condition the permit so that the
permit will be revoked if the person is convicted of any of the
following:
(a) Reckless driving under ORS 811.140.
(b) Driving while under the influence of intoxicants under ORS
813.010.
(c) Failure to perform the duties of a driver under ORS 811.700
or 811.705.
(d) Fleeing or attempting to elude a police officer under ORS
811.540.
(e) Driving while suspended or revoked under ORS 811.175 or
811.182.
(f) Any degree of murder, manslaughter, criminally negligent
homicide { + , vehicular homicide + } or assault resulting from
the operation of a motor vehicle.
SECTION 6. ORS 809.404 is amended to read:
809.404. (1) The Department of Transportation shall suspend a
person's commercial driver license or right to apply for a
commercial driver license if the person is disqualified from
holding a commercial driver license under this section. A person
is entitled to administrative review under ORS 809.440 of a
suspension under this section.
(2) A person is disqualified from holding a commercial driver
license if the person has two or more of any of the following in
any combination:
(a) A record of conviction for driving while under the
influence of intoxicants under ORS 813.010 and the person was
driving a motor vehicle or a commercial motor vehicle at the time
of the offense.
(b) A suspension of the person's commercial driver license
under ORS 813.410 for refusal to submit to a test under ORS
813.100 and the person was driving a motor vehicle or a
commercial motor vehicle at the time of the offense.
(c) A suspension of the person's commercial driver license
under ORS 813.410 because the person submitted to a breath or
blood test and the person's blood, as shown by the test, had 0.04
percent or more by weight of alcohol and the person was driving a
commercial motor vehicle at the time of the offense.
(d) A record of conviction under ORS 811.700 or 811.705 of
failure to perform the duties of a driver and the person was
driving a motor vehicle or a commercial motor vehicle at the time
of the offense.
(e) A record of conviction of a crime punishable as a felony,
other than a felony described in subsection (3) of this section,
and the person was driving a motor vehicle or a commercial motor
vehicle at the time of the offense.
(f) A record of conviction for driving a commercial motor
vehicle while, as a result of prior violations committed while
driving a commercial motor vehicle, the person's commercial
driver license had been suspended or revoked.
(g) A record of conviction of any degree of murder,
manslaughter { + , + } { - or - } criminally negligent
homicide { + or vehicular homicide + } resulting from the
operation of a commercial motor vehicle or assault in the first
degree resulting from the operation of a commercial motor
vehicle.
(3) A person is disqualified from holding a commercial driver
license if the person has a record of conviction for a crime
punishable as a felony that involves the manufacturing,
distributing or dispensing of a controlled substance, as defined
in ORS 475.005, and in which a motor vehicle or a commercial
motor vehicle was used. Notwithstanding subsection (4) of this
section, the department may not issue or reinstate a commercial
driver license for the lifetime of a person whose commercial
driver license is suspended under this subsection.
(4) Ten years after a person is disqualified from holding a
commercial driver license under subsection (2) of this section,
the person may apply to the department for the right to apply for
a commercial driver license or for reinstatement of the person's
commercial driver license. The department may issue or reinstate
a commercial driver license to a person who meets all other
requirements for the issuance of a commercial driver license if
the department, in the discretion of the department, finds good
cause shown and finds that the person voluntarily entered and
successfully completed rehabilitation as approved by the
department.
(5) Notwithstanding subsection (4) of this section, if a person
whose commercial driver license is issued or reinstated under
subsection (4) of this section receives a subsequent conviction
or suspension described in subsection (2) of this section, the
department shall suspend the person's commercial driver license
or right to apply for a commercial driver license for the
lifetime of the person.
(6) For the purposes of this section:
(a) Second or subsequent records of conviction or suspensions
apply only if the convictions or suspensions arose out of
separate incidents.
(b) A record of conviction or suspension applies to a person
who does not hold a commercial driver license only if the person
was driving a commercial motor vehicle at the time of the
commission of the offense.
