Oregon Statute | Act | Code |Title 59 Oregon Vehicle Code| US Code - US Statute | Chapter 813 Driving Under The Influence Of Intoxicants

(1) A
person commits the offense of driving while under the influence of
intoxicants if the person drives a vehicle while the person:

(a) Has 0.08 percent or more by weight of alcohol in the blood of
the person as shown by chemical analysis of the breath or blood of the
person made under ORS 813.100, 813.140 or 813.150;

(b) Is under the influence of intoxicating liquor, a controlled
substance or an inhalant; or

(c) Is under the influence of any combination of intoxicating
liquor, an inhalant and a controlled substance.

(2) A person may not be convicted of driving while under the
influence of intoxicants on the basis of being under the influence of a
controlled substance or an inhalant unless the fact that the person was
under the influence of a controlled substance or an inhalant is pleaded
in the accusatory instrument and is either proved at trial or is admitted
by the person through a guilty plea.

(3) A person convicted of the offense described in this section is
subject to ORS 813.020 in addition to this section.

(4) Except as provided in subsection (5) of this section, the
offense described in this section, driving while under the influence of
intoxicants, is a Class A misdemeanor and is applicable upon any premises
open to the public.

(5) Driving while under the influence of intoxicants is a Class C
felony if the defendant has been convicted of driving while under the
influence of intoxicants in violation of this section or its statutory
counterpart in another jurisdiction at least three times in the 10 years
prior to the date of the current offense and the current offense was
committed in a motor vehicle. For purposes of this subsection, a prior
conviction for boating while under the influence of intoxicants in
violation of ORS 830.325 or its statutory counterpart in another
jurisdiction, or for prohibited operation of an aircraft in violation of
ORS 837.080 (1)(a) or its statutory counterpart in another jurisdiction,
shall be considered a prior conviction of driving while under the
influence of intoxicants.

(6) In addition to any other sentence that may be imposed, the
court shall impose a fine on a person convicted of driving while under
the influence of intoxicants as follows:

(a) For a person’s first conviction, a minimum of $1,000.

(b) For a person’s second conviction, a minimum of $1,500.

(c) For a person’s third or subsequent conviction, a minimum of
$2,000 if the person is not sentenced to a term of imprisonment.

(7) Notwithstanding ORS 161.635, $10,000 is the maximum fine that a
court may impose on a person convicted of driving while under the
influence of intoxicants if:

(a) The current offense was committed in a motor vehicle; and

(b) There was a passenger in the motor vehicle who was under 18
years of age and was at least three years younger than the person driving
the motor vehicle. [1983 c.338 §587; 1985 c.16 §293; 1987 c.138 §5; 1991
c.835 §7; 1999 c.619 §3; 1999 c.1049 §1; 2003 c.14 §495; 2003 c.445 §1](1) The Oregon Criminal Justice Commission
shall classify a violation of ORS 813.010 that is a felony as crime
category 6 of the rules of the Oregon Criminal Justice Commission.

(2) In determining criminal history for a person convicted of a
felony that has operation of a motor vehicle as an element, or of a
felony that involved death, injury or property damage caused by the use
of a motor vehicle, the commission shall:

(a) Consider two prior convictions of misdemeanor driving while
under the influence of intoxicants to be equivalent to one conviction of
felony driving while under the influence of intoxicants; and

(b) Consider felony driving while under the influence of
intoxicants to be a person felony and consider misdemeanor driving while
under the influence of intoxicants to be a person Class A misdemeanor.
[1999 c.1049 §3]When a person is convicted of driving
while under the influence of intoxicants in violation of ORS 813.010, a
court shall comply with the following in addition to any fine or other
penalty imposed upon the person under ORS 813.010:

(1) The court shall require the person to:

(a) Pay to the court the fee described under ORS 813.030 in
addition to any fine imposed under ORS 813.010; and

(b) Complete a screening interview and a treatment program as
provided in ORS 813.021.

(2) The court must impose and not suspend execution of a sentence
requiring the person either to serve at least 48 hours’ imprisonment,
which shall be served consecutively unless justice requires otherwise, or
to perform community service for times specified by the court under ORS
137.129. For purposes of this subsection:

(a) A court may provide for the imprisonment to be served in jail,
minimum security facilities or inpatient rehabilitation or treatment
centers.

(b) Whenever the judge provides for the mandatory imprisonment to
be served other than consecutively, the judgment must specifically so
provide and the judge must state the reasons in writing.

(3) In a county that has a victim impact program a court may
require the person to attend a victim impact treatment session. If the
court requires attendance under this section, the court may require the
defendant to pay a reasonable fee to the victim impact program to offset
the cost of the defendant’s participation. The fee shall be established
for each county by the victim impact panel coordinator and steering
committee of that county and shall be not less than $5 or more than $50.
[1983 c.338 §588; 1985 c.16 §294 and former 487.549; 1989 c.576 §5; 1991
c.557 §3; 1993 c.13 §4; 1993 c.468 §1; 1999 c.126 §1; 2003 c.14 §496]
(1) When a court, in accordance with ORS 813.020, requires a person to
complete a screening interview and a treatment program, the court shall
require the person to do all of the following:

(a) Complete a screening interview for the purpose of determining
appropriate placement of the person in a program for treatment for
alcoholism, drug dependency or dependency on inhalants.

(b) Pay directly to the agency or organization conducting the
screening interview a fee of $150.

(c) Complete the treatment program to which the person is referred.

(d) Pay for the treatment program to which the person is referred.

(2) The screening interview required by this section shall be
conducted by an agency or organization designated by the court. The
designated agency or organization must meet the standards set by the
Director of Human Services to conduct the screening interviews. Wherever
possible a court shall designate agencies or organizations to perform the
screening interview that are separate from those that may be designated
to carry out a treatment program.

(3) An agency or organization doing a screening interview under
this section may not refer a person to a treatment program that has not
been approved by the Director of Human Services.

(4) The agency or organization conducting a screening interview
under this section shall monitor the progress of the person referred to
the agency or organization. The agency or organization shall make a
report to the referring court stating the person’s successful completion
or failure to complete all or any part of the screening interview or of
the treatment program to which the person was referred by the agency or
organization. The report shall be in a form determined by agreement
between the court and the agency or organization. [1999 c.126 §3; 1999
c.619 §8a; 2005 c.303 §1]Note: 813.021 was added to and made a part of the Oregon Vehicle
Code by legislative action but was not added to ORS chapter 813 or any
smaller series therein. See Preface to Oregon Revised Statutes for
further explanation.A court may designate a
single agency or organization to perform the screening interviews and
treatment programs described in ORS 813.021, or the diagnostic assessment
and treatment described in ORS 813.260 (1) when the Director of Human
Services certifies that:

(1) An agency or organization may accept such designations due to
the lack of alternative agencies or organizations in the service area; or

(2) An agency or organization has applied to and been authorized by
the Director of Human Services to operate a demonstration project that
combines screening interviews and treatment programs or diagnostic
assessment and treatment. The Director of Human Services shall by rule
set forth the conditions under which a demonstration project may be
authorized. [1991 c.557 §2; 1999 c.126 §4] The fee required by ORS
471.432 and 813.020 (1) shall be in the amount of $130, except that the
court may waive all or part of the fee in cases involving indigent
defendants. The court may make provision for payment of the fee on an
installment basis. The fee shall be ordered paid as follows:

(1) $105 to be credited and distributed under ORS 137.295 as an
obligation payable to the state; and

(2) $25 to be paid to the Director of Human Services for deposit in
the Intoxicated Driver Program Fund created by ORS 813.270. [1985 c.16
§296; 1987 c.905 §29; 1989 c.576 §§6a,7a; 1989 c.635 §§1,3; 1991 c.557
§4; 1993 c.13 §5; 1999 c.646 §3]This section establishes,
for purposes of ORS 471.432, 807.060 and 813.500, when a person has a
problem condition involving alcohol, inhalants or controlled substances.
For purposes of ORS 471.432, 807.060 and 813.500, a person has a problem
condition involving alcohol, inhalants or controlled substances if it is
determined that the person has a problem condition in which the person’s
health or that of others is substantially impaired or endangered or the
person’s social or economic function is substantially disrupted because
of the person’s:

(1) Habitual or periodic use of alcoholic beverages; or

(2) Use of or loss of the ability to control the use of controlled
substances, inhalants or other substances with abuse potential including
a condition that may have developed:

(a) A physical dependence in which the body requires a continuing
supply of a drug, inhalant or controlled substance to avoid
characteristic withdrawal symptoms; or

(b) A psychological dependence characterized by an overwhelming
mental desire for continued use of a drug, inhalant or controlled
substance. [1983 c.338 §589; 1999 c.126 §5; 1999 c.619 §9; 1999 c.646 §4](1) A police officer or a
person authorized by the Department of Transportation to perform vehicle
safety inspections shall issue an out-of-service order to the operator of
a commercial motor vehicle if any of the following applies:

(a) The person has reasonable grounds to believe that the operator
has consumed alcohol or other intoxicating beverage within four hours
prior to the time the operator began operating the vehicle or at any time
while operating the vehicle. As used in this paragraph, “reasonable
grounds” includes, but is not limited to, smelling alcohol on the breath
or person of the operator.

