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541.345.4500
Eugene Oregon Criminal
Defense Lawyer / Attorney
Call Now
541.345.4500
Eugene Oregon Criminal
Defense Lawyer / Attorney
The Duvall Law Office is based in Eugene, Oregon, but represents individuals throughout the state. If you are seeking an experienced Driving Under the Influence of Intoxicants (aka DUII / DUI / DWI or Drunk Driving) lawyer, please call us to schedule an appointment. In addition to representing those accused of misdemeanor DUII, we represent those accused of felony DUII as well.
Our office created a “checklist” to use as a guide at DUII Implied Consent driving license suspension DMV hearings. It is set forth below for your review.
Opening Statement
___ We will be challenging the legality of the stop and the legality of the arrest in this case pursuant to Bish v. MVD, 97 Or App 648 (1989),[i]and Pooler v. MVD, 306 Or 47 (1988).[ii]
___ [If hearing has been postponed upon other than Petitioner’s request]: We are challenging the reset of this hearing.[iii]
___ [If more than one officer/state witness present] We move to exclude witnesses.[iv]
State’s Case-in-Chief
___ Validity of officer’s initial contact with the client.[v]
___ Validity of officer’s continued contact with the client.[vi]
___ Validity of officer’s request for client to perform FSTs:
a. ___ Client consented?[vii]
b. ___ Officer had probable cause (and exigent circumstances)?[viii]
___ Validity of officer’s arrest:
a. ___ Client drove.[ix]
b. ___ A motor vehicle.
c. ___ While under the influence of intoxicants.
d. ___ On a public highway or premises open to the public.[x]
e. ___ Within the appropriate venue.
___ Client was arrested for DUII under state statute or municipal ordinance.[xi]
___ Officer honored client’s request to communicate with counsel or others.[xii]
___ Officer informed client of “rights and consequences.”[xiii]
___ At the time of the sample request, police had reasonable grounds to believe client had driven under the influence.[xiv]
If BAC Failure Alleged[xv]
___ Officer used “checklist.”[xvi]
___ Officer certified to operate the Intoxilyzer.[xvii]
___ Machine was certified with 90 days prior to the test.[xviii]
___ Officer complied with all required testing procedures.[xix]
a. ___ Operator conducts proper pre-test observation of client.[xx]
b. ___ Operator confirmed that instrument displayed, and operator followed, “prompts.”[xxi]
c. ___ Operator has used bar code scanner and/or keyboard to “sufficiently” identify operator, establish operator possesses valid permit and PIN combination, and “link” client to the test.[xxii]
d. ___ Operator has instructed client how to give a proper breath sample and told the client to blow after the “prompt” is displayed.[xxiii]
e. ___ Operator complied with continued observation of client.[xxiv]
f. ___ Operator repeated “d” above.[xxv]
g. ___ Instrument performed test with “control sample.”[xxvi]
[f. (If error code) ___ Operator responded correctly to error code.[xxvii]]
If Refusal Alleged
___ Client actually refused.[xxviii]
If Enhanced Suspension Alleged
___ Basis for enhancement placed in record.[xxix]
Required Documents
___ DOT received, from a police officer, a report in “substantial” compliance with ORS 813.420 by the tenth day following the arrest.[xxx]
___ “Breath Test Report,” if BAC failure alleged.[xxxi]
___ “Certificate of Accuracy for Alcohol Breath Testing Equipment,” if BAC failure alleged.[xxxii]
Hearing Location (if in-person, not telephone hearing)
___ The in-person hearing is within the county of where the “alleged offense” (not arrest) or within 100 miles of where the “alleged offense” (not arrest) occurred.[xxxiii]
Service of Proposed Suspension
___ Officer provided client with a copy of the suspension notice.[xxxiv]
[If Urine Test Refusal[xxxv]]
[If Blood Test Failure[xxxvi]]
[If Commercial Vehicle: ___ Client was operating a commercial motor vehicle.[xxxvii]]
Closing Argument
ORS 813.410(1) states in relevant part that under Oregon’s Implied Consent law: “[T]he department shall suspend the driving privileges of the person … unless… the department determines that the suspension would not be valid as described in this section.”