SECTION 7. ORS 809.409 is amended to read:
809.409. (1)(a) Upon receipt of a record of conviction of an
offense described in this section, the Department of
Transportation shall revoke the driving privileges of the person
convicted.
(b) A person is entitled to administrative review under ORS
809.440 of a revocation under this section.
(c) Except as otherwise provided in subsections (2) and (3) of
this section, the revocation shall be for a period of one year
from the date of revocation, except that the department may not
reinstate driving privileges of any person whose privileges are
revoked under this section until the person complies with future
responsibility filings.
(2) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of { +
+ }any degree of murder, manslaughter { + , + } { - or - }
criminally negligent homicide { + or vehicular homicide + }
resulting from the operation of a motor vehicle
{ - and - } { + or + } assault in the first degree resulting
from the operation of a motor vehicle, except that the provisions
of this subsection do not apply to a person whose driving
privileges are ordered revoked under ORS 809.235. A person whose
driving privileges are revoked under this subsection may apply
for reinstatement of driving privileges:
(a) If the sentence for the offense includes incarceration,
eight years from the date the person is released from
incarceration for the offense; or
(b) If the sentence does not include incarceration, eight years
from the date the department revoked the privileges under this
subsection.
(3) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of failure to
perform the duties of a driver to injured persons under ORS
811.705. The department shall revoke driving privileges under
this subsection for a period of five years if the court indicates
on the record of conviction that a person was killed as a result
of the accident. The person may apply for reinstatement of
privileges five years after the date the person was released from
incarceration, if the sentence includes incarceration. If the
sentence does not include incarceration, the person may apply for
reinstatement five years from the date the revocation was imposed
under this subsection.
(4) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of perjury or
the making of a false affidavit to the department under any law
of this state requiring the registration of vehicles or
regulating their operation on the highways.
(5) The department shall take action under subsection (1) of
this section upon receipt of a record of conviction of any felony
with a material element involving the operation of a motor
vehicle.
SECTION 8. ORS 809.413 is amended to read:
809.413. The Department of Transportation shall suspend the
commercial driver license of a person when the department
receives a record of conviction, notification or notice described
in this section. A person is entitled to administrative review
under ORS 809.440 of a suspension under this section. The
department shall suspend the commercial driver license when the
department receives:
(1) A record of conviction under ORS 811.700 or 811.705 of
failure to perform the duties of a driver while operating a motor
vehicle or a commercial motor vehicle. A conviction under this
subsection shall result in:
(a) A suspension for a period of one year if:
(A) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license
suspended as described in ORS 809.404; and
(B) The person was not driving a commercial motor vehicle
containing a hazardous material at the time of the offense.
(b) A suspension for a period of three years if:
(A) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license
suspended as described in ORS 809.404; and
(B) The person was driving a commercial motor vehicle
containing a hazardous material at the time of the offense.
(c) Suspension of the commercial driver license for the
lifetime of the person if the person has previously been
convicted of an offense described in ORS 809.404 or had a
commercial driver license suspended as described in ORS 809.404.
(2) A record of conviction of a crime punishable as a felony
involving the operation of a motor vehicle or a commercial motor
vehicle, other than the felony described in subsection (3) of
this section. A conviction under this subsection shall result in:
(a) A suspension for a period of one year if:
(A) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license
suspended as described in ORS 809.404; and
(B) The person was not driving a commercial motor vehicle
containing a hazardous material at the time of the offense.
(b) A suspension for a period of three years if:
(A) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license
suspended as described in ORS 809.404; and
(B) The person was driving a commercial motor vehicle
containing a hazardous material at the time of the offense.
(c) Suspension of the commercial driver license for the
lifetime of the person if the person has previously been
convicted of an offense described in ORS 809.404 or had a
commercial driver license suspended as described in ORS 809.404.