(b) A chemical test of the operator’s breath discloses any amount
of alcohol in the blood of the operator.

(c) The operator possesses an intoxicating beverage while operating
the vehicle. This subsection does not apply to possession of an
intoxicating beverage that is manifested and transported as part of a
shipment.

(2) An out-of-service order issued under this section shall become
effective upon its issuance and shall remain in effect for 24 hours.

(3) The Department of Transportation shall adopt rules requiring
that any driver issued an out-of-service order under this section be
required to report the order to the department and to the driver’s
employer. Rules adopted under this section may include, but need not be
limited to, rules specifying the times within which reports must be made
and the contents of the reports.

(4) Violation of an out-of-service order issued under this section
is a Class A misdemeanor. [1991 c.185 §14; 1993 c.400 §1](1) When the Department of Transportation receives notice that a
person has violated an out-of-service order issued under ORS 813.050 or
has knowingly violated any other out-of-service order or notice, in
addition to suspension of driving privileges imposed under ORS 809.413,
the department shall impose a civil penalty of not less than $1,000 or
more than $2,000 on the operator of the commercial motor vehicle.

(2) For purposes of this section, “notice” includes, but is not
necessarily limited to, a record of conviction and a record of a
determination by a state or federal agency with jurisdiction to make such
determinations that the person has violated an out-of-service order or
notice.

(3) Civil penalties under this section shall be imposed in the
manner provided in ORS 183.745. [1993 c.400 §4; 2003 c.402 §39]Note: 813.052 was added to and made a part of the Oregon Vehicle
Code by legislative action but was not added to ORS chapter 813 or any
smaller series therein. See Preface to Oregon Revised Statutes for
further explanation.IMPLIED CONSENT(Breath or Blood Test) (1) A
person commits the offense of refusal to take a breath test if the person
refuses to take a breath test when requested to do so in accordance with
the provisions of ORS 813.100.

(2) The offense described in this section, refusal to take a breath
test, is a traffic offense punishable by a fine of at least $500 and not
more than $1,000. The fine described in this section is in addition to
any other consequence prescribed by law for refusal to take a breath
test. [2003 c.814 §2](1) Any person who operates a
motor vehicle upon premises open to the public or the highways of this
state shall be deemed to have given consent, subject to the implied
consent law, to a chemical test of the person’s breath, or of the
person’s blood if the person is receiving medical care in a health care
facility immediately after a motor vehicle accident, for the purpose of
determining the alcoholic content of the person’s blood if the person is
arrested for driving a motor vehicle while under the influence of
intoxicants in violation of ORS 813.010 or of a municipal ordinance. A
test shall be administered upon the request of a police officer having
reasonable grounds to believe the person arrested to have been driving
while under the influence of intoxicants in violation of ORS 813.010 or
of a municipal ordinance. 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.

(2) No chemical test of the person’s breath or blood shall be
given, under subsection (1) of this section, to a person under arrest for
driving a motor vehicle while under the influence of intoxicants in
violation of ORS 813.010 or of a municipal ordinance, if the person
refuses the request of a police officer to submit to the chemical test
after the person has been informed of consequences and rights as
described under ORS 813.130.

(3) If a person refuses to take a test under this section or if a
breath test under this section discloses that the person, at the time of
the test, had a level of alcohol in the person’s blood that constitutes
being under the influence of intoxicating liquor under ORS 813.300, the
person’s driving privileges are subject to suspension under ORS 813.410
and the police officer shall do all of the following:

(a) Immediately take custody of any driver license or permit issued
by this state to the person to grant driving privileges.

(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.

(c) If the person qualifies under ORS 813.110, issue to the person,
on behalf of the department, a temporary driving permit described under
ORS 813.110.

(d) Within a period of time required by the department by rule,
report action taken under this section to the department and prepare and
cause to be delivered to the department a report as described in ORS
813.120, along with the confiscated license or permit and a copy of the
notice of intent to suspend.

(4) If a blood test under this section discloses that the person,
at the time of the test, had a level of alcohol in the person’s blood
that constitutes being under the influence of intoxicating liquor under
ORS 813.300, the person’s driving privileges are subject to suspension
under ORS 813.410 and the police officer shall report to the department
within 45 days of the date of arrest that the person failed the blood
test. [1983 c.338 §591; 1985 c.16 §298; 1985 c.672 §19; 1993 c.305 §1;
1995 c.568 §1](1) Except as
otherwise provided by this section, police officers, on behalf of the
Department of Transportation, shall issue temporary driving permits
described under this section to persons when required under ORS 813.100.

(2) The department shall provide police departments and agencies
with permits for issuance as required by this section. The department
shall establish the form and content of permits described in this section
as the department determines appropriate, but in a manner consistent with
this section.

(3) A permit described in this section is subject to all the
following:

(a) Except as provided in paragraph (b) of this subsection, the
permit is valid until the 30th day after the date of arrest.

(b) During the 12-hour period following issuance of the permit, the
person is subject to ORS 807.570, and the permit is not a defense to a
charge under ORS 807.570.

(c) The permit shall be issued without payment of any fee.

(d) The permit grants the same driving privileges as those granted
by the person’s license taken into possession under ORS 813.100.

(4) A police officer shall not issue a permit under this section if:

(a) Driving privileges of the person were suspended, revoked or
canceled at the time the person was arrested;

(b) The person whose license was taken into custody was operating
on an invalid license;

(c) The person was not entitled to driving privileges at the time
of the arrest for any other reason; or

(d) The person holds a license or permit granting driving
privileges that was issued by another state or jurisdiction and that is
not taken into custody under ORS 813.100. [1985 c.16 §142; 1985 c.672 §17] (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. [1983 c.338 §405;
1985 c.16 §215; 1985 c.672 §20; 1989 c.636 §42; 1993 c.305 §3; 1993 c.751
§70; 1995 c.568 §3]
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 will
not be eligible for a hardship permit for at least 90 days, and possibly
for one year, depending on the person’s driving record. 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.

(f) If the person refuses a breath test under ORS 813.100, 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) The following times:

(A) If the person is issued a temporary driving permit under ORS
813.100, the number of hours before the driving permit will be effective
and the number of days the permit will be effective.

(B) The number of days within which a person must request a hearing
under ORS 813.410.

(C) The number of days within which a hearing under ORS 813.410
will be held.

(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. [1985 c.672 §22; 1987
c.673 §3; 1987 c.801 §11; 1989 c.171 §92; 1989 c.636 §43; 1991 c.185 §15;
1991 c.860 §10; 1993 c.305 §4; 1995 c.568 §4; 2003 c.814 §3; 2005 c.649
§28](Urine Test)(1) Any person who operates a motor vehicle upon premises open
to the public or the highways of this state shall be deemed to have given
consent, subject to the Motorist Implied Consent Law, to a chemical test
of the person’s urine for the purpose of determining the presence of a
controlled substance or an inhalant in the person’s body if the person is
arrested for driving while under the influence of intoxicants in
violation of ORS 813.010 or of a municipal ordinance and either:

(a) The person takes the breath test described in ORS 813.100 and
the test discloses a blood alcohol content of less than 0.08 percent; or

(b) The person is involved in an accident resulting in injury or
property damage. A urine test may be requested under this paragraph
regardless of whether a breath test has been requested and regardless of
the results of a breath test, if one is taken.

(2) A police officer may not request a urine test unless the
officer is certified by the Board on Public Safety Standards and Training
as having completed at least eight hours of training in recognition of
drug impaired driving and the officer has a reasonable suspicion that the
person arrested has been driving while under the influence of a
controlled substance, an inhalant or any combination of an inhalant, a
controlled substance and intoxicating liquor.

