Current through Register Vol. 63, No. 3, March 1, 2024
As 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(7);
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(4);
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(4).
(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(7).
(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.
Statutory/Other Authority: ORS
184.619,
802.010,
813.410 & 813.440
Statutes/Other Implemented: ORS
813.410 &
813.440