(3) A record of conviction of a crime punishable as a felony
that involves the manufacturing, distributing or dispensing of a
controlled substance, as defined in ORS 475.005, and in which a
motor vehicle or commercial motor vehicle was used. A conviction
under this subsection shall result in a lifetime suspension of
the person's commercial driving license.
(4) A record of conviction for driving a commercial motor
vehicle while, as a result of prior violations committed while
operating a commercial motor vehicle, the commercial driver
license of the driver had been suspended or revoked. A conviction
under this subsection shall result in:
(a) A suspension for a period of one year if:
(A) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license
suspended as described in ORS 809.404; and
(B) The person was not driving a commercial motor vehicle
containing a hazardous material at the time of the offense.
(b) A suspension for a period of three years if:
(A) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license
suspended as described in ORS 809.404; and
(B) The person was driving a commercial motor vehicle
containing a hazardous material at the time of the offense.
(c) Suspension of the commercial driver license for the
lifetime of the person if the person has previously been
convicted of an offense described in ORS 809.404 or had a
commercial driver license suspended as described in ORS 809.404.
(5) A record of conviction of any degree of murder,
manslaughter or criminally negligent homicide { + or vehicular
homicide + } resulting from the operation of a commercial motor
vehicle or assault in the first degree resulting from the
operation of a commercial motor vehicle. A conviction under this
section shall result in:
(a) A suspension for a period of one year if:
(A) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license
suspended as described in ORS 809.404; and
(B) The person was not driving a commercial motor vehicle
containing a hazardous material at the time of the offense.
(b) A suspension for a period of three years if:
(A) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license
suspended as described in ORS 809.404; and
(B) The person was driving a commercial motor vehicle
containing a hazardous material at the time of the offense.
(c) Suspension of the commercial driver license for the
lifetime of the person if the person has previously been
convicted of an offense described in ORS 809.404 or had a
commercial driver license suspended as described in ORS 809.404.
(6) A record of conviction of a serious traffic violation if
the conviction occurred within three years of a previous
conviction for a serious traffic violation and if the convictions
arose out of separate incidents. A suspension under this
subsection shall be:
(a) For a period of 60 days if the conviction is the person's
second conviction for a serious traffic violation within the
three-year period.
(b) For a period of 120 days if the conviction is the person's
third or subsequent conviction for a serious traffic violation
within the three-year period. A suspension imposed under this
paragraph shall be consecutive to any other suspension imposed
for a serious traffic violation.
(7) Notification that a person violated an out-of-service order
issued under ORS 813.050 or has knowingly violated any other
out-of-service order or notice. Notification under this
subsection may include, but not be limited to, a record of
conviction and a record of a determination by a state or federal
agency with jurisdiction to make a determination that the person
has violated an out-of-service order or notice. A suspension
under this subsection shall be:
(a) Except as provided in paragraph (b) of this subsection, for
a period of 90 days if the notification relates to the person's
first violation of an out-of-service order or notice.
(b) For a period of one year if the notification relates to the
person's first violation of an out-of-service order or notice and
the person committed the violation while transporting hazardous
materials required to be placarded or while operating a motor
vehicle designed to transport 16 or more persons, including the
driver.
(c) Except as provided in paragraph (d) of this subsection, for
a period of three years if the notification relates to a second
or subsequent violation of an out-of-service notice or order that
occurred within a 10-year period.
(d) For a period of five years if the notification relates to a
second or subsequent violation of an out-of-service notice or
order that occurred within a 10-year period and the person
committed the violation while transporting hazardous materials
required to be placarded or was operating a motor vehicle
designed to transport 16 or more persons, including the driver,
regardless of the load or kind of vehicle involved in the prior
violation.
(8) Notification from the Federal Motor Carrier Safety
Administration that a person in this state who holds a commercial
driver license in this state has been disqualified from operating
a commercial motor vehicle and that the disqualification is due
to a determination that the driving of that person constitutes an
imminent hazard. A suspension under this subsection shall be made
immediately and for the period prescribed by the Federal Motor
Carrier Safety Administration, except that:
(a) Notwithstanding any disqualification hearings conducted by
the Federal Motor Carrier Safety Administration, a suspension
under this subsection is subject to a post-imposition hearing
under ORS 809.440.
