If you or your attorney have made a request to the DMV or Office of Administrative Hearings in Oregon for a DMV Implied Consent Hearing, it may be rescheduled by the Office of Administrative Hearings, a law enforcement witness, or the Petitioner (you, the driver). If you read and remember only one thing on this page, read this: Objecting to the postponement and rescheduling of a DMV hearing by law enforcement witness, or rescheduling a DMV hearing to a time more convenient for yourself is not a good DIY (do-it-yourself) project. It’s best to have the assistance of an Oregon DUI lawyer— not because it’s complicated, but because you can lose procedural or even substantive rights if you’re not careful.
What If My Oregon DMV Hearing Is Rescheduled By The Government?
If an Implied Consent hearing ever needs to be reset, it’s best if it’s due to the inability for the government to present it’s case, or because a law enforcement witness cannot participate in the hearing. The reason for this is because– as a general rule– if the government cannot proceed, it’s a qualified win for you. There are ways in which the government can postpone and reschedule a hearing, but unless they have cause to do so, you will “win” the hearing and your driver’s license will not be suspended. Law enforcement only get’s one reset due to an “official duty conflict.”
What If I Need To Reschedule My Oregon DMV Hearing?
Normally DMV hearings are set within 30 day’s following the date of your arrest or citation for DUI. If you need to reschedule your Oregon Implied Consent Hearing, hopefully it’s due to “department error” as opposed to “other just cause.” See the rules and statutes below. In short, if you ask for a reset based on a problem of your own (e.g. the date and time of the hearing is merely an inconvenience), then a reset of the hearing will mean your driver’s license suspension will go into effect on the 30th day following your arrest or citation, and your suspension will not be lifted unless and until the DMV hearing is rescheduled and you prevail. However, if you can argue that the hearing must be reset due to department error, then the driver’s license suspension will not go into effect at all unless and until the hearing is rescheduled and you lose.
Applicable Oregon Statutes and Administrative Rules
ORS 813.410. Receipt of police reports with implied consent test results; hearing; appeal and review
(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 under ORS 813.120 and the person holds commercial driving privileges and the person was driving a motor vehicle or commercial motor vehicle and refused to submit to a test under ORS 813.100 or 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 driving privileges 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 driving privileges suspension imposed under this subsection shall be for a period of time established under ORS 809.510 or 809.520.
(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 request for a hearing from a person whose driving privileges or commercial driving privileges the department proposes to suspend under this section, the department shall provide a hearing in accordance with this section. The person shall request a hearing in the form and manner prescribed by the department by rule. Except as otherwise provided under this section, a hearing held by the department under this section is subject to the provisions for 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 conducted by an administrative law judge assigned from the Office of Administrative Hearings established under ORS 183.605.
(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 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 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 may 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.
(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.
(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.
(8) Unless a person fails, without just cause, to appear 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.
ORS 813.440. Validity of suspensions, grounds for hearing to determine
(1) Notwithstanding ORS 813.410, the Department of Transportation may provide a hearing to determine the validity of a suspension under ORS 813.410 only if the time requirements under ORS 813.410 could not be met because of any of the following:
(a) The person’s physical incapacity, verified by a physician to the satisfaction of the department to be of a nature that would prevent the person from making the appropriate request or attending the hearing.
(b) A death in the immediate family of the person, verified to the satisfaction of the department.
(c) An error of the department.
(d) The inability of a subpoenaed police officer to appear due to the officer’s illness, vacation or official duty conflicts. The department shall set forth by rule the conditions that constitute “official duty conflicts.” A hearing may not be rescheduled more than once for reasons described in this paragraph.
(e) A request for a change of administrative law judge under ORS 183.645.
(f) The inability of the person’s attorney to appear due to the attorney’s illness, vacation or scheduling conflict arising from other court or administrative hearing appearances. A hearing must be rescheduled no later than 45 days after the date of the original hearing and may not be rescheduled more than once for reasons described in this paragraph.
(g) Other just cause as defined by the department by administrative rule.
(2) A hearing held under this section is subject to the same provisions as a hearing held under ORS 813.410, except that the department is not required to hold the hearing and make the determination within the time required by ORS 813.410.
(3) The granting of a hearing under this section shall not delay the imposition of a suspension under ORS 813.410 within the time required under ORS 813.410. However, if a person establishes that the person was deprived by either department error or a subpoenaed police officer’s illness, vacation or official duty conflicts of an opportunity to appear at a hearing, the department shall rescind the suspension and shall promptly schedule a subsequent hearing to determine the validity of the suspension under ORS 813.410. In other cases under this section, when the department is unable to hold the hearing within the time required by ORS 813.410, the department shall rescind any suspension imposed under ORS 813.410 only if the department determines, at a hearing held under this section, that the suspension was not valid as described under ORS 813.410.
