68th OREGON LEGISLATIVE ASSEMBLY--1995 Regular Session
Enrolled
House Bill 3344
Sponsored by Representative UHERBELAU; Representatives ADAMS,
BROWN, CORCORAN, COURTNEY, EIGHMEY, FAHEY, GORDLY, JOHNSON,
JOHNSTON, LEWIS, LUNDQUIST, PIERCY, PROZANSKI, RASMUSSEN,
REPINE, ROSS, TARNO, THOMPSON, WATT, WELLS, WYLIE, Senator
HANNON (at the request of David and Katrina Burnson)
CHAPTER ................
AN ACT
Relating to implied consent; amending ORS 811.182, 813.100,
813.120, 813.130, 813.404, 813.410, 813.420, 813.470 and
813.520.
Be It Enacted by the People of the State of Oregon:
**************************** SECTION 1. ORS 813.100 is amended
to read:
813.100. (1) Any person who operates a motor vehicle upon
premises open to the public or the highways of this state shall
be deemed to have given consent, subject to the implied consent
law, to a chemical test of the person's breath, or of the
person's blood if the person is receiving medical care in a
health care facility immediately after a motor vehicle accident,
for the purpose of determining the alcoholic content of the
person's blood if the person is arrested for driving a motor
vehicle while under the influence of intoxicants in violation of
ORS 813.010 or of a municipal ordinance. A test shall be
administered upon the request of a police officer having
reasonable grounds to believe the person arrested to have been
driving while under the influence of intoxicants in violation of
ORS 813.010 or of a municipal ordinance. Before the test is
administered the person requested to take the test shall be
informed of consequences and rights as described under ORS
813.130.
(2) No chemical test of the person's breath or blood shall be
given, under subsection (1) of this section, to a person under
arrest for driving a motor vehicle while under the influence of
intoxicants in violation of ORS 813.010 or of a municipal
ordinance, if the person refuses the request of a police officer
to submit to the chemical test after the person has been informed
of consequences and rights as described under ORS 813.130.
(3) If a person refuses to take a test under this section or if
a breath test under this section discloses that the person, at
the time of the test, had a level of alcohol in the person's
blood that constitutes being under the influence of intoxicating
liquor under ORS 813.300, the person's driving privileges are
subject to suspension under ORS 813.410 and the police officer
shall do all of the following:
(a) Immediately take custody of any driver license or permit
issued by this state to the person to grant driving privileges.
(b) Provide the person with a written notice of intent to
suspend, on forms prepared and provided by the Department of
Transportation. The written notice shall inform the person of
consequences and rights as described under ORS 813.130.
(c) If the person qualifies under ORS 813.110, issue to the
person, on behalf of the department, a temporary driving permit
described under ORS 813.110.
(d) Within a period of time required by the department by rule,
report action taken under this section to the department and
prepare and cause to be delivered to the department a report as
described in ORS 813.120, along with the confiscated license or
permit and a copy of the notice of intent to suspend.
{ + (4) If a blood test under this section discloses that the
person, at the time of the test, had a level of alcohol in the
person's blood that constitutes being under the influence of
intoxicating liquor under ORS 813.300, the person's driving
privileges are subject to suspension under ORS 813.410 and the
police officer shall report to the department within 45 days of
the date of arrest that the person failed the blood test. + }
**************************** SECTION 2. ORS 811.182 is amended
to read:
811.182. (1) A person commits the offense of criminal driving
while suspended or revoked or in violation of a hardship or
probationary permit if the person violates ORS 811.175 and the
suspension or revocation is one described in this section, or if
the hardship or probationary permit violated is based upon a
suspension or revocation described in subsection (3) or (4) of
this section.
(2) Affirmative defenses to the offense described in this
section are established under ORS 811.180.
(3) The crime is a Class C felony if the suspension or
revocation resulted from any of the following:
(a) Habitual offender status under ORS 809.640.