(3) A person asked to give a urine sample shall be given privacy
and may not be observed by a police officer when producing the sample.

(4) A chemical analysis of a person’s urine under this section
shall be performed in an accredited or licensed toxicology laboratory.
[1995 c.676 §1; 1999 c.619 §10; 1999 c.752 §1] (1)
Except as otherwise provided in this section, a refusal to take a urine
test requested under ORS 813.131 shall be treated for all purposes as a
refusal to take a breath test. A suspension imposed for refusal to take a
urine test shall be consecutive to any other suspension imposed under the
Motorist Implied Consent Law. If a person is subject to consecutive
suspensions, the length of time that must elapse before the Department of
Transportation may reinstate driving privileges or issue a hardship
permit under ORS 813.520 shall be doubled.

(2) Before any test of urine may be administered under ORS 813.131,
in addition to information described in ORS 813.130, the person asked to
take the test shall be informed that if the person refuses the test, the
person’s driving privileges will be suspended for the same time period
and with the same consequences as if the person had refused the breath
test and that a suspension for refusal of the urine test will be
consecutive to any other suspension under the Motorist Implied Consent
Law.

(3) Notwithstanding subsection (1) of this section, no suspension
of driving privileges shall be imposed for refusal to provide a urine
sample if the person provides documentation from a physician licensed by
this state showing that the person has a medical condition that makes it
impossible for the person to provide a sample. [1995 c.676 §2; 1997 c.25
§3](Field Sobriety Tests) Any person who
operates a vehicle upon premises open to the public or the highways of
the state shall be deemed to have given consent to submit to field
sobriety tests upon the request of a police officer for the purpose of
determining if the person is under the influence of intoxicants if the
police officer reasonably suspects that the person has committed the
offense of driving while under the influence of intoxicants in violation
of ORS 813.010 or a municipal ordinance. Before the tests are
administered, the person requested to take the tests shall be informed of
the consequences of refusing to take or failing to submit to the tests
under ORS 813.136. [1989 c.576 §15]If a person refuses or fails to submit to field sobriety
tests as required by ORS 813.135, evidence of the person’s refusal or
failure to submit is admissible in any criminal or civil action or
proceeding arising out of allegations that the person was driving while
under the influence of intoxicants. [1989 c.576 §14]CHEMICAL TESTS; METHODS AND REQUIREMENTS Nothing in
ORS 813.100 is intended to preclude the administration of a chemical test
described in this section. A police officer may obtain a chemical test of
the blood to determine the amount of alcohol in any person’s blood or a
test of the person’s blood or urine, or both, to determine the presence
of a controlled substance or an inhalant in the person as provided in the
following:

(1) If, when requested by a police officer, the person expressly
consents to such a test.

(2) Notwithstanding subsection (1) of this section, from a person
without the person’s consent if:

(a) The police officer has probable cause to believe that the
person was driving while under the influence of intoxicants and that
evidence of the offense will be found in the person’s blood or urine; and

(b) The person is unconscious or otherwise in a condition rendering
the person incapable of expressly consenting to the test or tests
requested. [1983 c.338 §593; 1985 c.16 §299; 1999 c.619 §11] In addition to
a chemical test of the breath, blood or urine administered under ORS
813.100 or 813.140, upon the request of a police officer, a person shall
be permitted upon request, at the person’s own expense, reasonable
opportunity to have any licensed physician and surgeon, licensed
professional nurse or qualified technician, chemist or other qualified
person of the person’s own choosing administer a chemical test or tests
of the person’s breath or blood for the purpose of determining the
alcoholic content of the person’s blood or a chemical test or tests of
the person’s blood or urine, or both, for the purpose of determining the
presence of a controlled substance or an inhalant in the person. The
failure or inability to obtain such a test or tests by a person shall not
preclude the admission of evidence relating to a test or tests taken upon
the request of a police officer. [1983 c.338 §594; 1985 c.16 §300; 1999
c.619 §12](1) A chemical analysis is
valid under ORS 813.300 if:

(a) It is an analysis of a person’s blood for alcohol content and
is performed in:

(A) A laboratory certified or accredited under 42 C.F.R. part 493
and approved for toxicology testing;

(B) A laboratory licensed under ORS 438.110 and approved for
toxicology testing; or

(C) A forensic laboratory established by the Department of State
Police under ORS 181.080 that is accredited by a national forensic
accrediting organization.

(b) 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. For purposes of this
paragraph, the Department of State Police shall do all of the following:

(A) Approve methods of performing chemical analyses of a person’s
breath.

(B) Prepare manuals and conduct courses throughout the state for
the training of police officers in chemical analyses of a person’s
breath, which courses shall include, but are not limited to, approved
methods of chemical analyses, use of approved equipment and
interpretation of test results together with a written examination on
these subjects.

(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.

(D) Ascertain the qualifications and competence of individuals to
conduct chemical analyses in accordance with one or more methods approved
by the department.

(E) Issue permits to individuals according to their qualifications.
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.

(2) In conducting a chemical test of the blood, only a duly
licensed physician or a person acting under the direction or control of a
duly licensed physician may withdraw blood or pierce human tissue. A
licensed physician, or a qualified person acting under the direction or
control of a duly licensed physician, is not civilly liable for
withdrawing any bodily substance, in a medically acceptable manner, at
the request of a peace officer.

(3) An individual who performs a chemical analysis of breath or
blood under ORS 813.100 or 813.140 shall prepare and sign a written
report of the findings of the test that must include the identification
of the police officer upon whose request the test was administered.

(4) Any individual having custody of the report mentioned in
subsection (3) of this section shall, upon request of the person tested,
furnish that person or that person’s attorney, a copy of the report.

(5) The expense of conducting a chemical test as provided by ORS
813.100 or 813.140 must be paid by the governmental unit on whose
equipment the test is conducted or by the governmental unit upon whose
request the test was administered if no governmental unit’s equipment is
used to conduct the test. [1983 c.338 §173; 1985 c.16 §57; 1985 c.337 §2;
1995 c.351 §1; 2003 c.19 §1]PLEA AGREEMENT(1) Notwithstanding ORS 135.405
to 135.445, a person charged with the offense of driving under the
influence of intoxicants shall not be allowed to plead “guilty” or “no
contest” to any other offense in exchange for a dismissal of the offense
charged. No district attorney or city attorney shall make any motion and
no judge shall enter any order in derogation of this section. This
section does not prohibit diversion as provided under ORS 813.200.

(2) Notwithstanding ORS 135.881 to 135.901, a person charged with
the offense of driving under the influence of intoxicants shall not be
allowed to enter into any program of supervised performance or diversion
except as provided under ORS 813.200. [1983 c.338 §382; 1999 c.1051 §294]DIVERSION(1) The court shall inform at arraignment a defendant charged
with the offense of driving while under the influence of intoxicants as
defined in ORS 813.010 or a city ordinance conforming thereto that a
diversion agreement may be available if the defendant meets the criteria
set out in ORS 813.215 and files with the court a petition for a driving
while under the influence of intoxicants diversion agreement.

(2) The petition forms for a driving while under the influence of
intoxicants diversion agreement shall be available to a defendant at the
court.

(3) The form of the petition for a driving while under the
influence of intoxicants diversion agreement and the information and
blanks contained therein shall be determined by the Supreme Court under
ORS 1.525. The petition forms made available to a defendant by any city
or state court shall conform to the requirements adopted by the Supreme
Court.

