Chapter 810

810.030

NOTES OF DECISIONS

Rulemaking authority does not permit rule assigning civil liability in private causes of action. Ettinger v. Denny Chancler Equipment Co., Inc., 139 Or App 103, 910 P2d 420 (1996), Sup Ct review denied

810.040

NOTES OF DECISIONS

Under former similar statute

Commission’s consent, pursuant to this section, to City of Portland’s designation of truck route is not rule within ORS 183.310. United Parcel Serv. Inc. v. Ore. Trans. Comm., 27 Or App 147, 555 P2d 778 (1976)

810.060

NOTES OF DECISIONS

This section does not create affirmative duty in county to set weight limits in excess of those in ORS 818.010. State v. Johnson, 87 Or App 654, 743 P2d 1121 (1987)

810.160

ATTY. GEN. OPINIONS

Under former similar statute

Permissible municipal action, (1976) Vol 38, p 334; city establishment of own procedure for collection of fines for violation of city parking ordinances, (1984) Vol 44, p 67

810.180

NOTES OF DECISIONS

Under former similar statute

Commission finding that national and international fuel shortage existed or was imminent, regardless of whether fuel shortage existed in Oregon, was sufficient to support Commission’s issuance of rule pursuant to this section. Bercot v. Oregon Transportation Commission, 31 Or App 449, 570 P2d 1195 (1977)

Safeguards provided by Administrative Procedures Act were sufficient to sustain delegation of legislative authority made by this section, notwithstanding that agency rule promulgated pursuant to this section did not provide appeal procedure. Bercot v. Oregon Transportation Commission, 31 Or App 449, 570 P2d 1195 (1977)

Under this section authorizing Department of Transportation to fix maximum speed limit at 55 miles per hour, speed limit rule promulgated by Oregon Transportation Commission was not invalid solely because it was adopted by commission rather than by department. State v. McCrea, 43 Or App 781, 604 P2d 781 (1979), Sup Ct review denied

810.210

See also annotations under ORS 483.044 in permanent edition.

NOTES OF DECISIONS

Under former similar statute

This section does not absolutely require all traffic control signals to conform to uniform standards adopted by Commission, and thus operation or application of traffic signal is discretionary function. Morris v. Oregon State Transportation Comm., 38 Or App 331, 590 P2d 260 (1979)

810.250

NOTES OF DECISIONS

Proper positioning of traffic control device is not element of offense of failure to obey traffic control device (ORS 811.265), but is fact that defendant is entitled to challenge by affirmative defense. State v. Boly, 210 Or App 132, 149 P3d 1237 (2006)

810.370

ATTY. GEN. OPINIONS

Under former similar statute

Effect of suspension of sentence following conviction or guilty plea on requirement to forward abstract of record to Motor Vehicles Division, (1980) Vol 41, p 76

810.400

NOTES OF DECISIONS

Under former similar statute

Attire of arresting officer is not element of crime of driving under influence of intoxicants and fact that arresting officer was not in uniform was not ground for reversal of conviction. State v. Gerttula, 41 Or App 675, 598 P2d 1257 (1979)

Where off-duty state trooper stopped and questioned driver who was driving erratically, his failure to identify himself as police officer did not invalidate stop or subsequent arrest where he was acting in capacity of citizen. State v. Chaput, 43 Or App 831, 604 P2d 435 (1979)

In general

Violation of this section does not itself invalidate stop. State v. Mesa, 110 Or App 261, 822 P2d 143 (1991), Sup Ct review denied

Failure of police officer to properly identify self does not require suppressing evidence of stop. State v. Oakes, 193 Or App 341, 89 P3d 1274 (2004)

810.410

NOTES OF DECISIONS

Under former similar statute

Where conflicting information was given concerning defendant’s identity after he was stopped for a traffic violation, taking him into custody in order to determine his identity was not unreasonable. State v. Tucker, 286 Or 485, 595 P2d 1364 (1979)

This section allows only those officials who have observed infraction or who are on scene of accident and have personally investigated cause of accident to issue citations and to detain people; where no citation can be issued detention is not authorized. State v. Painter, 296 Or 422, 676 P2d 309 (1984)

In general

Where evidence showed that tribal law incorporated Oregon law concerning arrest for drunken driving, allowing arrest if officer has probable cause to believe person has committed major traffic offense, tribal officer was authorized to make such arrest. United States v. Strong, 778 F2d 1393 (1985)

