809.440
Hearing and administrative review procedures; defenses; rules. (1) When other procedures
described under this section are not applicable to a suspension or revocation
under ORS 809.409 to 809.421, the procedures described in this subsection shall
be applicable. All of the following apply to this subsection:
(a) The hearing
shall be given before the department imposes the suspension or revocation of
driving privileges.
(b) Before the
hearing, the department shall notify the person in the manner described in ORS
809.430.
(c) The hearing
shall be in the county where the person resides unless the person and the
department agree otherwise.
(d) The hearing
shall be conducted by an administrative law judge assigned from the Office of
Administrative Hearings established under ORS 183.605.
(2) The following
apply when administrative review is provided under any statute or rule of the
department:
(a) An
administrative review shall consist of an informal administrative process to
assure prompt and careful review by the department of the documents upon which
an action is based.
(b) It shall be a
defense to the department’s action if a petitioner can establish that:
(A) A conviction
on which the department’s action is based was for an offense that did not
involve a motor vehicle and the department’s action is permitted only if the
offense involves a motor vehicle.
(B) An
out-of-state conviction on which the department’s action is based was for an
offense that is not comparable to an offense under Oregon law.
(C) The records
relied on by the department identify the wrong person.
(c) A person
requesting administrative review has the burden of showing by a preponderance
of the evidence that the person is not subject to the action.
(d) Actions
subject to administrative review shall be exempt from the provisions of ORS
chapter 183 applicable to contested cases, and from the provisions of
subsection (5) of this section applicable to post-imposition hearings. A
suspension, revocation or cancellation may not be stayed during the
administrative review process or by the filing of a petition for judicial
review. A court having jurisdiction may order the suspension, revocation or
cancellation stayed pending judicial review.
(e) Judicial
review of a department order affirming a suspension or revocation after an
administrative review shall be available as for review of orders other than
contested cases, and the department may not be subject to default for failure
to appear in such proceedings. The department shall certify its record to the
court within 20 days after service upon the department of the petition for
judicial review.
(f) If the
suspension or revocation is upheld on review by a court, the suspension or
revocation shall be ordered for the length of time appropriate under the
appropriate statute except that the time shall be reduced by any time prior to
the determination by the court that the suspension or revocation was in effect
and was not stayed.
(g) The
department shall adopt any rules governing administrative review that are
considered necessary or convenient by the department.
(3) At a hearing
for failure to make a future responsibility filing or false certification of
financial responsibility requirements under ORS 809.415, it is a defense to the
department’s action if the petitioner can establish that:
(a) An error was
committed by the department;
(b) The person in
fact was in compliance with financial responsibility requirements on the date
specified by the department by rule under ORS 806.150;
(c) An error was
committed by an insurance company in notifying the department regarding the
correctness of proof of compliance with financial responsibility requirements
provided under ORS 806.150;
(d) The person
was not in compliance with financial responsibility requirements on the date
specified by the department by rule under ORS 806.150, and the department also
determines that the person reasonably and in good faith believed that the
person was in compliance with financial responsibility requirements on the date
the department sent the notice of verification and that the person currently is
in compliance with financial responsibility requirements; or
(e) At the time
of the accident the person reasonably and in good faith believed that the
person was in compliance with financial responsibility requirements, and the
person is currently in compliance with financial responsibility requirements.
(4) When
permitted under this section or under any other statute, a hearing may be
expedited under procedures adopted by the department by rule. The procedures
may include a limited time in which the person may request a hearing,
requirements for telephone hearings, expedited procedures for issuing orders
and expedited notice procedures.
(5) When
permitted under ORS 809.417, 809.419, 809.421 or 809.510 to 809.545, a hearing
may be a post-imposition hearing under this subsection. A post-imposition
hearing is a hearing that occurs after the department imposes the suspension or
revocation of driving privileges. All of the following apply to this
subsection:
(a) The
department must provide notice in the manner described in ORS 809.430 before
the suspension or revocation may take effect.
(b) Except as
provided in this subsection, the hearing shall be conducted as a contested case
in accordance with ORS chapter 183.
(c) 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
person resides or at any place within 100 miles, as established by the
department by rule.
(6) The
department has complied with a requirement for a hearing or administrative
review if the department has provided an opportunity for hearing or review and
the person with the right to the hearing or review has not requested it. Any
request for hearing or review must be made in writing.