(b) Any degree of murder, manslaughter, criminally negligent
homicide or assault resulting from the operation of a motor
vehicle.
(c) Any crime punishable as a felony with proof of a material
element involving the operation of a motor vehicle.
(d) Failure to perform the duties of a driver under ORS
811.705.
(e) Reckless driving under ORS 811.140.
(f) Fleeing or attempting to elude a police officer under ORS
811.540.
(g) Driving while under the influence of intoxicants under ORS
813.010.
(h) Use of a commercial motor vehicle in the commission of a
crime punishable as a felony.
(4) The crime is a Class A misdemeanor if the suspension or
revocation is any of the following:
(a) A suspension under ORS 809.410 (2) resulting from
commission by the driver of any degree of recklessly endangering
another person, menacing or criminal mischief, resulting from the
operation of a motor vehicle.
(b) A revocation under ORS 809.410 (3) resulting from perjury
or the making of a false affidavit to the Department of
Transportation.
(c) A suspension under ORS 813.410 resulting from refusal to
take a test prescribed in ORS 813.100 or for taking a breath
{ + or blood + } test the result of which discloses a blood
alcohol content of:
(A) .08 percent or more by weight if the person was not driving
a commercial motor vehicle;
Enrolled House Bill 3344 Page 2
(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) A suspension of a commercial driver license or right to
apply for a commercial driver license under ORS 809.410 (18)
resulting from failure to perform the duties of a driver under
ORS 811.700 while driving a commercial motor vehicle.
(e) A suspension of a commercial driver license under ORS
809.400 (3)(b) where the person's commercial driving privileges
have been suspended or revoked by the other jurisdiction for
failure of or refusal to take a chemical test to determine the
alcoholic content of the person's blood under a statute that is
substantially similar to ORS 813.100.
**************************** SECTION 3. ORS 813.120 is amended
to read:
813.120. (1) A report required by ORS 813.100 shall disclose
substantially all of the following information:
(a) Whether the person, at the time the person was requested to
submit to a test, was under arrest for driving a motor vehicle
while under the influence of intoxicants in violation of ORS
813.010 or of a municipal ordinance.
(b) Whether the police officer 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) Whether the person refused to submit to a test or if the
person submitted to a breath { + or blood + } test whether the
level of alcohol in the person's blood, as shown by the test, was
sufficient to constitute being under the influence of
intoxicating liquor under ORS 813.300.
(d) Whether the person was driving a commercial motor vehicle
and refused to submit to a test or if the person submitted to a
breath { + or blood + } test whether the level of alcohol in the
person's blood, as shown by the test, was .04 percent or more by
weight.
(e) Whether the person was informed of consequences and rights
as described under ORS 813.130.
(f) Whether the person was given written notice { + of intent
to suspend + } required by ORS 813.100 { + (3)(b) + }.
(g) If the arrested person took a test, a statement that the
person conducting the test was appropriately qualified.
(h) If the arrested person took a test, a statement that any
methods, procedures and equipment used in the test comply with
any requirements under ORS 813.160.
(2) A report required by ORS 813.100 may be made in one or more
forms specified by the Department of Transportation.
**************************** SECTION 4. 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
Enrolled House Bill 3344 Page 3
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
{ - or fails a breath test - } , the person's driving
privileges will be suspended. The outcome of a criminal charge
for driving under the influence of intoxicants will not affect
the suspension. The suspension will be substantially longer if
the person refuses a test.
(d) If the person refuses { + a test + } or fails a
{ + breath + } test under ORS 813.100 and has an Oregon driver
license or permit, the license or permit will be taken
immediately and, unless the person does not currently have full
valid driving privileges, a temporary driving permit will be
issued to the person.
(e) If the person refuses a test under ORS 813.100, the person
will not be eligible for a hardship permit for at least 90 days,
and possibly for one year, depending on the person's driving
record. The person may possibly qualify for a hardship permit in
30 days if the person fails a test, depending on the person's
driving record.