Although officer did not know that South Dakota law required two license plates on vehicle, stop of defendant for displaying only one South Dakota license plate provided probable cause to believe traffic infraction had been committed in his presence. State v. Baer, 97 Or App 467, 776 P2d 876 (1989)

Officer does not lose authority to make traffic stop by waiting fifteen minutes after witnessing infraction and so long as officer’s actions are consistent with those of officer investigating traffic infraction, fact that officer has additional purposes for making stop does not invalidate it. State v. Olaiz, 100 Or App 380, 786 P2d 734 (1990), Sup Ct review denied

Trial court erred in denying defendant’s motion to suppress evidence obtained in search during lawful stop because officer’s authority to detain stopped person ends when reason for stop no longer exists. State v. Porter, 312 Or 112, 817 P2d 1306 (1991); State v. Dow, 116 Or App 542, 842 P2d 430 (1992); State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995); State v. Aguilar, 139 Or App 175, 912 P2d 379 (1996), Sup Ct review denied; State v. Foster, 139 Or App 303, 912 P2d 377 (1996), Sup Ct review denied

Investigation of traffic infraction must be reasonably related to infraction, identification and issuance of citation and where arrest of driver and search of car was product of defendant’s unlawful removal and handcuffing, evidence discovered during search should have been suppressed. State v. Faccio, 114 Or App 112, 834 P2d 485 (1992)

Officer who lawfully stopped car in which defendant was passenger lacked authority to ask for consent to search or to search accoutrement when request was made solely on basis of traffic infraction. State v. Bucholz, 114 Or App 624, 836 P2d 180 (1992); State v. Wright, 152 Or App 282, 954 P2d 809 (1998), Sup Ct review denied

When police officer saw defendant who was stopped for speeding violation reach into glove compartment, remove rolled-up bag and tuck bag into sock, observations and police officer’s knowledge and experience supported reasonable suspicion defendant possessed drugs or drug paraphernalia and allowed officer to question defendant about what officer had seen. State v. Frias, 115 Or App 149, 836 P2d 1367 (1992)

ORS 131.615 and this section provided authority for officer to open door of motor vehicle when officer observed motor vehicle oddly parked and discovered defendant slumped in driver’s seat with driver’s door slightly open and engine running. State v. Rhodes, 315 Or 191, 843 P2d 927 (1992)

Mere possibility defendant was in violation of statute was not probable cause allowing stopping of vehicle. State v. Rivera, 121 Or App 246, 855 P2d 188 (1993)

Reasonable basis for suspecting that infraction has occurred is sufficient to permit stop. State v. Matthews, 126 Or App 154, 868 P2d 14 (1994), aff’d 320 Or 398, 884 P2d 1224 (1994)

Reasonable suspicion that defendant has committed illegal acts is proper standard for permitting officer to broaden scope of investigation during traffic stop. State v. Aguilar, 139 Or App 175, 912 P2d 379 (1996), Sup Ct review denied

Where passenger commits traffic infraction, limitation on permissible scope of traffic stop applies to questioning of passenger. State v. Jones, 141 Or App 63, 918 P2d 111 (1996)

Where officer announces to individual that officer observed individual breaking law, encounter is stop. State v. Terhear/Goemmel, 142 Or App 450, 923 P2d 641 (1996)

Retention of valuable property extends duration of stop whether or not retention impairs mobility of stopped person. State v. Bailey, 143 Or App 285, 924 P2d 833 (1996)

Nervous behavior of driver is insufficient by itself to raise officer safety concerns and allow expansion of stop. State v. Peterson, 143 Or App 505, 923 P2d 1340 (1996), Sup Ct review denied

Traffic stop has ended if person stopped has been given objectively reasonable opportunity to leave. State v. Hadley, 146 Or App 166, 932 P2d 1194 (1997); State v. Elverud, 154 Or App 79, 961 P2d 224 (1998), Sup Ct review denied

Where police officer lacked reasonable suspicion for expanding scope of traffic stop, officer leaning head into interior of vehicle while conducting stop was unreasonable search. State v. Hendricks, 151 Or App 271, 948 P2d 740 (1997)

Restriction on extension of traffic infraction stop applies to investigation of passengers in stopped vehicle. State v. Taylor, 151 Or App 687, 950 P2d 930 (1997), Sup Ct review denied; State v. Wright, 152 Or App 282, 954 P2d 809 (1998), Sup Ct review denied