(7) For any
hearing described under this section, and for administrative review described
under this section, no further notice need be given by the department if the
suspension or revocation is based upon a conviction and the court gives notice,
in a form established by the department, of the rights to a hearing or review
and of the suspension or revocation. [1985 c.669 §4 (enacted in lieu of 1983
c.338 §§356,357); 1987 c.437 §1; 1989 c.636 §37; 1991 c.702 §3; 1997 c.249 §225;
1999 c.770 §6; 1999 c.849 §§190,191; 2003 c.75 §66; 2003 c.402 §§29,30; 2011
c.355 §16; 2013 c.237 §22; 2021 c.630 §83]
Notes of Decisions
Cited in
14
cases, 1986–2015 · leading case:
State v. Olmstead, 800 P.2d 277 (Or. 1990).
State v. Olmstead, 800 P.2d 277 (Or. 1990).
· cites it 4× “A suspension under this subsection is subject to a post-imposition hearing under ORS 809.440 and shall continue until such time as the person establishes eligibility under ORS 807.”
State v. Jones, 195 P.3d 78 (Or. Ct. App. 2008).
· cites it 5× “5 Although other provisions of the motor vehicle code were amended by the 2001 legislature and some of those amendments went into effect immediately, ORS 809.440 was not amended by the 2001 legislature.”
Smith v. Driver & Motor Veh. Servs. Branch, 917 P.2d 28 (Or. Ct. App. 1996).
· cites it 14× “ORS 809.440. If a conviction is the basis for the suspension, the person may seek administrative review, which “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
State v. Orueta, 164 P.3d 267 (Or. 2007).
· cites it 2× “430 (requiring notice); ORS 809.440 (providing for hearings). DMV did not seek to cancel defendant's license, and defendant had a commercial driver's license when he drove under the influence.”
Dyrdahl v. Dep't of Transp., 131 P.3d 770 (Or. Ct. App. 2006).
· cites it 2× “Indeed, DMV was required to make that inquiry in petitioner’s administrative hearing under ORS 809.440(2)(b)(B). DMV found that the Arizona and Oregon offenses were comparable.”
State v. Atkinson, 751 P.2d 784 (Or. 1988).
· cites it 2× “Before the new section came into effect, Oregon Laws 1983, Chapter 338, section 356, was repealed by Oregon Laws 1985, Chapter 669, section 3, and a replacement was enacted by Oregon Laws 1985, Chapter 669, section 4.”
Richardson v. Oregon Dep't of Transp., 292 P.3d 557 (Or. Ct. App. 2012).
· cites it 33× “415(4) is entitled to administrative review under ORS 809.440. ORS 809.415(4)(b). That review “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
Endres v. Driver & Motor Veh. Servs. Div., 297 P.3d 505 (Or. Ct. App. 2013).
“ORS 809.440(l)(d) (2009), amended by, Or Laws 2011, ch 355, § 16, provides that, in a hearing held on a proposed license suspension or revocation, DMV, “good cause appearing therefore, may impose, continue, *232 modify or extend the suspension or revocation of the driving…”
Revocation of the Driving Privileges of McNutt v. Driver & Motor Veh. Servs. Div., 31 P.3d 1087 (Or. Ct. App. 2001).
· cites it 2× “In support of that argument, DMV cites ORS 809.440(2)(f), which provides: “If the suspension or revocation [of driving privileges] is upheld on review by a court, the suspension or revocation shall be imposed for the length of time appropriate under the appropriate statute…”
State v. James, 717 P.2d 214 (Or. Ct. App. 1986).
“…Or Laws 1985, ch 669, § 4 (enacted in lieu of Or Laws 1983, ch 338, §§ 356, 357, see Or Laws 1985, ch 669, § 3) (now ORS 809.440), and Or Laws 1983, ch 338, § 353(8), as amended by Or Laws 1985, ch 16, § 166(8); ch 393, § 10a(8); ch 669, § 2a(8) (now ORS 813.400), effective…”
Slaight v. Driver & Motor Veh. Servs. Div., 225 P.3d 100 (Or. Ct. App. 2009).
· cites it 3× “However, she argued that her prompt decision not to use the license that she had obtained in her sister’s name and to destroy it, coupled with the fact that she would lose her job if her license were suspended, constituted good cause under ORS 809.440(l)(d) for DMV to decide to…”
— Or. Rev. Stat. § 809.440(2) — 2 cases
State v. Jones, 195 P.3d 78 (Or. Ct. App. 2008).
“5 Although other provisions of the motor vehicle code were amended by the 2001 legislature and some of those amendments went into effect immediately, ORS 809.440 was not amended by the 2001 legislature.”