(4) In addition to any other information required by the Supreme
Court to be contained in a petition for a driving while under the
influence of intoxicants diversion agreement, the petition shall include:

(a) A plea of guilty or no contest to the charge of driving while
under the influence of intoxicants signed by the defendant;

(b) An agreement by the defendant to complete at an agency or
organization designated by the city or state court a diagnostic
assessment to determine the possible existence and degree of an alcohol
or drug abuse problem;

(c) An agreement by the defendant to complete, at defendant’s own
expense based on defendant’s ability to pay, the program of treatment
indicated as necessary by the diagnostic assessment;

(d) An agreement by the defendant to not use intoxicants in
conjunction with the defendant’s operation of a motor vehicle and to
comply fully with the laws of this state designed to discourage the use
of intoxicants in conjunction with motor vehicle operation;

(e) A notice to the defendant that the diversion agreement will be
considered to be violated if the court receives notice that the defendant
at any time during the diversion period committed the offense of driving
while under the influence of intoxicants or committed a violation of ORS
811.170;

(f) An agreement by the defendant to keep the court advised of the
defendant’s current mailing address at all times during the diversion
period;

(g) A waiver by the defendant of any former jeopardy rights under
the federal and state constitutions and ORS 131.505 to 131.525 in any
subsequent action upon the charge or any other offenses based upon the
same criminal episode;

(h) A sworn statement, as defined in ORS 162.055, by the defendant
certifying that the defendant meets the criteria set out in ORS 813.215
to be eligible to enter into the driving while under the influence of
intoxicants diversion agreement; and

(i) An agreement by the defendant to pay court-appointed attorney
fees as determined by the court. [1983 c.338 §369; 1985 c.16 §191; 1987
c.441 §4; 2003 c.816 §1]Note: Section 6 (1), chapter 816, Oregon Laws 2003, provides:

Sec. 6. (1) The amendments to ORS 813.200, 813.210, 813.225,
813.230 and 813.255 by sections 1 to 5 of this 2003 Act, apply only to
petitions for driving while under the influence of intoxicants diversion
agreements filed on and after the effective date of this 2003 Act
[January 1, 2004]. [2003 c.816 §6(1)](1) After an accusatory instrument has been filed
charging the defendant with the offense of driving while under the
influence of intoxicants, a defendant may file with the court a petition
for a driving while under the influence of intoxicants diversion
agreement described in ORS 813.200. The petition:

(a) Must be filed within 30 days after the date of the defendant’s
first appearance on the summons, unless a later filing date is allowed by
the court upon a showing of good cause. For purposes of this paragraph,
the filing of a demurrer, a motion to suppress or a motion for an omnibus
hearing does not constitute good cause.

(b) Notwithstanding paragraph (a) of this subsection, may not be
filed after entry of a guilty plea or a no contest plea or after
commencement of any trial on the charge whether or not a new trial or
retrial is ordered for any reason.

(2) The defendant shall pay to the court, at the time of filing a
petition for a driving while under the influence of intoxicants diversion
agreement, a filing fee established under ORS 813.240. The court may make
provision for payment of the filing fee by the defendant on an
installment basis. The court may waive all or part of the filing fee in
cases involving indigent defendants. The filing fee paid to the court
under this subsection shall be retained by the court if the petition is
allowed. The filing fee shall be distributed as provided by ORS 813.240.

(3) The defendant shall pay to the agency or organization providing
the diagnostic assessment, at the time the petition is allowed, the fee
required by ORS 813.240 (2).

(4)(a) Unless otherwise provided under paragraph (b) of this
subsection, the defendant shall pay to the court any court-appointed
attorney fees agreed to under ORS 813.200 (4)(i). Payments shall be made
prior to the end of the diversion period on a schedule determined by the
court.

(b) The court may waive all or part of the court-appointed attorney
fees agreed to under ORS 813.200 (4)(i).

(5) The defendant shall cause a copy of the petition for a driving
while under the influence of intoxicants diversion agreement to be served
upon the district attorney or city attorney. The district attorney or
city attorney may file with the court, within 15 days after the date of
service, a written objection to the petition and a request for a hearing.
[1983 c.338 §370; 1985 c.16 §192; 1987 c.441 §5; 1987 c.534 §1; 1993 c.13
§6; 2003 c.816 §2]Note: See note under 813.200. A defendant is eligible for
diversion if:

(1) The defendant had no charge of an offense of driving while
under the influence of intoxicants or its statutory counterpart in any
jurisdiction, other than the charge for the present offense, pending on
the date the defendant filed the petition for a driving while under the
influence of intoxicants diversion agreement;

(2) The defendant has not been convicted of an offense described in
subsection (1) of this section within the period beginning 10 years
before the date of the commission of the present offense and ending on
the date the defendant filed the petition for a driving while under the
influence of intoxicants diversion agreement;

(3) The defendant was not participating in a driving while under
the influence of intoxicants diversion program or in any similar alcohol
or drug rehabilitation program, other than a program entered into as a
result of the charge for the present offense, in this state or in any
other jurisdiction on the date the defendant filed the petition for a
driving while under the influence of intoxicants diversion agreement;

(4) The defendant did not participate in a diversion or
rehabilitation program described in subsection (3) of this section, other
than a program entered into as a result of the charge for the present
offense, within the period beginning 10 years before the date of the
commission of the present offense and ending on the date the defendant
filed the petition for a driving while under the influence of intoxicants
diversion agreement;

(5) The defendant had no charge of an offense of murder,
manslaughter, criminally negligent homicide or assault that resulted from
the operation of a motor vehicle pending in this state or in any other
jurisdiction on the date the defendant filed the petition for a driving
while under the influence of intoxicants diversion agreement;

(6) The defendant has not been convicted of an offense described in
subsection (5) of this section within the period beginning 10 years
before the date of the commission of the present offense and ending on
the date the defendant filed the petition for a driving while under the
influence of intoxicants diversion agreement;

(7) The defendant did not have a commercial driver license at the
time of the offense;

(8) The defendant was not operating a commercial motor vehicle at
the time of the offense; and

(9) The present driving while under the influence of intoxicants
offense did not involve an accident resulting in:

(a) Death of any person other than the defendant; or

(b) Physical injury as defined in ORS 161.015 to any person other
than the defendant. [1987 c.441 §3; 1997 c.749 §5; 1999 c.445 §1; 1999
c.1051 §295; 2005 c.649 §29]After the time for requesting a
hearing under ORS 813.210 has expired with no request for a hearing, or
after a hearing requested under ORS 813.210, the court shall determine
whether to allow or deny a petition for a driving while under the
influence of intoxicants diversion agreement. In making a determination
under this section, the court:

(1) Shall consider whether the diversion will be of benefit to the
defendant and the community.

(2) May take into consideration whether there was an early
recognition by the defendant during the proceeding that a course of
diagnosis and treatment of problem drinking, alcoholism or drug
dependency would be beneficial.

(3) May take into consideration whether there is a probability that
the defendant will cooperate with the diagnostic assessment and treatment
agencies.

(4) May take into consideration whether the defendant will observe
the restrictions contained in the diversion agreement.

(5) May take into consideration whether the offense was committed
in a motor vehicle and whether there was a passenger in the motor vehicle
who was under 18 years of age and at least three years younger than the
defendant.

(6) Shall deny the petition for a driving while under the influence
of intoxicants diversion agreement if the defendant failed to appear at
an arraignment on the present offense without good cause.

(7) Shall deny the petition for a driving while under the influence
of intoxicants diversion agreement if the defendant was charged with or
convicted of an offense of driving while under the influence of
intoxicants or its statutory counterpart in any jurisdiction after the
date the defendant filed the petition.

(8) Shall deny the petition for a driving while under the influence
of intoxicants diversion agreement if the defendant participated in a
driving while under the influence of intoxicants diversion program or in
any similar alcohol or drug rehabilitation program, other than a program
entered into as a result of the charge for the present offense, in this
state or in any other jurisdiction after the date the defendant filed the
petition.

(9) Shall deny the petition for a driving while under the influence
of intoxicants diversion agreement if the defendant was charged with or
convicted of an offense of murder, manslaughter, criminally negligent
homicide or assault that resulted from the operation of a motor vehicle
in this state or in any other jurisdiction after the date the defendant
filed the petition. [1983 c.338 §371; 1987 c.441 §6; 1997 c.749 §6; 1999
c.1051 §296; 2003 c.445 §2] (1) If a driving
while under the influence of intoxicants offense involves damage to
property of a person other than the defendant, the victim of the property
damage has a right to be present and to be heard at any hearing on a
petition for a diversion agreement.

(2) The district attorney or city attorney shall notify the victim
that the defendant may be eligible for diversion and that if there is a
hearing on a petition for diversion, the victim has a right to be present
and to be heard at the hearing. [1999 c.445 §3] (1)
Within 30 days prior to the end of the period of a driving while under
the influence of intoxicants diversion agreement described in ORS
813.230, a defendant may apply by motion to the court in which the
diversion agreement was entered for an order extending the diversion
period.

(2) Petition forms for an application for an extension under this
section shall be available to a defendant at the court.

(3) The form of the petition for an extension under this section
shall be determined by the Supreme Court under ORS 1.525. The petition
forms made available to a defendant by any city or state court shall
conform to the requirements of the Supreme Court.