The proposed suspension in this case should be dismissed because:
[i]“[T]he hearings officer must consider the propriety of an arrest only if the driver raises the issue during the evidentiary part of the hearing.” Bish at 652.
[ii] “Upon respondent’s request, the hearings officer was required under former ORS 482.541 to determine whether respondent validly was under arrest for DUII when asked to take the chemical breath test.” Pooler at 51.
[iii] “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.” ORS 813.410(4)(e).
ORS 813.440(1) states in part: “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:
* * *
(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.
* * *
(g) Other just cause as defined by the department by administrative rule.”
OAR 735-090-0120 states: (1) If a subpoenaed police officer is unable to appear at a hearing under ORS 813.410 due to an officer’s illness, vacation or official duty conflicts, a hearing will be re-scheduled as soon as practicable.
(2) DMV will rescind the suspension of the petitioner’s driving privileges pending the outcome of the hearing conducted pursuant to ORS 813.440(1)(d).
(3) The DMV or OAH may receive notification of an officer’s illness, vacation or official duty conflict before or after a scheduled hearing. Post hearing notification must be received by the DMV or OAH no later than 10 days after the hearing. Verification must be to the satisfaction of the DMV.
(4) An official duty conflict exists if the subpoenaed police officer is unable to attend the hearing due to any of the following conditions:
(a) Community caretaking pursuant to ORS 133.033;
(b) Court;
(c) Hazardous or impeding travel conditions;
(d) Participating in employer approved training;
(e) Physical incapacity; or
(f) Service in the U.S. Armed Forces, military reserves, National Guard or the organized militia.
(5) Nothing in this rule prevents the taking of evidence at the time of the originally scheduled hearing and continuing the hearing for the testimony of the unavailable police witness(es).
Higgins v. MVD, 139 Or App 314 (1996) (Petitioner may challenge reset of hearing beyond 30th day of arrest). Under Higgins, an officer’s letter to MVD stating that he was “assigned to training” was not “substantial evidence in the record” that the officer had an official duty conflict under the old text of the rule which stated that an official duty conflict include the officer absence due to “priority official training.”
Blaisdell v. MVD, 145 Or App 468 (1996) (Officer’s inability to attend initial hearing due to car trouble was not an “official duty conflict” under the old text of the rule).
[iv]OAR 137-003-0595(2): “The administrative law judge may exclude witnesses from the hearing, except for a party, a party’s authorized representative, expert witnesses, the agency representative, one agency officer or employee and any persons authorized by statute to attend.”
ORS 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, a police officer actively involved in the 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.
OAR 735-090-0000: Definitions. As used in OAR 735-090-0000 through 735-090-0120, unless the context requires otherwise: * * * (7) “Offense” means the alleged Driving While Under the Influence of Intoxicants incident.
OAR 137-003-0595(1): Unless otherwise required by law, contested case hearings are open to the public unless the agency by rule or in writing determines that the hearing will be closed to non-participants in the hearing.
[v] If justification for stop is based on hearsay, consider asking ALJ to consider the nonexclusive, five factors from Cole/Dinsmore prior to determining that such hearsay supports “substantial evidence in the record” to find such stop was legal:
- Alternatives to relying on hearsay (weighs against DMV).
- Importance of facts sought (without valid stop/arrest, Petitioner prevails).
- State of the supporting or opposing evidence (Check on presence of missing officer’s report. If no report, then this weighs in favor of Petitioner (neutral if report present).
- Potential efficacy of cross-examination. Question officer re 2nd factor (i.e. has he reviewed written report of missing officer, does he have the missing officer’s report with him, does he recall exactly what the missing officer told him?). Ask the officer step by step questions which the missing officer would know and which would confirm either an infraction or reasonable suspicion.
- Significance of consequences.
See Cole/Dinsmore v. DMV, 336 Or 565 (2004).