Richardson v. Oregon Dep't of Transp., 292 P.3d 557 (Or. Ct. App. 2012).
“415(4) is entitled to administrative review under ORS 809.440. ORS 809.415(4)(b). That review “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(a) — 2 cases
Smith v. Driver & Motor Veh. Servs. Branch, 917 P.2d 28 (Or. Ct. App. 1996).
“ORS 809.440. If a conviction is the basis for the suspension, the person may seek administrative review, which “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
Richardson v. Oregon Dep't of Transp., 292 P.3d 557 (Or. Ct. App. 2012).
“415(4) is entitled to administrative review under ORS 809.440. ORS 809.415(4)(b). That review “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(b) — 2 cases
State v. Jones, 195 P.3d 78 (Or. Ct. App. 2008).
“5 Although other provisions of the motor vehicle code were amended by the 2001 legislature and some of those amendments went into effect immediately, ORS 809.440 was not amended by the 2001 legislature.”
Richardson v. Oregon Dep't of Transp., 292 P.3d 557 (Or. Ct. App. 2012).
“415(4) is entitled to administrative review under ORS 809.440. ORS 809.415(4)(b). That review “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(b)(A) — 1 case
Smith v. Driver & Motor Veh. Servs. Branch, 917 P.2d 28 (Or. Ct. App. 1996).
“ORS 809.440. If a conviction is the basis for the suspension, the person may seek administrative review, which “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(b)(B) — 2 cases
Dyrdahl v. Dep't of Transp., 131 P.3d 770 (Or. Ct. App. 2006).
“Indeed, DMV was required to make that inquiry in petitioner’s administrative hearing under ORS 809.440(2)(b)(B). DMV found that the Arizona and Oregon offenses were comparable.”
Smith v. Driver & Motor Veh. Servs. Branch, 917 P.2d 28 (Or. Ct. App. 1996).
“ORS 809.440. If a conviction is the basis for the suspension, the person may seek administrative review, which “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(b)(C) — 1 case
Smith v. Driver & Motor Veh. Servs. Branch, 917 P.2d 28 (Or. Ct. App. 1996).
“ORS 809.440. If a conviction is the basis for the suspension, the person may seek administrative review, which “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(c) — 1 case
Richardson v. Oregon Dep't of Transp., 292 P.3d 557 (Or. Ct. App. 2012).
“415(4) is entitled to administrative review under ORS 809.440. ORS 809.415(4)(b). That review “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(d) — 2 cases
State v. Jones, 195 P.3d 78 (Or. Ct. App. 2008).
“5 Although other provisions of the motor vehicle code were amended by the 2001 legislature and some of those amendments went into effect immediately, ORS 809.440 was not amended by the 2001 legislature.”
Richardson v. Oregon Dep't of Transp., 292 P.3d 557 (Or. Ct. App. 2012).
“415(4) is entitled to administrative review under ORS 809.440. ORS 809.415(4)(b). That review “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(e) — 1 case
Richardson v. Oregon Dep't of Transp., 292 P.3d 557 (Or. Ct. App. 2012).
“415(4) is entitled to administrative review under ORS 809.440. ORS 809.415(4)(b). That review “shall consist of an informal administrative process to assure prompt and careful review by the department of the documents upon which an action is based.”
— Or. Rev. Stat. § 809.440(2)(f) — 1 case
— Or. Rev. Stat. § 809.440(4)(a) — 1 case
State v. Jones, 195 P.3d 78 (Or. Ct. App. 2008).
“5 Although other provisions of the motor vehicle code were amended by the 2001 legislature and some of those amendments went into effect immediately, ORS 809.440 was not amended by the 2001 legislature.”
— Or. Rev. Stat. § 809.440(l)(d) — 2 cases
Endres v. Driver & Motor Veh. Servs. Div., 297 P.3d 505 (Or. Ct. App. 2013).
“ORS 809.440(l)(d) (2009), amended by, Or Laws 2011, ch 355, § 16, provides that, in a hearing held on a proposed license suspension or revocation, DMV, “good cause appearing therefore, may impose, continue, *232 modify or extend the suspension or revocation of the driving…”
Slaight v. Driver & Motor Veh. Servs. Div., 225 P.3d 100 (Or. Ct. App. 2009).
“However, she argued that her prompt decision not to use the license that she had obtained in her sister’s name and to destroy it, coupled with the fact that she would lose her job if her license were suspended, constituted good cause under ORS 809.440(l)(d) for DMV to decide to…”
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