(b) Notwithstanding the period of suspension prescribed by the
Federal Motor Carrier Safety Administration, a suspension under
this subsection may not exceed one year.
(9) Notification from another jurisdiction that the person
failed to appear on a citation for a traffic offense or for a
violation in the other jurisdiction that, if committed in this
state, would be grounds for suspension under ORS 809.220, and the
person held a commercial driver license or was operating a
commercial motor vehicle at the time of the offense. A suspension
under this subsection:
(a) Shall end upon the earliest of five years from the date of
suspension or upon notification by the other jurisdiction that
the person appeared.
(b) Shall be placed on the person's driving record regardless
of whether another jurisdiction places the suspension on the
person's driving record.
(c) May not be for a person's failure to appear on a parking,
pedestrian or bicyclist offense.
(10) Notification from another jurisdiction that the person
failed to pay a fine or obey an order of the court on a citation
for a traffic offense or for a violation in the other
jurisdiction that, if committed in this state, would be grounds
for suspension under ORS 809.415 (4), and the person held a
commercial driver license or was operating a commercial motor
vehicle at the time of the offense. A suspension under this
subsection:
(a) Shall end upon the earliest of five years from the date of
suspension or upon notification by the other jurisdiction that
the person paid the fine or obeyed the order of the court.
(b) Shall be placed on the person's driving record regardless
of whether another jurisdiction places the suspension on the
person's driving record.
(c) May not be for a person's failure to pay a fine or obey an
order of the court on a parking, pedestrian or bicyclist offense.
(11) Notice of a conviction in another jurisdiction of an
offense that, if committed in this state, would be grounds for
the suspension of the person's commercial driver license. The
period of suspension under this subsection shall be the same as
would be imposed on the person if the conviction were for an
offense committed in this state.
(12) Notification from another jurisdiction that a person who
is a resident of this state and who holds a commercial driver
license has had commercial driving privileges suspended or
revoked in another jurisdiction for reasons that would be grounds
for suspension of the person's commercial driver license in this
state. The period of suspension under this subsection shall be
the same as would be imposed on the person if the violation were
committed in this state.
SECTION 9. ORS 809.600 is amended to read:
809.600. This section establishes the { - number and kind of
offenses - } { + kinds of offenses and the number of
convictions + } necessary to revoke the driving privileges of a
person as a habitual offender under ORS 809.640. The { - number
and kind of offenses - } { + kinds of offenses and the number
of convictions + } necessary to revoke driving privileges as a
habitual offender are as follows:
(1) A person's driving privileges shall be revoked as a
habitual offender if the person, within a five-year period, has
been convicted of three or more of any one or more of the
following offenses as evidenced by the records maintained by the
Department of Transportation or by the records of a similar
agency of another state:
(a) Any degree of murder, manslaughter, criminally negligent
homicide, { + vehicular homicide, + } assault, recklessly
endangering another person, menacing or criminal mischief
resulting from the operation of a motor vehicle.
(b) Driving while under the influence of intoxicants under ORS
813.010.
(c) Criminally driving a motor vehicle while suspended or
revoked, under ORS 811.182.
(d) Reckless driving under ORS 811.140.
(e) Failure to perform the duties of a driver under ORS 811.700
or 811.705.
(f) Fleeing or attempting to elude a police officer under ORS
811.540.
(2) A person's driving privileges shall be revoked as a
habitual offender if the person, within a five-year period, has
been convicted of 20 or more of any one or more of the following
offenses as evidenced by the records maintained by the department
or by a similar agency of another state:
(a) Any offenses enumerated in subsection (1) of this section.
(b) Any offense specified in the rules of the department
adopted under ORS 809.605.