(f) After taking a test under ORS 813.100, the person will have
a reasonable opportunity, upon request, for an additional
chemical test for blood alcohol content to be performed at the
person's own expense by a qualified individual of the person's
choosing.
(g) The person has a right to a hearing to challenge the
validity of the suspension before the suspension becomes
effective. The person must make a written request to the
department for such a hearing. If the person wins at the hearing,
the person's driving privileges will not be suspended. If the
person loses at the hearing, the suspension will remain in effect
during any court review of the hearing.
(h) The following times:
(A) If the person is issued a temporary driving permit under
ORS 813.100, the number of hours before the driving permit will
be effective and the number of days the permit will be effective.
(B) The number of days within which a person must request a
hearing under ORS 813.410.
(C) The number of days within which a hearing under ORS 813.410
will be held.
(3) If the person is driving a commercial motor vehicle, the
information about rights and consequences shall include, in
addition to the provisions of subsection (2) of this section,
substantially the following:
(a) If the person refuses a test under ORS 813.100 or submits
to a breath { + or blood + } test and the level of alcohol in
the person's blood is .04 percent or more by weight, the person's
commercial driver license or right to apply for a commercial
Enrolled House Bill 3344 Page 4
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 5. ORS 813.404 is amended
to read:
813.404. When the Department of Transportation imposes a
suspension of a commercial driver license under ORS 813.403 or
813.410 (2), or when the department imposes a suspension of a
commercial driver license under ORS 809.400 (3) for conduct in
another jurisdiction that is substantially similar to that
described in either ORS 813.403 or 813.410 (2), the suspension
shall be for a period of time determined according to the
following:
(1) If the person's commercial driver license has not
previously been suspended under ORS 809.410 (18), 813.403 or
813.410 (2) or under ORS 809.400 (3) for anything other than a
serious traffic violation, and:
(a) The person was not driving a commercial motor vehicle
containing a hazardous material and the suspension is for refusal
of a test under ORS 813.100, the suspension shall be for a period
of three years.
(b) The person was not driving a commercial motor vehicle
containing a hazardous material and the suspension is either
because the person was convicted under ORS 813.010 or 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 was
.04 percent or more by weight, the suspension shall be for a
period of one year.
(c) The person was driving a commercial motor vehicle
containing a hazardous material and the suspension is for refusal
of a test under ORS 813.100, the suspension shall be for a period
of five years.
(d) The person was driving a commercial motor vehicle
containing a hazardous material and the suspension is either
because the person was convicted under ORS 813.010 or 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 was
.04 percent or more by weight, the suspension shall be for a
period of three years.
(2) If the person's commercial driver license has previously
been suspended under ORS 809.410 (18), 813.403 or 813.410 (2), or
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has been suspended under ORS 809.400 (3) for something other than
a serious traffic violation, the suspension shall be for the
lifetime of the person. For purposes of this subsection, a
suspension is not a previous suspension if it arose from the same
occurrence as the current suspension.
**************************** SECTION 6. ORS 813.410 is amended
to read:
813.410. (1) If the Department of Transportation receives from
a police officer a report that is in substantial compliance with
ORS 813.120, the department shall suspend the driving privileges
of the person in this state on the 30th day after the date of
arrest { + or, if the report indicates that the person failed a
blood test, on the 60th day after receipt of the report, + }
unless, at a hearing described under this section, the department
determines that the suspension would not be valid as described in
this section. A suspension of driving privileges imposed under
this subsection shall be for a period of time established under
ORS 813.420.
(2) If the department receives from a police officer a report
pursuant to ORS 813.120 that discloses that the person was
driving a commercial motor vehicle and refused to submit to a
test under ORS 813.100 or submitted to a breath { + or blood + }
test and the person's blood, as shown by the test, had .04
percent or more by weight of alcohol, the department shall
suspend the person's commercial driver license on the 30th day
after the date of arrest { + or, if the report indicates that
the person failed a blood test, on the 60th day after receipt of
the report, + } unless, at a hearing described under this
section, the department determines that the suspension would not
be valid as described in this section. A commercial driver
license suspension imposed under this subsection shall be for a
period of time established under ORS 813.404.