(4) The court may grant a petition for an extension filed under
this section if the court finds that the defendant made a good faith
effort to complete the conditions of the diversion agreement and that the
defendant can complete the conditions of the diversion agreement within
the requested extended diversion period.

(5) An extension granted under this section may be for no more than
180 days.

(6) A court may grant a defendant only one extension of a diversion
period under this section.

(7) If the court grants the petition for an extension under this
section, the following apply:

(a) If the defendant fully complies with the conditions of the
diversion agreement within the extended diversion period, the court may
dismiss the charge with prejudice under ORS 813.250.

(b) If the court finds that the defendant failed to comply with the
diversion agreement within the extended diversion period, the court shall
enter the guilty plea or no contest plea filed as part of the petition
for a diversion agreement, shall enter a judgment of conviction and shall
sentence the defendant.

(8) If the court denies the petition for an extension under this
section, the court shall enter the guilty plea or no contest plea filed
as part of the petition for a diversion agreement, shall enter a judgment
of conviction and shall sentence the defendant. [1997 c.749 §7; 2003
c.816 §3]Note: Section 6, chapter 816, Oregon Laws 2003, provides:

Sec. 6. (1) The amendments to ORS 813.200, 813.210, 813.225,
813.230 and 813.255 by sections 1 to 5 of this 2003 Act, apply only to
petitions for driving while under the influence of intoxicants diversion
agreements filed on and after the effective date of this 2003 Act
[January 1, 2004].

(2) The provisions of ORS 813.225 in effect on the day before the
effective date of this 2003 Act apply to a person who files a petition
under ORS 813.225 to extend a diversion agreement that was entered into
prior to the effective date of this 2003 Act. [2003 c.816 §6]
(1) When the court allows a petition for a driving while under the
influence of intoxicants diversion agreement filed as provided in ORS
813.210, the judge taking that action shall:

(a) Accept the guilty plea or no contest plea filed as part of the
petition for a diversion agreement but withhold entry of a judgment of
conviction; and

(b) Sign the petition and indicate thereon the date of allowance of
the diversion period, the length of the diversion period and the date
upon which the driving while under the influence offense occurred.

(2) The petition when signed and dated becomes the diversion
agreement between the defendant and the court. The court shall make the
agreement a part of the record of the case. The court shall notify the
Department of Transportation of the diversion agreement in a form agreed
to by the department and the State Court Administrator within 48 hours
after allowing the petition. The department shall make the fact of the
diversion agreement a part of the defendant’s operating record.

(3) A driving while under the influence of intoxicants diversion
agreement shall be for a period of one year after the date the court
allows the petition. During the diversion period the court shall stay the
driving while under the influence of intoxicants offense proceeding
pending completion of the diversion agreement or its termination.

(4) When the court denies a petition for a driving while under the
influence of intoxicants diversion agreement, it shall continue the
offense proceeding against the defendant. The guilty plea or no contest
plea filed as part of the petition for the diversion agreement may not be
used in the offense proceeding under this subsection. [1983 c.338 §372;
1985 c.16 §193; 1985 c.710 §7; 1993 c.751 §71; 2003 c.816 §4]Note: See note under 813.200.In a county that has a victim impact program a court
may require as a condition of a driving while under the influence of
intoxicants diversion agreement that the defendant attend a victim impact
treatment session. If the court requires attendance under this section,
the court may require the defendant, as part of the diversion agreement,
to pay a reasonable fee to the victim impact program to offset the cost
of the defendant’s participation. The fee shall be established for each
county by the victim impact panel coordinator and steering committee of
that county and shall be not less than $5 or more than $50. [1987 c.830
§2; 1993 c.468 §2](1) The filing fee paid by a defendant at the time of
filing a petition for a driving while under the influence of intoxicants
diversion agreement as provided in ORS 813.210 shall be $237 and shall be
ordered paid as follows if the petition is allowed:

(a) $112 to be credited and distributed under ORS 137.295 as an
obligation payable to the state;

(b) $100 to be treated as provided for disposition of fines and
costs under ORS 153.630; and

(c) $25 to be paid to the Director of Human Services for deposit in
the Intoxicated Driver Program Fund created under ORS 813.270, to be used
for purposes of the fund.

(2) In addition to the filing fee under subsection (1) of this
section, the court shall order the defendant to pay $150 directly to the
agency or organization providing the diagnostic assessment.

(3) In addition to the filing fee provided for in subsection (1) of
this section, for the period commencing on August 3, 2005, and ending
December 31, 2006, a circuit court shall collect a surcharge of $71 upon
the filing of a petition for a driving while under the influence of
intoxicants diversion agreement that is allowed. [1983 c.338 §373; 1985
c.16 §194; 1985 c.277 §3; 1987 c.905 §30; 1989 c.576 §§8a,9a; 1989 c.635
§§2,4; 1991 c.557 §6; 1993 c.13 §7; 1999 c.1051 §297; 2003 c.737 §§71,72;
2005 c.303 §§2,3; 2005 c.702 §§85,86]Note: The amendments to 813.240 by section 87, chapter 702, Oregon
Laws 2005, become operative January 1, 2007. See section 88, chapter 702,
Oregon Laws 2005. The text that is operative on and after January 1,
2007, is set forth for the user’s convenience.

813.240. (1) The filing fee paid by a defendant at the time of
filing a petition for a driving while under the influence of intoxicants
diversion agreement as provided in ORS 813.210 shall be $261 and shall be
ordered paid as follows if the petition is allowed:

(a) $136 to be credited and distributed under ORS 137.295 as an
obligation payable to the state;

(b) $100 to be treated as provided for disposition of fines and
costs under ORS 153.630; and

(c) $25 to be paid to the Director of Human Services for deposit in
the Intoxicated Driver Program Fund created under ORS 813.270, to be used
for purposes of the fund.

(2) In addition to the filing fee under subsection (1) of this
section, the court shall order the defendant to pay $150 directly to the
agency or organization providing the diagnostic assessment.(1) At any time after the conclusion of the
period of a driving while under the influence of intoxicants diversion
agreement described in ORS 813.230, a defendant who has fully complied
with and performed the conditions of the diversion agreement may apply by
motion to the court wherein the diversion agreement was entered for an
order dismissing the charge with prejudice.

(2) The defendant shall cause to be served on the district attorney
or city attorney a copy of the motion for entry of an order dismissing
with prejudice the charge of driving while under the influence of
intoxicants. The motion shall be served on the district attorney or city
attorney at the time it is filed with the court. The district attorney or
city attorney may contest the motion.

(3) If the defendant does not appear as provided by subsection (1)
of this section within six months after the conclusion of the diversion
period, and if the court finds that the defendant fully complied with and
performed the conditions of the diversion agreement, and if it gives
notice of that finding to the district attorney or city attorney the
court may on its own motion enter an order dismissing the charge of
driving while under the influence of intoxicants with prejudice.

(4) No statement made by the defendant about the offense with which
the defendant is charged shall be offered or received in evidence in any
criminal or civil action or proceeding arising out of the same conduct
which is the basis of the charge of driving while under the influence of
intoxicants, if the statement was made during the course of the
diagnostic assessment or the rehabilitation program and to a person
employed by the program. [1983 c.338 §374; 1985 c.16 §195; 1987 c.441 §7] (1) At any time before the court
dismisses with prejudice the charge of driving while under the influence
of intoxicants, the court on its own motion or on the motion of the
district attorney or city attorney may issue an order requiring defendant
to appear and show cause why the court should not terminate the diversion
agreement. The order to show cause shall state the reasons for the
proposed termination and shall set an appearance date.

(2) The order to show cause shall be served on the defendant and on
the defendant’s attorney, if any. Service may be made by first class
mail, postage paid, addressed to the defendant at the mailing address
shown on the diversion petition and agreement or at any other address
that the defendant provides in writing to the court.

(3) The court shall terminate the diversion agreement and enter the
guilty plea or no contest plea that was filed as part of the petition for
the diversion agreement if:

(a) At the hearing on the order to show cause, the court finds by a
preponderance of the evidence that any of the reasons for termination
described in this section exist; or

(b) The defendant fails to appear at the hearing on the order to
show cause.

(4) If the court terminates the diversion agreement and enters the
guilty plea or no contest plea, the court may take into account at time
of sentencing any partial fulfillment by the defendant of the terms of
the diversion agreement.