Suspicion that passenger is under influence of alcohol or controlled substances does not provide reasonable suspicion for expanding scope of stop. State v. Morton, 151 Or App 734, 951 P2d 179 (1997), Sup Ct review denied

Where unlawful expansion of traffic stop does not impair free will of motorist, search resulting from expansion does not automatically violate prohibition in Oregon Constitution against unlawful search and seizure. State v. $113,871 in U.S. Currency, 152 Or App 770, 954 P2d 218 (1998), Sup Ct review denied

Authority of tribal police officers to enforce state traffic laws on highways running through Indian reservation is not derived from, and is not coextensive with, statutory enforcement authority given “police officers.” State v. Pamperien, 156 Or App 153, 967 P2d 503 (1998)

Under pre-1997 version of statute, whether person is stopped or detained is determined using same methodology applicable for identifying stops and detentions under Criminal Procedure Code. State v. Toevs, 327 Or 525, 964 P2d 1007 (1998)

Under pre-1997 version of statute, unlawful detention follows lawful stop where stopped person subjectively believes liberty or freedom of movement is restrained and belief is objectively reasonable based upon totality of circumstances. State v. Toevs, 327 Or 525, 964 P2d 1007 (1998)

Except as prohibited by United States or Oregon Constitution, ORS 136.432 requires admission of evidence obtained through unlawful expansion of traffic stop. State v. Arabzadeh, 162 Or App 423, 986 P2d 736 (1999)

Officer is not required to have reasonable suspicion for questions to ensure officer safety unless questioning rises to level of search or seizure. State v. Amaya, 176 Or App 35, 29 P3d 1177 (2001), aff’d 336 Or 616, 89 P3d 1163 (2004); State v. Crampton, 176 Or App 62, 31 P3d 430 (2001)

Request for consent to “search for items of evidence otherwise subject to search or seizure under ORS 133.535” does not require reasonable suspicion of criminal activity. State v. Duffy, 176 Or App 49, 29 P3d 1222 (2001), Sup Ct review denied

Police officer may not stop person pursued outside state for purpose of issuing traffic citation not authorized by foreign state’s version of Uniform Act on Fresh Pursuit. State v. Meyer, 183 Or App 536, 53 P3d 940 (2002)

Authorization for officer to make stop related to “traffic violation, identification and issuance of citation” does not require that officer have all three purposes for making stop. Efimoff v. DMV, 204 Or App 648, 131 P3d 814 (2006)

During lawful stop, officer may ask question about matter unrelated to basis of stop without having independent reasonable suspicion that subject matter of questioning occurred. State v. Amador, 230 Or App 1, 213 P3d 846 (2009), Sup Ct review denied

ATTY. GEN. OPINIONS

Under former similar statute

Arrest and incarceration of individuals for traffic infractions, (1977) Vol 38, p 960

810.438

NOTES OF DECISIONS

This section and ORS 810.439 are precitation procedural statutes that do not add to substantive requirements for commission of offense under ORS 810.439. State v. King, 199 Or App 278, 111 P3d 1146 (2005)

810.439

NOTES OF DECISIONS

Presumption that vehicle was driven by registered owner does not improperly shift burden of persuasion to defendant. State v. Dahl, 185 Or App 149, 57 P3d 965 (2002), aff’d 336 Or 481, 87 P3d 650 (2004)

Where vehicle is registered to single owner, presumption that registered owner was driving vehicle has sufficient rational basis to meet due process requirements. State v. Dahl, 185 Or App 149, 57 P3d 965 (2002), aff’d 336 Or 481, 87 P3d 650 (2004)

This section and ORS 810.438 are precitation procedural statutes that do not add to substantive requirements for commission of offense. State v. King, 199 Or App 278, 111 P3d 1146 (2005), Sup Ct review denied

Enumerated conditions for issuance of photo radar citation supersede ORS 153.045 requirement for officer certification regarding offense. State v. King, 199 Or App 278, 111 P3d 1146 (2005), Sup Ct review denied

810.460

NOTES OF DECISIONS

Although authority to enter area protected from unreasonable search may be implied if that action is necessary to accomplish statutory duty, officer did not need to search defendant’s purse to accomplish duty under this section to fill out accident report. State v. Watson, 95 Or App 134, 769 P2d 201 (1989)

810.530

ATTY. GEN. OPINIONS

Under former similar statute

Weighmaster arrest procedures, (1979) Vol 39, p 528