75th OREGON LEGISLATIVE ASSEMBLY--2010 Special Session

                            Enrolled

                         House Bill 3601

Sponsored by Representative STIEGLER; Representatives BARKER,
  CLEM, GARRETT, GELSER, HUFFMAN, KAHL, KOMP, ROBLAN, SCHAUFLER,
  J SMITH, VANORMAN, WHISNANT (Presession filed.)

                     CHAPTER ................

                             AN ACT

Relating to driving while under the influence of intoxicants;
  creating new provisions; and amending ORS 813.410 and 813.412.

Be It Enacted by the People of the State of Oregon:

  SECTION 1. ORS 813.410 is amended to read:
  813.410. (1) If the Department of Transportation receives from
a police officer a report that is in substantial compliance with
ORS 813.120, the department shall suspend the driving privileges
of the person in this state on the 30th day after the date of
arrest or, if the report indicates that the person failed a blood
test, on the 60th day after receipt of the report, unless, at a
hearing described under this section, the department determines
that the suspension would not be valid as described in this
section. A suspension of driving privileges imposed under this
subsection shall be for a period of time established under ORS
813.420.
  (2) If the department receives from a police officer a report
pursuant to ORS 813.120 that discloses that the person holds a
commercial driver license and that the person was driving a motor
vehicle or commercial motor vehicle and refused to submit to a
test under ORS 813.100 or that the person was driving a
commercial motor vehicle and 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, 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

Enrolled House Bill 3601 (HB 3601-B)                       Page 1

contested cases, other than appeal provisions, under ORS chapter
183. 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)  { + Except as provided in subsection (5) of this
section, + } a hearing required by this section is subject to all
of the following:
  (a) The hearing shall be   { - before - }  { +  conducted
by + } an administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605.
    { - (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. - }
   { +  (b) The administrative law judge shall conduct the
hearing by telephone or other two-way electronic communication
device. + }
  (c) The department may authorize the administrative law judge
to issue a final order in any case.
  (d) A person who requests a hearing under this section and who
fails, without just cause, to appear   { - in person - }  { +
personally + } or through an attorney waives the right to a
hearing. 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 - }  { +  appearance + } of
witnesses  { + by telephone or other two-way electronic
communication device + } 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)(a) A person or a police officer may request that a
hearing required by this section be conducted in person.
  (b) The department, by rule, shall establish the manner and
time limitation requirements by which a person or a police
officer may request that a hearing be conducted in person.
  (c) Unless there is an agreement between the person and the
department that the hearing be conducted elsewhere, a hearing
requested under this subsection 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.
  (d) 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 under this subsection by the person and the production
of relevant documents. + }

Enrolled House Bill 3601 (HB 3601-B)                       Page 2

    { - (5) - }  { +  (6) + } This subsection shall be narrowly
construed so as to effect the legislative purpose of limiting the
scope of hearings under this section. The scope of a hearing
under this section shall be limited to whether the suspension is
valid as described in this subsection. A suspension under this
section is valid if all of the following requirements have been
met:
  (a) The person, at the time the person was requested to submit
to a test under ORS 813.100, was under arrest for driving while
under the influence of intoxicants in violation of ORS 813.010 or
a municipal ordinance.
  (b) The police had reasonable grounds to believe, at the time
the request was made, that the person arrested had been driving
under the influence of intoxicants in violation of ORS 813.010 or
of a municipal ordinance.
  (c) The person refused a test under ORS 813.100, or took a
breath or blood test and the test disclosed that the level of
alcohol in the person's blood at the time of the test was:
  (A) 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) If the report under ORS 813.120 indicates that the person
was driving a commercial motor vehicle, the vehicle was in fact a
commercial motor vehicle as defined in ORS 801.208.
  (e) The person had been informed under ORS 813.100 of rights
and consequences as described under ORS 813.130.
  (f) The person was given written notice required under ORS
813.100.
  (g) If the person arrested submitted to a test under ORS
813.100, the person administering the test was qualified to
administer the test under ORS 813.160.
  (h) If the person arrested submitted to a test under ORS
813.100, the methods, procedures and equipment used in the test
complied with requirements under ORS 813.160.
    { - (6) - }  { +  (7) + } A suspension imposed under this
section shall remain in effect pending any appeal or remand of a
final order issued under this section and there shall be no stay
of the suspension pending appeal or remand.
    { - (7) - }  { +  (8) + } Unless a person fails, without just
cause, to appear   { - in person - }  { +  personally + } or
through an attorney at a hearing requested under this section, a
person shall have the right to appeal any final order by the
department after a hearing under this section by filing a
petition. The following apply to this subsection:
  (a) The person shall file the petition in the circuit court for
the county where the person resides or, if the person does not
reside in Oregon, in the circuit court of the county in which the
arrest took place within 30 days after issuance of the final
order of the department.
  (b) The court upon receipt of the petition shall set the matter
for hearing upon 10 days' notice to the department and the
petitioner unless hearing is waived by both the department and
the petitioner.
  SECTION 2. ORS 813.412 is amended to read:
  813.412. Notwithstanding ORS 9.160 and 9.320, in any hearing
under ORS 813.410 in which a city attorney or district attorney
does not appear,   { - the peace officer who issued the citation
for - }   { + a police officer actively involved in the

Enrolled House Bill 3601 (HB 3601-B)                       Page 3

investigation of  + }the offense may present evidence, examine
and cross-examine witnesses and make arguments relating to:
  (1) The application of statutes and rules to the facts in the
case;
  (2) The literal meaning of the statutes or rules at issue in
the case;
  (3) The admissibility of evidence; and
  (4) Proper procedures to be used in the hearing.
  SECTION 3.  { + The amendments to ORS 813.410 and 813.412 by
sections 1 and 2 of this 2010 Act apply to arrests made on or
after the effective date of this 2010 Act. + }
                         ----------

Passed by House February 23, 2010

      ...........................................................
                                             Chief Clerk of House

      ...........................................................
                                                 Speaker of House

Passed by Senate February 24, 2010

      ...........................................................
                                              President of Senate

Enrolled House Bill 3601 (HB 3601-B)                       Page 4

Received by Governor:

......M.,............., 2010

Approved:

......M.,............., 2010

      ...........................................................
                                                         Governor

Filed in Office of Secretary of State:

......M.,............., 2010

      ...........................................................
                                               Secretary of State

Enrolled House Bill 3601 (HB 3601-B)                       Page 5