Note: OAR 735-090-0130: In accordance with the definition of “Error of the Department” specified in OAR 735-090-0000(2), in a hearing that determines the validity of a suspension of driving privileges under ORS 813.410, if hearsay evidence is used to establish the required elements under ORS 813.410(5) and a petitioning party presents substantial evidence that contradicts the hearsay evidence, DMV will rescind the suspension and OAH will continue the hearing pursuant to ORS 813.440(1)(c) and subpoena the hearsay witness to the continued hearing. (Note: ORS 813.410(5) is now ORS 813.410(6), but the rule has not been updated).
[vi] Did officer have reasonable suspicion of a crime justifying a continuation of the stop? See Rodgers/Kirkeby, 347 Or 610 (2010): “Here, both defendants have shown the required nexus. In both cases the officers had completed the traffic violation investigation and should have either issued a citation or informed each defendant that they could leave. As already explained, the officers in each case did neither and instead unlawfully detained each defendant. It was during the period of unlawful detention that the officers requested that each defendant consent to a search…. [W]e conclude that each defendant’s consent, even if voluntary, was the product of police conduct that violated Article I, section 9. Because the consent to search in each case was a product of the unlawful seizure, the evidence obtained during the search, in both cases, must be suppressed.”
[vii] “The proper test for voluntariness is whether, under the totality of the circumstances, the consent was given by an act of free will or was the result of coercion, express or implied. State v. Dimeo, 304 Or. 469, 474, 747 P.2d 353 (1987); State v. Wolfe, 295 Or. 567, 572, 669 P.2d 320 (1983). The state bears the burden of proving voluntariness by a preponderance of the evidence. State v. Paulson, 313 Or. 346, 351-52, 833 P.2d 1278 (1992).
“The relevant factors to be considered in determining the voluntariness of consent include (1) whether physical force was used or threatened; (2) whether weapons were displayed; (3) whether the consent was obtained in public; (4) whether the person who gives consent was the subject of an investigation; (5) the number of officers present; (6) whether the atmosphere surrounding the consent was antagonistic or oppressive; and (7) whether drug or alcohol use has impaired the defendant’s ability to make a knowing, voluntary, and intelligent choice. State v. Larson, 141 Or.App. 186, 198, 917 P.2d 519, rev. den., 324 Or. 229, 925 P.2d 908 (1996).” State v. Machuca, 231 Or App 232, 239 (2009), rev’d on other grounds, 347 Or 644 (2010).
[viii] Both subjective and objective probable cause are required. See State v. Stroup, 147 Or App 118 (1997): “Whether [the officer’s] belief that he had probable cause to require defendant to undergo the field sobriety tests was objectively reasonable depends on the totality of the circumstances. Defendant was not stopped for erratic driving, nor did she exhibit any of the typical characteristics of a person who is under the influence, such as slurred speech or impaired balance. By themselves, a slight odor of alcohol, bloodshot eyes and an admission of drinking alcoholic beverages do not establish probable cause that defendant was mentally or physically impaired by her consumption of alcoholic beverages as required by ORS 813.010(1)(b). In fact, there is a complete paucity of evidence about impairment when the initial HGN test result is disregarded. We conclude that the trial court correctly ruled that [the officer] lacked objective probable cause under ORS 813.010(1)(b) to subject defendant to field sobriety tests.” At 441-42.
[ix]Hilton v. MVD, 308 Or 150, 157 (1989): “We hold that MVD must consider a defense that the licensee was not driving, if such a defense is proffered, before it may suspend the licensee’s license. [Citation omitted]. Because MVD refused to consider Hilton’s defense, the suspension was invalid.”
[x] See State v. Sterling, 196 Or App 626 (2004) (Private driveway was “open to the public”): “In sum, the cases construing the term ‘premises open to the public’ teach that the phrase should be defined so as to achieve its primary purpose, which is to protect members of the public from serious driving offenses; that signs discouraging the public from entering do not necessarily close premises to the public; that the absence of a physical barrier, although not itself sufficient to prove openness to the public, is strong evidence to that effect; and that the key evidentiary fact the state has to prove is that members of the public, including ‘those with a legitimate business purpose, such as garbage collectors, meter readers and paper carriers, are allowed on the premises.'”