(3) A person's driving privileges shall not be revoked under
subsection (2) of this section until the person's 21st conviction
within a five-year period when the 20th conviction occurs after a
lapse of two years or more from the last preceding conviction.
(4) The offenses described under this section include any of
the following:
(a) Any violation of a traffic ordinance of a city, municipal
or quasi-municipal corporation that substantially conforms to
offenses described under this section.
(b) Any violation of offenses under any federal law or any law
of another state, including subdivisions thereof, that
substantially { - conforms - } { + conform + } to offenses
described in this section.
SECTION 10. ORS 809.730 is amended to read:
809.730. (1) A motor vehicle may be seized and forfeited if the
person operating the vehicle is arrested or issued a citation for
driving while under the influence of intoxicants in violation of
ORS 813.010 and the person, within three years prior to the
arrest or issuance of the citation, has been convicted of:
(a) Driving while under the influence of intoxicants in
violation of ORS 813.010, or its statutory counterpart in another
jurisdiction; or
(b) Murder, manslaughter, criminally negligent homicide { + ,
vehicular homicide + } or assault that resulted from the
operation of a motor vehicle in this state or in another
jurisdiction.
(2) All seizure and forfeiture proceedings under this section
shall be conducted in accordance with ORS chapter 475A.
SECTION 11. 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 - } { + offense described in this
section, criminal driving while suspended or revoked, + } is a
Class B felony if the suspension or revocation resulted from any
degree of murder, manslaughter, criminally negligent
homicide { + , vehicular homicide + } or assault resulting from
the operation of a motor vehicle or if the revocation resulted
from a conviction for felony driving while under the influence of
intoxicants.
(4) The { - crime - } { + offense described in this
section, criminal driving while suspended or revoked, + } is a
Class A misdemeanor if the suspension or revocation is any of the
following:
(a) A suspension under ORS 809.411 (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 809.409 (4) 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) 0.08 percent or more by weight if the person was not
driving a commercial motor vehicle;
(B) 0.04 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) A suspension of a commercial driver license under ORS
809.413 (1) 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
809.413 (12) 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 suspension of a commercial driver license under ORS
809.404.
(g) A revocation resulting from habitual offender status under
ORS 809.640.
(h) 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.
(i) A suspension for failure to perform the duties of a driver
under ORS 811.705.
(j) A suspension for reckless driving under ORS 811.140.
(k) A suspension for fleeing or attempting to elude a police
officer under ORS 811.540.
(L) A suspension or revocation resulting from misdemeanor
driving while under the influence of intoxicants under ORS
813.010.
(m) 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 12. 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 0.08 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) 0.08 percent or more by weight if the person was not
driving a commercial motor vehicle;
(B) 0.04 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 fine of at least $500 and not more than
$1,000.
(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.
(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.
(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 0.04 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 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 0.04 percent or more by weight and:
(A) The person previously has been convicted of failure to
perform the duties of a driver;
(B) The person previously has been convicted of a crime
punishable as a felony and the person was driving a motor vehicle
at the time the offense was committed;
(C) The person previously has been convicted of driving a
commercial motor vehicle while the person's commercial driver
license or right to apply for a commercial driver license was
suspended or revoked;
(D) The person previously has been convicted of any degree of
murder, manslaughter { + , + } { - or - } criminally negligent
homicide { + or vehicular homicide + } resulting from the
operation of a commercial motor vehicle or assault in the first
degree resulting from the operation of a commercial motor
vehicle;
(E) The person previously has been convicted of driving while
under the influence of intoxicants;
(F) The person's commercial driver license previously has been
suspended or revoked for refusal to submit to, or failure of, a
breath or blood test under ORS 813.100; or
(G) The person's right to apply for a commercial driver license
previously has been suspended or revoked for refusal to submit
to, or failure of, a breath or blood test under ORS 813.100
resulting from the operation of a commercial motor vehicle.
(4) Nothing in this section prohibits the department from
providing additional information concerning rights and
consequences that the department considers convenient or
appropriate.