(5) The court shall terminate a diversion agreement under this
section for any of the following reasons:

(a) The defendant fails to fulfill the terms of the diversion
agreement.

(b) The defendant does not qualify for the diversion agreement
under the criteria in ORS 813.215. [1987 c.441 §9; 2003 c.816 §5]Note: See note under 813.200.(1) Courts having jurisdiction over driving while under
the influence of intoxicants offenses shall designate agencies or
organizations to perform the diagnostic assessment and treatment required
under driving while under the influence of intoxicants diversion
agreements described in ORS 813.200. The designated agencies or
organizations must meet the standards set by the Director of Human
Services to perform the diagnostic assessment and treatment of problem
drinking, alcoholism and drug dependency and must be certified by the
Director of Human Services. Wherever possible a court shall designate
agencies or organizations to perform the diagnostic assessment that are
separate from those that may be designated to carry out a program of
treatment.

(2) Monitoring of a defendant’s progress under a diversion
agreement shall be the responsibility of the diagnostic assessment agency
or organization. It shall make a report to the court stating the
defendant’s successful completion or failure to complete all or any part
of the treatment program specified by the diagnostic assessment. The form
of the report shall be determined by agreement between the court and the
diagnostic assessment agency or organization. The court shall make the
report of the diagnostic assessment agency or organization that is
required by this subsection a part of the record of the case. [1983 c.338
§375; 1991 c.557 §7] The
Intoxicated Driver Program Fund is created to consist of moneys placed in
the fund under ORS 813.030 and 813.240 or as otherwise provided by law
and of gifts and grants made to the fund for carrying out the purposes of
the fund. The moneys in the fund may be used only for the following
purposes:

(1) To pay for providing treatment for individuals who enter
diversion agreements under ORS 813.200 and who are found to be indigent.
Payment for treatment under this subsection may include treatment for
problem drinking, alcoholism or drug dependency. Payment shall be made as
provided by the Director of Human Services by rule to agencies or
organizations providing treatment.

(2) To pay for evaluation as provided by law of programs used for
diversion agreements.

(3) To pay the cost of administration of the fund by the Director
of Human Services.

(4) To pay for materials, resources and training supplied by the
Director of Human Services to those persons, organizations or agencies
performing the diagnostic assessments or providing education or treatment
to persons under diversion agreements.

(5) To pay for providing treatment programs required under ORS
813.020 and treatment or information programs required under ORS 471.432
for individuals who are found to be indigent.

(6) To pay for special services required to enable a disabled
person, or a person whose proficiency in the use of English is limited
because of the person’s national origin, to participate in treatment
programs that are used for diversion agreements under ORS 813.200 or are
required under ORS 813.020. This subsection applies:

(a) Whether or not the person is indigent; and

(b) Only to special services required solely because of the
person’s disability or limited proficiency in the use of English. [1983
c.338 §141; 1985 c.16 §42; 1989 c.576 §10; 1991 c.557 §8; 1993 c.757 §1;
1999 c.126 §6; 1999 c.646 §5a]EVIDENCE(1) At the trial of any civil or
criminal action, suit or proceeding arising out of the acts committed by
a person driving a motor vehicle while under the influence of
intoxicants, if the amount of alcohol in the person’s blood at the time
alleged is less than 0.08 percent by weight of alcohol as shown by
chemical analysis of the person’s breath or blood, it is indirect
evidence that may be used with other evidence, if any, to determine
whether or not the person was then under the influence of intoxicants.

(2) Not less than 0.08 percent by weight of alcohol in a person’s
blood constitutes being under the influence of intoxicating liquor.

(3) Notwithstanding subsection (2) of this section, for purposes of
the Motorist Implied Consent Law as defined in ORS 801.010, for a person
who is under 21 years of age, any amount of alcohol in the blood
constitutes being under the influence of intoxicating liquor.

(4) Percent by weight of alcohol in the blood shall be based upon
grams of alcohol per one hundred cubic centimeters of blood. [1983 c.338
§590; 1985 c.16 §297; 1989 c.715 §7; 1991 c.860 §8] If a
person refuses to submit to a chemical test under ORS 813.100 or refuses
to consent to chemical tests under ORS 813.140, evidence of the person’s
refusal is admissible in any civil or criminal action, suit or proceeding
arising out of acts alleged to have been committed while the person was
driving a motor vehicle on premises open to the public or the highways
while under the influence of intoxicants. [1983 c.338 §595; 1985 c.16
§301] (1) The
provisions of the implied consent law, except ORS 813.300, shall not be
construed by any court to limit the introduction of otherwise competent,
relevant evidence in any civil action, suit or proceedings or in any
criminal action other than a violation of ORS 813.010 or a similar
municipal ordinance in proceedings under ORS 813.410.

(2) The provisions of the implied consent law shall not be
construed by any court to limit the introduction of otherwise competent,
relevant evidence of the amount of alcohol in the blood of a defendant in
a prosecution for driving while under the influence of intoxicants if:

(a) The evidence results from a test of blood taken from the
defendant while the defendant was hospitalized or otherwise receiving
medical care, whether or not the defendant consented to the drawing of
blood or to the test; or

(b) The evidence is obtained pursuant to a search warrant. [1983
c.338 §596; 1985 c.16 §302; 1999 c.437 §1](1) A court shall, at the request
of a party to the case, admit into evidence, without certification, a
copy of administrative rules of the Department of State Police addressing
methods of conducting chemical tests of a person’s breath in a proceeding
arising from the arrest of a person for driving while under the influence
of intoxicants.

(2) If a police officer testifies in a proceeding arising from the
arrest of a person for driving while under the influence of intoxicants
that the officer has a valid permit to perform analysis of a person’s
breath, the defendant has the burden of moving forward with evidence to
show that the officer does not have a valid permit. [1999 c.446 §2]Note: 813.322 was added to and made a part of the Oregon Vehicle
Code by legislative action but was not added to ORS chapter 813 or any
smaller series therein. See Preface to Oregon Revised Statutes for
further explanation.(1) If the prosecuting attorney or the attorney for the
defendant in a prosecution for driving while under the influence of
intoxicants obtains a tape or a transcript of a hearing held for the
defendant under ORS 813.410, the attorney must provide a copy of the tape
or transcript to the attorney for the other party at least seven days
prior to the first date set for trial. If the attorney fails to supply
the material in the time required, testimony from the hearing may not be
admitted in evidence in the trial for any purpose, unless the attorney
shows good cause for the failure to make the material available.

(2) The cost of a copy of a tape or transcript furnished under
subsection (1) of this section shall be borne by the party who receives
the copy.

(3) Nothing in this section requires a tape to be transcribed by
the attorney who is required to provide a tape or transcript under
subsection (1) of this section. [1999 c.831 §3]Note: 813.324 was enacted into law by the Legislative Assembly but
was not added to or made a part of the Oregon Vehicle Code or any chapter
or series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.(1) In a prosecution for felony driving while under
the influence of intoxicants under ORS 813.010, the state shall plead the
prior convictions and shall prove the prior convictions unless the
defendant stipulates to that fact prior to trial. If the defendant so
stipulates and the trial is by jury:

(a) The court shall accept the stipulation regardless of whether or
not the state agrees to it;

(b) The defendant’s stipulation to the prior convictions
constitutes a judicial admission to that element of the accusatory
instrument. The stipulation shall be made a part of the record of the
case, but shall not be offered or received in the presence of the jury;

(c) For the purpose of establishing the prior convictions solely as
an element of the crime under ORS 813.010, neither the court nor the
state shall reveal to the jury the prior convictions, but the prior
convictions are established in the record by the defendant’s stipulation;
and

(d) The court shall not submit the accusatory instrument or
evidence of the prior convictions to the jury.

(2) In a proceeding under ORS 813.010, the state may offer, and the
court may receive and submit to the jury, evidence of the prior
convictions for impeachment of the defendant or another purpose, other
than establishing the prior convictions as an element of the offense,
when the evidence of the prior convictions is otherwise admissible for
that purpose. When evidence of the prior convictions has been admitted by
the court, the state may comment upon, and the court may give
instructions about, the evidence of the prior convictions only to the
extent that the comments or instructions relate to the purpose for which
the evidence was admitted.