[xi] ORS 813.410(6)(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.”
[xii] See Brown v. DMV, 219 Or App 607 (2008): “[I]f an arrested driver asks to speak with someone (including but not limited to counsel), the driver “must beafforded reasonable opportunity to do so unless or until it would interfere with effective administration of the [breath] test,” including by interrupting the observation period. Moore, 293 Or. at 723, 652 P.2d 794.
“If the police failed to afford the driver a reasonable opportunity to communicate, the driver’s refusal to take the test would have resulted from a legally unauthorized procedure, and an administrative penalty imposed based on that procedure would be invalid. (citation omitted).
“[I]n a license suspension proceeding, the driver bears the burden of establishing that his or her opportunity to communicate with counsel or others was unreasonably restricted. Walls v. DMV, 154 Or. App. 101, 107, 960 P.2d 888 (1998).” Brown at 613-14.
Also see State v. Freytag, 230 Or App 694, 698 (2009): “Opinions from the Supreme Court and this court appear to presume that the Fourteenth Amendment right to communicate includes the right to communicate, not only with an attorney, but with others as well. In State v. Newton, 291 Or. 788, 807, 636 P.2d 393 (1981), overruled by Spencer, 305 Or. 59, 750 P.2d 147 (1988), a plurality of the Supreme Court held that the Fourteenth Amendment protects an arrested driver’s liberty interest in communication not only with counsel, but also with the outside world. The opinion referred to the ‘[f]reedom of an arrested person to communicate’ and ‘liberty to communicate as he chose.’ Newton, 291 Or. at 807, 636 P.2d 393. The plurality opinion on that issue was restated in Moore v. Motor Vehicles Division, 293 Or. 715, 719, 652 P.2d 794 (1982), in which the court described Newton as ‘holding that an arrested person is entitled to communicate with counsel or others.’ (Emphasis added.) Newton, however, was overruled in Spencer, albeit on grounds not implicating the Fourteenth Amendment. And in Brown, 219 Or. App. at 612-13, 185 P.3d 459, we wrote, ‘[I]f an arrested driver asks to speak with someone (including but not limited to counsel),’ the driver must be afforded the opportunity to do so.”
“In a civil proceeding for revocation of a driver’s license, the revocation is invalid if the breath test is not properly administered, regardless of causation. Moore, 293 Or. at 723-24, 652 P.2d 794; Hays v. DMV, 230 Or. App. 559, 562, 216 P.3d 902 (2009).” Freytag at 699.
[xiii]State v. Lyons, 118 Or App 660 (1993): “[A]n officer must always inform a driver of the ‘rights and consequences’ before administering a breath test. [citations omitted]. The officer has that obligation, even if the driver has voluntarily consented to take the test without initially refusing. See State v. Trenary, supra; State v. Weishar, 78 Or.App. 468, 478, 717 P.2d 231, rev. den., 301 Or. 338, 722 P.2d 737 (1986). Defendant had the right to be properly informed before taking the test, and he was not.” At 663.
ORS 813.410(6) states in part: “A suspension under this section is valid if all of the following requirements have been met:
* * *
(e) The person had been informed under ORS 813.100 of rights and consequences as described under ORS 813.130.”
ORS 813.100(1) states in part: “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.”
ORS 813.130 states: “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 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, or refuses a urine test under ORS 813.131 and 813.132, 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) If the person is issued a temporary driving permit under ORS 813.100, the information provided to the person shall include the number of hours before the driving permit will be effective and the number of days the permit will be effective.
(j) The information provided to the person shall include the number of days within which a person must request a hearing under ORS 813.410.
(k) The information provided to the person shall include the number of days within which a hearing under ORS 813.410 will be held.
(L) 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.”
[xiv] ORS 813.410(6) states in part: “A suspension under this section is valid if all of the following requirements have been met:
* * *
“(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.”