SECTION 13. ORS 813.215 is amended to read:
813.215. A defendant is eligible for diversion if:
(1) The defendant had no charge of an offense of driving while
under the influence of intoxicants or its statutory counterpart
in any jurisdiction, other than the charge for the present
offense, pending on the date the defendant filed the petition for
a driving while under the influence of intoxicants diversion
agreement;
(2) The defendant has not been convicted of an offense
described in subsection (1) of this section within the period
beginning 10 years before the date of the commission of the
present offense and ending on the date the defendant filed the
petition for a driving while under the influence of intoxicants
diversion agreement;
(3) The defendant was not participating in a driving while
under the influence of intoxicants diversion program or in any
similar alcohol or drug rehabilitation program, other than a
program entered into as a result of the charge for the present
offense, in this state or in any other jurisdiction on the date
the defendant filed the petition for a driving while under the
influence of intoxicants diversion agreement;
(4) The defendant did not participate in a diversion or
rehabilitation program described in subsection (3) of this
section, other than a program entered into as a result of the
charge for the present offense, within the period beginning 10
years before the date of the commission of the present offense
and ending on the date the defendant filed the petition for a
driving while under the influence of intoxicants diversion
agreement;
(5) The defendant had no charge of an offense of murder,
manslaughter, criminally negligent homicide { + , vehicular
homicide + } or assault that resulted from the operation of a
motor vehicle pending in this state or in any other jurisdiction
on the date the defendant filed the petition for a driving while
under the influence of intoxicants diversion agreement;
(6) The defendant has not been convicted of an offense
described in subsection (5) of this section within the period
beginning 10 years before the date of the commission of the
present offense and ending on the date the defendant filed the
petition for a driving while under the influence of intoxicants
diversion agreement;
(7) The defendant did not have a commercial driver license at
the time of the offense;
(8) The defendant was not operating a commercial motor vehicle
at the time of the offense; and
(9) The present driving while under the influence of
intoxicants offense did not involve an accident resulting in:
(a) Death of any person { - other than the defendant - } ; or
(b) Physical injury as defined in ORS 161.015 to any person
other than the defendant.
SECTION 14. ORS 813.220 is amended to read:
813.220. After the time for requesting a hearing under ORS
813.210 has expired with no request for a hearing, or after a
hearing requested under ORS 813.210, the court shall determine
whether to allow or deny a petition for a driving while under the
influence of intoxicants diversion agreement. In making a
determination under this section, the court:
(1) Shall consider whether the diversion will be of benefit to
the defendant and the community.
(2) May take into consideration whether there was an early
recognition by the defendant during the proceeding that a course
of diagnosis and treatment of problem drinking, alcoholism or
drug dependency would be beneficial.
(3) May take into consideration whether there is a probability
that the defendant will cooperate with the diagnostic assessment
and treatment agencies.
(4) May take into consideration whether the defendant will
observe the restrictions contained in the diversion agreement.
(5) May take into consideration whether the offense was
committed in a motor vehicle and whether there was a passenger in
the motor vehicle who was under 18 years of age and at least
three years younger than the defendant.
(6) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if the defendant
failed to appear at an arraignment on the present offense without
good cause.
(7) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if the defendant was
charged with or convicted of an offense of driving while under
the influence of intoxicants or its statutory counterpart in any
jurisdiction after the date the defendant filed the petition.
(8) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if the defendant
participated in a driving while under the influence of
intoxicants diversion program or in any similar alcohol or drug
rehabilitation program, other than a program entered into as a
result of the charge for the present offense, in this state or in
any other jurisdiction after the date the defendant filed the
petition.
(9) Shall deny the petition for a driving while under the
influence of intoxicants diversion agreement if the defendant was
charged with or convicted of an offense of murder, manslaughter,
criminally negligent homicide { + , vehicular homicide + } or
assault that resulted from the operation of a motor vehicle in
this state or in any other jurisdiction after the date the
defendant filed the petition.
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