(3) When the defendant stipulates to the prior convictions required
as an element of felony driving while under the influence of intoxicants
under ORS 813.010, if the jury finds the defendant guilty upon
instruction regarding the balance of the elements of the crime, the court
shall enter a judgment of guilty of felony driving while under the
influence of intoxicants. [1999 c.1049 §5]Note: 813.326 was enacted into law by the Legislative Assembly but
was not added to or made a part of the Oregon Vehicle Code or any chapter
or series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation.A defendant who challenges the validity of prior convictions
alleged by the state as an element of felony driving while under the
influence of intoxicants must give notice of the intent to challenge the
validity of the prior convictions at least seven days prior to the first
date set for trial on the felony charge. The validity of the prior
convictions shall be determined prior to trial by the court. [1999 c.1049
§4]SUSPENSION(For Conviction)
(1) Except as provided in subsection (2) of this section, upon receipt of
a record of conviction for misdemeanor driving while under the influence
of intoxicants, the Department of Transportation shall suspend the
driving privileges of the person convicted. The suspension shall be for a
period described under Schedule II of ORS 809.428, except the department
shall not reinstate any driving privileges to the person until the person
complies with future responsibility filings. A person is entitled to
administrative review under ORS 809.440 of a suspension imposed under
this subsection.

(2) A person convicted of felony driving while under the influence
of intoxicants, or a person convicted of misdemeanor driving while under
the influence of intoxicants for a third or subsequent time, is subject
to revocation of driving privileges as provided in ORS 809.235. [1983
c.338 §353(8); 1985 c.16 §166(8); 1985 c.393 §10a(8); 1985 c.669 §2a(8);
1991 c.702 §13; 2001 c.786 §3; 2003 c.346 §1; 2003 c.402 §40; 2005 c.436
§2](Of Commercial Driver License)Driving a commercial motor vehicle upon any highway or on
premises open to the public while under the influence of intoxicants
constitutes grounds for commercial driver license suspension. The
following apply to this section:

(1) Upon receipt of a record of conviction for driving while under
the influence of intoxicants, the Department of Transportation shall
suspend the person’s commercial driver license if the person was driving
a commercial motor vehicle at the time the person committed the offense.

(2) The suspension shall be for a period described under ORS
813.404.

(3) A person is entitled to administrative review under ORS 809.440
of a suspension imposed under this section.

(4) Suspension under this section is in addition to any suspension
under ORS 813.400. [1989 c.636 §40; 1991 c.702 §14; 2003 c.402 §41] When
the Department of Transportation imposes a suspension of a commercial
driver license under ORS 813.403 or 813.410 (2), or when the department
imposes a suspension of a commercial driver license under ORS 809.413
(11) or (12) for conduct in another jurisdiction that is substantially
similar to that described in either ORS 813.403 or 813.410 (2), the
suspension shall be:

(1) For a period of one year if:

(a) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license suspended as
described in ORS 809.404;

(b) The person was not driving a commercial motor vehicle
containing a hazardous material at the time of the offense; and

(c) The suspension is either because the person was convicted under
ORS 813.010 or because a breath or blood test under ORS 813.100 disclosed
that the person had a level of alcohol in the person’s blood that was
0.04 percent or more by weight.

(2) For a period of three years if:

(a) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license suspended as
described in ORS 809.404;

(b) The person was not driving a commercial motor vehicle
containing a hazardous material at the time of the offense; and

(c) The suspension is for refusal of a test under ORS 813.100.

(3) For a period of three years if:

(a) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license suspended as
described in ORS 809.404;

(b) The person was driving a commercial motor vehicle containing a
hazardous material at the time of the offense; and

(c) The suspension is either because the person was convicted under
ORS 813.010 or because a breath or blood test under ORS 813.100 disclosed
that the person had a level of alcohol in the person’s blood that was
0.04 percent or more by weight.

(4) For a period of five years if:

(a) The person has not previously been convicted of an offense
described in ORS 809.404 or had a commercial driver license suspended as
described in ORS 809.404;

(b) The person was driving a commercial motor vehicle containing a
hazardous material at the time of the offense; and

(c) The suspension is for refusal of a test under ORS 813.100.

(5) For the lifetime of the person if the person has previously
been convicted of an offense described in ORS 809.404 or had a commercial
driver license suspended as described in ORS 809.404. [1989 c.636 §41;
1991 c.185 §16; 1993 c.305 §5; 1995 c.568 §5; 2003 c.402 §42; 2005 c.649
§25]Note: Section 26, chapter 649, Oregon Laws 2005, provides:

Sec. 26. The amendments to ORS 813.404 by section 25 of this 2005
Act apply to:

(1) Offenses committed before, on or after the effective date of
this 2005 Act [July 27, 2005] for suspensions imposed as provided under
ORS 813.404 (1) to (4).

(2) Offenses committed before, on or after the effective date of
this 2005 Act for suspensions imposed as provided under ORS 813.404 (5)
if:

(a) The person has two or more previous records of conviction or
suspensions as described in section 13 of this 2005 Act [809.404];

(b) The records of conviction or suspensions described in paragraph
(a) of this subsection resulted from the operation of a commercial motor
vehicle; and

(c) None of the offenses described in paragraph (a) of this
subsection was an offense described in section 13 (2)(f) of this 2005 Act
[809.404 (2)(f)].

(3) Offenses committed on or after the effective date of this 2005
Act for suspensions imposed under ORS 813.404 (5) if the offense is not
an offense described in subsection (2) of this section. [2005 c.649 §26](Under Implied Consent Law)(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
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) A hearing required by this section is subject to all of the
following:

(a) The hearing shall be before 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.

(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 or through an attorney
waives the right to a hearing notwithstanding the provisions of ORS
183.415. 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 of witnesses 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) 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) 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) Unless a person fails, without just cause, to appear in person
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. [1983 c.338
§358; 1985 c.16 §167; 1985 c.672 §13; 1987 c.158 §170; 1989 c.636 §44;
1991 c.860 §11; 1993 c.305 §6; 1993 c.600 §1; 1995 c.568 §6; 1999 c.831
§2; 1999 c.849 §§193,194; 2003 c.75 §67; 2005 c.649 §27]
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 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. [1999 c.831 §4]Note: 813.412 was enacted into law by the Legislative Assembly but
was not added to or made a part of the Oregon Vehicle Code or any chapter
or series therein by legislative action. See Preface to Oregon Revised
Statutes for further explanation. When
the Department of Transportation imposes a suspension under ORS 813.410,
the suspension shall be for a period of time determined according to the
following:

(1) If the suspension is for refusal of a test under ORS 813.100
and the person is not subject to an increase in the suspension time for
reasons described in ORS 813.430, the suspension shall be for a period of
one year.

(2) If the suspension is for refusal of a test under ORS 813.100
and the person is subject to an increase in the suspension time for
reasons described in ORS 813.430, the suspension shall be for a period of
three years.

(3) If the suspension is because a breath or blood test under ORS
813.100 disclosed that the person had a level of alcohol in the person’s
blood that constituted being under the influence of intoxicating liquor
under ORS 813.300 and the person is not subject to an increase in the
suspension time for reasons described in ORS 813.430, the suspension
shall be for a period of 90 days.

(4) If the suspension is because a breath or blood test under ORS
813.100 disclosed that the person had a level of alcohol in the person’s
blood that constituted being under the influence of intoxicating liquor
under ORS 813.300 and the person is subject to an increase in the
suspension time for reasons described in ORS 813.430, the suspension
shall be for a period of one year. [1985 c.16 §171; 1993 c.305 §7; 1995
c.568 §7] This
section establishes circumstances under which ORS 813.420 requires an
increase in the time for suspension of driving privileges and under which
ORS 813.520 requires an increase in the time before the Department of
Transportation may issue a hardship permit. A person is subject to an
increase in suspension time under this section if any of the following
apply:

(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 any other
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 driving under the influence of
intoxicants in violation of ORS 813.010 or its statutory counterpart in
another jurisdiction or a municipal ordinance.

(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 any other
jurisdiction. [1985 c.16 §173; 1985 c.672 §15; 1987 c.801 §12] (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) 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. [1985 c.16 §169; 1985 c.672 §14; 1987 c.272 §5;
1993 c.600 §2; 1999 c.831 §1; 2001 c.294 §§9,10; 2003 c.75 §68](1) The petition to the circuit court appealing an order of the
Department of Transportation after a hearing under ORS 813.410 shall
state the nature of the petitioner’s interest and the ground or grounds
upon which the petitioner contends the order should be reversed or
remanded.

(2) The court shall conduct the review without a jury. Review shall
be limited to the record of the department’s hearing.