[xv] ORS 813.410(6) states in part: “A suspension under this section is valid if all of the following requirements have been met:
* * *
(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.”
[xvi] OAR 257-030-0130(1) Test Identification: A check list containing an outline of the approved procedures shall be used and completed by all operators of this instrument. Failure to record information specified in this section does not invalidate the test result obtained if the testing procedures were otherwise followed.
But see section (7) of the above rule: Failure to record information specified in section (1) and subsection (4)(b) of this rule does not invalidate the test result obtained if the testing procedures were otherwise followed.
[xvii] ORS 813.410(6) states in part: “A suspension under this section is valid if all of the following requirements have been met:
* * *
(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.”
ORS 813.160(1)(b)(E) states in relevant part: “Permits may be issued to police officers only upon satisfactory completion of the prescribed training course and written examination. A permit must state the methods and equipment that the police officer is qualified to use. Permits are subject to termination or revocation at the discretion of the Department of State Police.”
OAR 257-030-0150: (1) No individual shall operate approved breath testing equipment to determine the alcoholic content of the blood of a person in accordance with the provisions of ORS 813.160 unless that individual has been issued and maintains a valid permit to operate such equipment by the Oregon State Police.
(2) To qualify for training and to obtain a permit for the operation of approved breath testing equipment, an individual must be a police officer as defined in ORS 801.395 or a trained technician of the Oregon State Police. The term police officer includes reserve police officer.
[xviii]ORS 813.160(1): “A chemical analysis is valid under ORS 813.300 if:
(b) …It is an analysis of a person’s breath and… the Department of State Police shall do all of the following: ***
(C) Test and certify the accuracy of equipment to be used by police officers for chemical analyses of a person’s breath before regular use of the equipment and periodically thereafter at intervals of not more than 90 days. Tests and certification required by this subparagraph must be conducted by trained technicians. Certification under this subparagraph does not require a signed document.”
OAR 257-030-0170: Pursuant to ORS 813.160(b)(C), a trained technician of the Oregon State Police shall conduct an accuracy test of approved breath testing equipment and certify the accuracy of the equipment if accuracy test performance is within a range of 0.010 high to 0.020 low of the expected value. The testing can be performed by either an on site test, or by remote testing via telephone, modem, or Internet connection utilizing a computer. The computerized testing will utilize a security system to ensure the integrity of the scientific testing of the breath test equipment.
[xix] ORS 813.410(6) states in part: “A suspension under this section is valid if all of the following requirements have been met:
* * *
(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.
ORS 813.160(1)(b) states in relevant part: “It is an analysis of a person’s breath and is performed by an individual possessing a valid permit to perform chemical analyses issued by the Department of State Police and is performed according to methods approved by the Department of State Police.” (Emphasis added).
[xx] OAR 257-030-0130(2): (a) The operator is certain that the subject has not taken anything by mouth (drinking, smoking, eating, taking medication, etc.), vomited, or regurgitated liquid from the stomach into mouth, for at least fifteen minutes before taking the test; (b) There is no requirement that the operator be the person who makes observation of the subject. The person performing the Pre-Test Requirement (observation period) need not possess a permit for the testing of alcoholic content of blood; (c) The Pre-Test Requirement (observation period) does not require that the subject rinse the mouth or remove dentures prior to providing a breath sample; (d) The use of a mouthpiece by the subject during the testing sequence does not constitute a violation of the Pre-Test Requirement.
See State v. Barletta, 188 Or App 113 (2003) (cited as authority by State v. Stewart, 227 Or App 632 (2009):
“The focus of the rule is on the officer’s conduct—whether the officer has complied with the precautions that the rule establishes. See State v. Balderson, 138 Or App 531, 534, 910 P2d 1138 (1996), rev dismissed, 327 Or 555 (1998) (discussing predecessor rule). The test for determining whether the officer has complied with the rule is both subjective and objective.
“‘First, the rule requires that the operator of the test form a subjective belief to the degree of `certainty’ that the test subject has not engaged in any of the acts described by the rule. Second, that belief must be reasonable under the circumstances.’