(3) If within 10 days from the date of arrest, { + or, if the
person fails a blood test, within 10 days from the date the
department sends notice of suspension, + } the department
receives a written request for a hearing from a person whose
driving privileges or commercial driver license the department
proposes to suspend under this section, the department shall
provide a hearing in accordance with this section. Except as
otherwise provided under this section, a hearing held by the
department under this section shall be subject to the provisions
for contested cases, other than appeal provisions, under ORS
183.310 to 183.550. The applicable appeal provisions are as
provided under ORS 813.450 and section 24, chapter 672, Oregon
Laws 1985. Notwithstanding ORS 809.430, the department is not
required to give any notice of intent to suspend or suspension in
addition to that provided under ORS 813.100.
(4) A hearing required by this section is subject to all of the
following:
(a) The hearing shall be before a representative of 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 contract with any person or agency to
hold the hearing on behalf of the department and to report
findings from the hearing to the department and any person or
Enrolled House Bill 3344 Page 6
agency may in individual cases issue final orders on behalf of
the department.
(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) 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) 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.
Enrolled House Bill 3344 Page 7
(7) Unless a person fails, without just cause, to appear in
person or through an attorney at a hearing requested under this
section, a person shall have the right to appeal any final order
by the department after a hearing under this section by filing a
petition. The following apply to this subsection:
(a) The person shall file the petition in the circuit court for
the county where the person resides or, if the person does not
reside in Oregon, in the circuit court of the county in which the
arrest took place within 30 days after issuance of the final
order of the department.
(b) The court upon receipt of the petition shall set the matter
for hearing upon 10 days' notice to the department and the
petitioner unless hearing is waived by both the department and
the petitioner.
**************************** SECTION 7. ORS 813.420 is amended
to read:
813.420. When the Department of Transportation imposes a
suspension under ORS 813.410, the suspension shall be for a
period of time determined according to the following:
(1) If the suspension is for refusal of a test under ORS
813.100 and the person is not subject to an increase in the
suspension time for reasons described in ORS 813.430, the
suspension shall be for a period of one year.
(2) If the suspension is for refusal of a test under ORS
813.100 and the person is subject to an increase in the
suspension time for reasons described in ORS 813.430, the
suspension shall be for a period of three years.
(3) 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 suspension time for reasons
described in ORS 813.430, the suspension shall be for a period of
90 days.
(4) 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 suspension time for reasons
described in ORS 813.430, the suspension shall be for a period of
one year.
**************************** SECTION 8. ORS 813.470 is amended
to read:
813.470. The Department of Transportation shall make a notation
on the driving record of a person indicating that the person was
acquitted of a charge of driving under the influence of
intoxicants if:
(1) The person's driving privileges were suspended 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;
(2) An accusatory instrument was filed charging the person with
driving under the influence of intoxicants in violation of ORS
813.010 arising out of the same incident that led to the
suspension of the person's driving privileges;
(3) The person was acquitted of the charge; and
(4) The person presents the department with a certified copy of
the judgment of acquittal from the court clearly showing the
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location of the court, the date of the arrest and the findings of
the court.
**************************** SECTION 9. 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 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 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 809.420 (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 809.420 (2)(c). This period of one year shall be reduced
Enrolled House Bill 3344 Page 9
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
rendering it unsafe for the person to drive 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
major traffic offense as defined in ORS 153.500 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.
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Passed by House April 13, 1995
Repassed by House June 2, 1995
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate June 1, 1995
...........................................................
President of Senate
Enrolled House Bill 3344 Page 10
Received by Governor:
......M.,............., 1995
Approved:
......M.,............., 1995
...........................................................
Governor
Filed by Office of Secretary of State:
......M.,............., 1995
...........................................................
Secretary of State
Enrolled House Bill 3344 Page 11