(4) The following apply to this section:
(a) The department shall issue a final order within 10 days after the hearing described in this section.
(b) If the department has rescinded a suspension under subsection (3) of this section and if the department, at the hearing described in this section, determines that the suspension is valid as described under ORS 813.410, the department shall reinstate the suspension effective five days after the final order is issued.
(c) Notwithstanding ORS 809.430, no additional notice or order of suspension need be given.
Department of Transportation
Driver and Motor Vehicle Services Division – Chapter 735
Division 90
IMPLIED CONSENT HEARING PROCEDURES
OAR 735-090-0000
DefinitionsAs used in OAR 735-090-0000 through 735-090-0120, unless the context requires otherwise:
(1) “Agency” means Driver and Motor Vehicle Services Division (DMV) of the Oregon Department of Transportation.
(2) “Error of the Department,” as used in ORS 813.440(1)(c), means:
(a) An act or omission of the agency or OAH, which by its occurrence, prevented the petitioning party from participating in a recorded or reported hearing that determines the validity of a suspension of driving privileges; or
(b) An act or omission of the agency or OAH in issuing a subpoena to a witness, including a police officer, to a recorded or reported hearing that determines the validity of a suspension of driving privileges and where the witness’ participation at the reported or recorded hearing is required in order for the agency to establish the required elements under ORS 813.410(6); or
(c) An act or omission of the agency or OAH in issuing a subpoena to a necessary witness where:
(A) The agency receives the petitioning party’s request to subpoena a necessary witness more than 72 hours prior to the time and date that a recorded or reported hearing that determines the validity of a suspension of driving privileges is scheduled; and
(B) The act or omission, by its occurrence, prevented the necessary witness from participating in the hearing; or
(d) An act or omission of the agency or OAH that prevents a recorded or reported hearing that determines the validity of a suspension of driving privileges from being conducted.
(3) “In-person hearing” means that at least one of the petitioning party and at least one agency witness are present in the same location as the Administrative Law Judge.
(4) “OAH” means the Office of Administrative Hearings when it is performing services on behalf of the agency under OAR chapter 735 division 90.
(5) “Other just cause” as used in ORS 813.440(1)(g) means:
(a) Circumstances beyond the reasonable control of the petitioning party and beyond the ability of a reasonable person to foresee, which:
(A) Prevented the petitioning party from filing a timely request for a hearing as set forth in ORS 813.410(3); or
(B) Prevented the petitioning party from requesting the agency or OAH to subpoena a necessary witness more than 72 hours prior to the time and date that a recorded or reported hearing that determines the validity of a suspension of driving privileges is scheduled; or
(C) Prevented the petitioning party from participating in a recorded or reported hearing that determines the validity of a suspension of driving privileges.
(b) Circumstances where a petitioning party moves for a continuance of a hearing or a request that a necessary witness be subpoenaed to a hearing and, due to circumstances beyond the control of the petitioning party:
(A) The necessary witness does not appear at the hearing because the necessary witness was unknown to the petitioning party prior to a recorded or reported hearing that determines the validity of a suspension of driving privileges; or
(B) The necessary witness does not appear at the hearing and could not be served with a subpoena at least 72 hours prior to a recorded or reported hearing that determines the validity of a suspension of driving privileges.
(c) Circumstances beyond the control of a petitioning party that require a continuance of a hearing because documentary evidence referred to or presented at the hearing by a necessary witness was not provided to the petitioning party either before or during the hearing.
(d) Circumstances beyond the control of the agency or OAH that prevented an administrative law judge from conducting a recorded or reported hearing that determines the validity of a suspension of driving privileges.
(e) Circumstances that require the department to issue a notice of amendment to an Implied Consent Combined Report (Form 735-0075) or Implied Consent Blood Test Failure Report (Form 735-0055) and the petitioning party is unable to file a timely request for hearing as set forth in ORS 813.410(3).
(6) “Necessary witness” means a witness whose testimony is essential to support a material fact or position of the petitioning party. The fact or position to be supported by the necessary witness must be within the scope of an implied consent hearing as set forth in ORS 813.410(6).
(7) “Offense” means the alleged Driving While Under the Influence of Intoxicants incident.
(8) “Petitioner” means the person whose driving privileges may be suspended.
(9) “Petitioning Party” means the petitioner or the petitioner’s attorney.
(10) “Received by DMV” means:
(a) Personally delivered to DMV Headquarters. 1905 Lana Ave. NE, Salem, OR;
(b) Delivered by mail to DMV Headquarters, 1905 Lana Ave. NE, Salem, OR 97314;
(c) Received by facsimile machine at telephone number (503) 945-5521; or
(d) Received by electronic mail via the implied consent hearing request form provided on DMV’s website – OregonDMV.com.