“State v. Tynon, 152 Or App 693, 696, 955 P2d 250 (1998), rev den, 328 Or 365 (1999).” At 114.
In Tynon, the Court of Appeals stated:
“Our standard of review regarding a trial court’s ruling on whether the state complies with the pre-test requirements for an Intoxilyzer test focuses on a question of fact and a question of law that afford meaning to the rule. See State v. Balderson, 138 Or.App. 531, 534, 910 P.2d 1138, rev. allowed 324 Or. 305, 925 P.2d 908 (1996) (interpreting the “operator must make certain” language of former OAR 257-30-020(1)(b) which also required a 15 minute pre-test observation period). 2 First, the rule requires that the operator of the test form a subjective belief to the degree of “certainty” that the test subject has not engaged in any of the acts described by the rule. Second, that belief must be reasonable under the circumstances. Id. at 536, 910 P.2d 1138.
“Also, the rule expressly contemplates that the operator may rely on the observation of someone else in reaching the required subjective belief. OAR 257-030-0070(2)(b); see also State v. McVay, 83 Or.App. 312, 315, 731 P.2d 466 (1987) (interpreting former OAR 257-030-020(1)(b), that required that “[t]he test operator must make certain”); see also State v. Herring, 112 Or.App. 83, 85-86, 827 P.2d 932 (1992) (holding that the former rule had been complied with when the test operator asked the observer whether the defendant “had done anything?”). However, the text of the rule does not require express communications between the observer and the test operator about what occurred during the absence of the operator, and it is not difficult to think of situations where silence is as effective a communication as oral statements, particularly in situations where procedures and roles are commonly understood by those involved in the administration of the test. 3 Thus, whether “certainty” is reasonable under the circumstances must be tested by all the circumstances of which the operator was aware at the time that the operator formed the belief that the requirements of the rule had been met.” At 696-97
[xxi] OAR 257-030-0130(3) “Test Procedure: The operator shall administer the test (consisting of two valid breath samples, provided within a single testing sequence and culminating in a printed report with a completed test result) as follows:
“(a) Ensure that the instrument display indicates “Ready to Start”;
“(b) Push “Start Test” button to initiate the test sequence;
“(c) Once the operator initiates the testing sequence by pressing the “Start Test” button, the testing sequence shall be conducted without interruption until:
“(A) The instrument completes the test sequence and the operator obtains a completed test report; or
“(B) The operator depresses the “Start Test” button or the “R” key on the keyboard to indicate that the subject refused the test; or
“(C) The operator or the instrument aborts the testing sequence.” (Emphasis added).
Also see section (4)(b) which states in relevant part: “The operator should enter information into the instrument through the bar code scanner and/or keyboard for the purposes of linking a breath test document to the test subject.”
But also see section (7) of the above rule: “Failure to record information specified in section (1) and subsection (4)(b) of this rule does not invalidate the test result obtained if the testing procedures were otherwise followed.”
[xxii] OAR 257-030-0130(3) “Test Procedure: The operator shall administer the test (consisting of two valid breath samples, provided within a single testing sequence and culminating in a printed report with a completed test result) as follows: ***
” (d) Using the instrument’s bar code scanner and/or keyboard, the operator shall enter sufficient information to:
“(A) identify the operator conducting the test; and
“(B) establish that the operator possesses a valid operator permit and PIN combination. The operator should also enter sufficient information to link the test report to the test subject. The instrument will start the testing sequence when the operator’s permit has been validated and the data entry process is complete[.]” (Emphasis added).
OAR 257-030-0130(4)(a) states in relevant part: “The operator shall enter into the instrument a permit and Personal Identification Number (PIN) information through the bar code scanner and/or keyboard for the purpose of: (1) identifying the operator conducting the test, and (2) establishing that the operator possesses a valid operator permit and PIN combination. Only operators who possess both a valid permit and PIN will be authorized to conduct a test sequence.”
