75th OREGON LEGISLATIVE ASSEMBLY--2009 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 614
A-Engrossed
House Bill 2238
Ordered by the Senate June 3
Including Senate Amendments dated June 3
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Governor Theodore R.
Kulongoski for Department of Transportation)
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.
{ - Increases period of time person is ineligible to receive
hardship permit if person refused to take breath or blood test
and person previously had been charged with offense of driving
while under influence of intoxicants. - }
{ + Provides that person who refuses breath or blood test is
not eligible for hardship permit for at least 90 days and,
depending on certain factors, for up to three years.
Provides that person who fails test may qualify for hardship
permit in 30 days, depending on person's driving record. + }
A BILL FOR AN ACT
Relating to hardship permits; creating new provisions; and
amending ORS 813.130 and 813.520.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 813.520 is amended to read:
813.520. In addition to any provisions of ORS 807.240 and
813.510 or 807.250, this section establishes limitations on the
authority of the Department of Transportation to issue driving
privileges under ORS 807.240. The department may not reinstate
any driving privileges or issue any hardship permit under ORS
807.240 as provided under any of the following:
(1) For a period of 90 days after the beginning of the
suspension if the suspension is for refusal of a test under ORS
813.100 and the person is not subject to an increase in the time
before a permit may be issued for reasons described in ORS
813.430. This period of 90 days shall be reduced by the time the
department refused to issue a hardship permit under subsection
(5) or (6) of this section if the person's driving privileges
were suspended based on the same occurrence.
(2) For a period of 30 days after the beginning of the
suspension if the suspension is because a breath or blood test
under ORS 813.100 disclosed that the person had a level of
alcohol in the person's blood that constituted being under the
influence of intoxicating liquor under ORS 813.300 and the person
is not subject to an increase in the time before a hardship
permit may be issued for reasons described in ORS 813.430. This
period of 30 days shall be reduced by the time the department
refused to issue a hardship permit under subsection (5) or (6) of
this section if the person's driving privileges were suspended
based on the same occurrence.
(3) For a period of one year after the beginning of the
suspension if the suspension is because a breath or blood test
under ORS 813.100 disclosed that the person had a level of
alcohol in the person's blood that constituted being under the
influence of intoxicating liquor under ORS 813.300 and the person
is subject to an increase in the time before a hardship permit
may be issued for reasons described under ORS 813.430. This
period of one year shall be reduced by the time the department
refused to issue a hardship permit under subsection (5) or (6) of
this section if the person's driving privileges were suspended
based on the same occurrence.
(4) For a period of { - one year - } { + three years + }
after the beginning of the suspension if the suspension is for
refusal of a test under ORS 813.100 and the person is subject to
an increase in the time before a hardship permit may be issued
for reasons described in ORS 813.430. This period of { - one
year - } { + three years + } shall be reduced by the time the
department refused to issue a hardship permit under subsection
(5) or (6) of this section if the person's driving privileges
were suspended based on the same occurrence.
(5) For a period of 90 days after the beginning of the
suspension under ORS 813.400 if it is the person's second
conviction for driving while under the influence of intoxicants
if the suspension period is determined by ORS 809.428 (2)(b).
This period of 90 days shall be reduced by the time the
department refused to issue a hardship permit under subsection
(1), (2), (3) or (4) of this section if the person's driving
privileges were suspended based on the same occurrence.
(6) For a period of one year after the beginning of the
suspension under ORS 813.400 for driving while under the
influence of intoxicants if the suspension period is determined
by ORS 809.428 (2)(c). This period of one year shall be reduced
by the time the department refused to issue a hardship permit
under subsection (1), (2), (3) or (4) of this section if the
person's driving privileges were suspended based on the same
occurrence.
(7) To any person who has a mental or physical condition or
impairment that affects the person's ability to safely operate a
motor vehicle.
(8) If the suspension is based upon a conviction for a
violation of ORS 813.010 or is imposed under ORS 813.410 based
upon ORS 813.100 to a person who has available public or private
transportation sufficient to fulfill the person's transportation
needs while the person is suspended.
(9) For a period of 30 days following imposition of suspension,
if the person, within the previous year, has been convicted of a
traffic crime and the suspension is based upon a conviction for
violation of ORS 813.010 or is imposed under ORS 813.410 based
upon ORS 813.100.
SECTION 2. 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. - }
{ + (e) If the person refuses a test under ORS 813.100, the
person is not eligible for a hardship permit for at least 90
days, and possibly for three years, depending on the following
factors set forth in ORS 813.430:
(A) Whether the person is presently participating in a driving
while under the influence of intoxicants diversion program in
this state or in any similar alcohol or drug rehabilitation
program in this or another jurisdiction; or
(B) Whether within the five years preceding the date of arrest
any of the following occurred:
(i) A suspension of the person's driving privileges under ORS
813.410 or 482.540 (1981 Replacement Part) became effective;
(ii) The person was convicted of driving while under the
influence of intoxicants in violation of ORS 813.010 or the
statutory counterpart to ORS 813.010 in another jurisdiction, as
described in ORS 813.430;
(iii) The person was convicted of driving while under the
influence of intoxicants in violation of a municipal ordinance in
this state or another jurisdiction, as described in ORS 813.430;
or
(iv) The person commenced participating in a driving while
under the influence of intoxicants diversion program in this
state or in any similar alcohol or drug rehabilitation program in
this or another jurisdiction, as described in ORS 813.430. + }
(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.
{ + (j) 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. + }
(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 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 3. { + The amendments to ORS 813.130 and 813.520 by
sections 1 and 2 of this 2009 Act apply to persons who refuse to
take a test under ORS 813.100 on or after the effective date of
this 2009 Act. + }
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