[xxiii] OAR 257-030-0130(3): Test Procedure: The operator shall administer the test (consisting of two valid breath samples, provided within a single testing sequence and culminating in a printed report with a completed test result) as follows: ***
(e) After instructing the subject on how to give a proper breath sample, have the subject provide a breath sample through the mouthpiece when “Please blow into mouthpiece to activate tone” appears on the display[.] (Emphasis added).
[xxiv]OAR 257-030-0130(3): “Test Procedure: The operator shall administer the test (consisting of two valid breath samples, provided within a single testing sequence and culminating in a printed report with a completed test result) as follows: ***
(f) Continued Observation Period: The operator shall continue to observe the subject and remain certain that the subject does not take anything by mouth (drink, smoke, eat, take medication(s), etc.), vomit, or regurgitate liquid from the stomach into mouth until the second breath sample request period is completed. The use of a mouthpiece by the subject during the testing sequence does not constitute a violation of the observation period. (Emphasis added).
[xxv]OAR 257-030-0130(3): Test Procedure: The operator shall administer the test (consisting of two valid breath samples, provided within a single testing sequence and culminating in a printed report with a completed test result) as follows: ***
(g) When “Please blow into mouthpiece to activate tone” again appears on the display, have the subject provide a second breath sample[.] (Emphasis added).
[xxvi]OAR 257-030-0130(3)(h): “Once the instrument accepts the second breath sample, it will automatically perform an analysis of a gaseous sample containing a known alcohol vapor concentration (“control sample”) to test the accuracy and proper working order of the instrument. The operator does not need to take any action with the instrument at this time other than to monitor the progression of the instrument through the remainder of the test sequence. If all parameters are met, the instrument will proceed to the next step[.]”
OAR 257-030-0130(4)(k) reads in relevant part: “The instrument will perform an analysis of a gaseous sample containing a known alcohol vapor concentration, the result of which must be within a range of 0.010 high to 0.020 low of the expected value, to test the accuracy and proper working order of the instrument.”
[xxvii]Refer to INTOXILYZER 8000 OPERATOR’S GUIDE, 4.0 STEP THREE – REVIEWING THE TEST REPORT, Common Exception Messages.
[xxviii] ORS 813.410(6) states in relevant part: “A suspension under this section is valid if all of the following requirements have been met: ***
“(c) The person refused a test under ORS 813.100[.]”
See David v. DMV, 209 Or App 39, ___ (2006): “On appeal, DMV argues that the trial court erred in ordering reinstatement of petitioner’s driving privileges. According to DMV, the ALJ correctly concluded that petitioner had refused to take the breath test. DMV argues that the ALJ did not err in concluding that petitioner had refused the breath test because, under the applicable case law, anything substantially short of “unqualified, unequivocal consent” amounts to refusal. Petitioner responds that her insistence that Hoesly reread the rights and consequences notice should not be taken as a refusal without proof that rereading the notice would have substantially delayed the test process. We agree with DMV.”
Note: Can silence be a “refusal”? In response to silence, must operator tell client to “blow into the mouthpiece”? See OAR 257-030-0130(5)(b) states in relevant part: “If during either of the breath sample collection periods, the subject refuses, through some willful act, to follow the instructions to provide an adequate breath sample, the operator may depress the “Start Test” button or the “R” key on the instrument keyboard to terminate the breath testing sequence.” (Emphasis added). And subsection (6)(b) states in relevant part: “Nothing in this subsection precludes an operator from terminating the breath testing sequence as ‘Refused’ if the subject refuses, through a willful act, to follow the instructions of the operator.” (Emphasis added).
Also note Shakerin v. MVD, 101 Or App 357, 359-60 (1990): “MVD concedes that a painful need to urinate might make a refusal involuntary if the officer indicates that the arrested person must refuse in order to use the bathroom immediately.”
Note further that if a language barrier or hearing impairment prevents the client from understanding the “rights and consequences” of which the officer has “informed” him, this may violate due process. Although in State v. Nguyen, 107 Or App 716 (1991), rev den 312 Or 528 (1991), the Court of Appeals found that while an officer must read the rights and consequences to a non-English speaking driver, the driver need not understand the information. And in State v. Weishar, 78 Or App 468, rev den 301 Or 338 (1986), where a hearing impaired driver also submitted and failed a breath test, the issue is similar. But note that in both Nguyen and Weishar, the driver’s subjected themselves to the test, and thus did not suffer the longer suspension lengths of a refusal. A due process violation may be more pronounced if the driver’s status prejudices the result of the procedure. Preserve this issue for appeal.
[xxix] Evidence must be presented which is “of a type commonly relied upon by reasonably prudent persons in the conduct of their serious affairs” (see OAR 137-003-0610(1)), that one of the circumstances in ORS 813.430 existed at the time of the test failure or refusal:
“(1) 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.
(2) Within the five years preceding the date of arrest any of the following occurred:
(a) A suspension of the person’s driving privileges under ORS 813.410 or 482.540 (1981 Replacement Part) became effective.
(b) The person was convicted of:
(A) Driving while under the influence of intoxicants in violation of:
(i) ORS 813.010;
(ii) The statutory counterpart to ORS 813.010 in another jurisdiction; or
(iii) A municipal ordinance in this state or another jurisdiction;
(B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving of a vehicle due to the use of intoxicating liquor, a controlled substance, an inhalant or any combination thereof; or
(C) A driving offense in another jurisdiction that involved operating a vehicle while having a blood alcohol content above that jurisdiction’s permissible blood alcohol content.
(c) 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.
(3) For the purposes of subsection (2)(b) of this section, a conviction for a driving offense in another jurisdiction based solely on a person under 21 years of age having a blood alcohol content that is lower than the permissible blood alcohol content in that jurisdiction for a person 21 years of age or older does not constitute a prior conviction.”
[xxx] ORS 813.410(1).
ORS 813.120: Police report to department. (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 0.04 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.
The original and a copy of the Implied Consent Combined Report must be received by DMV within 10 days of the arrest. See OAR 735-090-0040(1)(a).
Note: A defective ICCR may cause DMV to lose jurisdiction to impose a suspension. See Coulter v. DMV, 168 Or App 442 (2000).
[xxxi] OAR 257-030-0130(3)(i): When the instrument has successfully completed the test sequence, the operator will be afforded an opportunity to enter into and review comments added to the test report. The test report will then be printed with the test result.” (Emphasis added).
[xxxii] ORS 813.160(1): “A chemical analysis is valid under ORS 813.300 if:
(b) …It is an analysis of a person’s breath and… the Department of State Police shall do all of the following: ***
(C) Test and certify the accuracy of equipment to be used by police officers for chemical analyses of a person’s breath before regular use of the equipment and periodically thereafter at intervals of not more than 90 days. Tests and certification required by this subparagraph must be conducted by trained technicians. Certification under this subparagraph does not require a signed document.”
[xxxiii] OAR 735-090-0101:
(1) Except as provided in section (2) of this rule, an in-person hearing will be held either in the county where the alleged offense occurred or at any place within 100 air miles of the place where the offense is alleged to have occurred. There is no location restriction when a hearing is conducted by telephone or other two-way electronic communication device.
(2) If there is a mutual agreement between the petitioning party and DMV, an in-person hearing may be held at a location outside of either the county where the alleged offense occurred or 100 air miles of the place where the offense is alleged to have occurred.
[xxxiv]ORS 813.410(6) states in part: “A suspension under this section is valid if all of the following requirements have been met:
* * *
(f) The person was given written notice required under ORS 813.100.
ORS 813.100(3) states in part: “[T]he police officer shall do all of the following:
* * *
(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. (See Footnote 13 for ORS 813.130 language).,
Coulter v. DMV, 167 Or App 442 (2000), and Basile v. DMV, 167 Or App 335 (2000), regarding officer’s errors in filling out report.
[xxxv]See ORS 813.131 and ORS 813.132.
[xxxvi]Review ORS 813.410.
[xxxvii]ORS 813.410(6) states in part: “A suspension under this section is valid if all of the following requirements have been met:
* * *
(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.
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