(3) Any party to the proceedings before the circuit court may
appeal from the judgment of the court to the Court of Appeals.

(4) Upon review in the circuit court and Court of Appeals, the
court may affirm, reverse or remand the order as follows:

(a) If the court finds that the department has erroneously
interpreted a provision of law and that a correct interpretation compels
a particular action, it shall:

(A) Set aside or modify the order; or

(B) Remand the case to the department for further action under a
correct interpretation of the provision of law.

(b) The court shall remand the order to the department if it finds
the department’s exercise of discretion to be any of the following:

(A) Outside the range of discretion delegated to the agency by law.

(B) Inconsistent with a department rule, an officially stated
department position, or a prior department practice, if the inconsistency
is not explained by the department.

(C) Otherwise in violation of a constitutional or statutory
provision.

(c) The court shall set aside or remand the order if it finds that
the order is not supported by substantial evidence in the record.

(5) Upon review, the court shall affirm the department’s order
unless the court finds a ground for setting aside, modifying or remanding
to the department under a specified provision of this section.

(6) In any review under this section, the court shall also review
de novo determinations made by an agency that are subject to ORS 183.650
(4). [1985 c.672 §23; 1999 c.849 §§196,197; 2003 c.75 §69]If the Department of Transportation
verifies to its satisfaction that it has suspended the driving privileges
of the wrong person under ORS 813.410 because a person arrested for
driving under the influence of intoxicants gave false identification at
the time of the arrest, all the following apply:

(1) The department shall immediately rescind the suspension order
under the false name and shall issue a suspension order for the period
set forth in ORS 813.420 to the person arrested.

(2) The department shall issue the order in the manner set forth in
ORS 809.430.

(3) No further notice of suspension need be given.

(4) The time limitations in ORS 813.410 (1), (2), (3) and (4)(e) do
not apply to a suspension order issued under this section. [1985 c.672
§25; 1989 c.636 §47]The Department of Transportation shall make a notation on the
driving record of a person indicating that the person was acquitted of a
charge of driving under the influence of intoxicants if:

(1) The person’s driving privileges were suspended because a breath
or blood test under ORS 813.100 disclosed that the person had a level of
alcohol in the person’s blood that constituted being under the influence
of intoxicating liquor under ORS 813.300;

(2) An accusatory instrument was filed charging the person with
driving under the influence of intoxicants in violation of ORS 813.010
arising out of the same incident that led to the suspension of the
person’s driving privileges;

(3) The person was acquitted of the charge; and

(4) The person presents the department with a certified copy of the
judgment of acquittal from the court clearly showing the location of the
court, the date of the arrest and the findings of the court. [1987 c.303
§2; 1993 c.305 §8; 1995 c.568 §8]HARDSHIP PERMITS (1) If a person’s license is
suspended for driving while under the influence of intoxicants under ORS
813.400 and the suspension period is determined by ORS 809.428 (2)(b) or
(c), the Department of Transportation may only issue a hardship permit to
the person under ORS 807.240 if the person, in addition to any
requirement under ORS 807.240 and any applicable requirements under ORS
807.250 and 813.520:

(a) Is examined by the Director of Human Services or its designee
to determine whether the person has a problem condition involving
alcohol, inhalants or controlled substances as described in ORS 813.040;
and

(b) Complies with the requirements of this section.

(2) If the Director of Human Services determines that the person
has a problem condition involving alcohol, inhalants or controlled
substances, as described in ORS 813.040, the department may issue the
permit to the person only if both the following apply:

(a) The person enrolled in a program for rehabilitation for
alcoholism or drug dependence approved by the Director of Human Services.

(b) The Director of Human Services recommends, on the basis of the
person’s progress in the rehabilitation program, such reinstatement in
writing to the department. If the Director of Human Services makes a
recommendation under this paragraph, the Director of Human Services shall
state specifically in the recommendation the times, places, routes and
days of the week minimally necessary for the person to seek or retain
employment, to attend any alcohol or drug treatment or rehabilitation
program or to obtain necessary medical treatment for the person or a
member of the person’s immediate family.

(3) If the Director of Human Services determines that the person
does not have a problem condition involving alcohol, inhalants or
controlled substances as described in ORS 813.040, the department may
issue the permit to the person only if, in addition to any requirements
under ORS 807.240, the person enters an alcohol or drug information
program approved by the Director of Human Services and the department
determines that issuance of a permit is appropriate. If the department
issues a permit to a person described in this subsection, the department
shall require, under ORS 807.240, that the person complete the program as
a condition of retaining the permit. [1983 c.338 §328; 1985 c.16 §145;
1987 c.801 §13; 1989 c.401 §2; 1991 c.557 §9; 1999 c.619 §13; 2003 c.23
§4]This section establishes limitations that the Department of
Transportation is required or permitted to place on hardship permits
issued under ORS 807.240 to persons whose suspension is based upon a
conviction for driving under the influence of intoxicants or upon ORS
813.100. Limitations placed on a hardship permit under this section are
in addition to any limitations placed on the permit under ORS 807.240. A
person’s permit is subject to suspension or revocation as provided under
ORS 807.240 if the department determines that the holder of the permit
has violated any limitation placed upon the permit under this section.
Violation of a limitation under this section is punishable as provided by
ORS 811.175 or 811.182. The limitations are as described in the following:

(1) A hardship permit issued to the person shall limit the person’s
driving privileges:

(a) To the times, places, routes and days the department determines
to be minimally necessary for the person to seek or retain employment, to
attend any alcohol or drug treatment or rehabilitation program or to
obtain required medical treatment for the person or a member of the
person’s immediate family; and

(b) To times, places, routes and days that are specifically stated.

(2) The person’s driving privileges under the permit are subject to
suspension or revocation if the person does not maintain a good driving
record, as defined by the administrative rules of the department, during
the term of the permit.

(3) If the person is in a rehabilitation program under ORS 813.500,
the person must complete the rehabilitation program.

(4) The department may require the person to complete a driver
improvement program under ORS 809.480 as a condition of the permit.

(5) If the person is involved in a diversion agreement under ORS
813.220 and 813.230, the department may require the person to
successfully complete the diversion program as a condition of retaining
the permit.

(6) The department shall condition the permit so that the permit
will be revoked if the person is convicted of any of the following:

(a) Reckless driving under ORS 811.140.

(b) Driving under the influence of intoxicants under ORS 813.010.

(c) Failure to perform the duties of a driver under ORS 811.700 or
811.705.

(d) Fleeing or attempting to elude a police officer under ORS
811.540.

(e) Driving while suspended or revoked under ORS 811.175 or
811.182. [1983 c.338 §329; 1985 c.16 §146; 1987 c.730 §21; 1987 c.801
§14; 1991 c.208 §5; 2003 c.23 §5]In addition to any provisions of ORS
807.240 and 813.510 or 807.250, this section establishes limitations on
the authority of the Department of Transportation to issue driving
privileges under ORS 807.240. The department may not reinstate any
driving privileges or issue any hardship permit under ORS 807.240 as
provided under any of the following:

(1) For a period of 90 days after the beginning of the suspension
if the suspension is for refusal of a test under ORS 813.100 and the
person is not subject to an increase in the time before a permit may be
issued for reasons described in ORS 813.430. This period of 90 days shall
be reduced by the time the department refused to issue a hardship permit
under subsection (5) or (6) of this section if the person’s driving
privileges were suspended based on the same occurrence.

(2) For a period of 30 days after the beginning of the suspension
if the suspension is because a breath or blood test under ORS 813.100
disclosed that the person had a level of alcohol in the person’s blood
that constituted being under the influence of intoxicating liquor under
ORS 813.300 and the person is not subject to an increase in the time
before a hardship permit may be issued for reasons described in ORS
813.430. This period of 30 days shall be reduced by the time the
department refused to issue a hardship permit under subsection (5) or (6)
of this section if the person’s driving privileges were suspended based
on the same occurrence.

(3) For a period of one year after the beginning of the suspension
if the suspension is because a breath or blood test under ORS 813.100
disclosed that the person had a level of alcohol in the person’s blood
that constituted being under the influence of intoxicating liquor under
ORS 813.300 and the person is subject to an increase in the time before a
hardship permit may be issued for reasons described under ORS 813.430.
This period of one year shall be reduced by the time the department
refused to issue a hardship permit under subsection (5) or (6) of this
section if the person’s driving privileges were suspended based on the
same occurrence.

(4) For a period of one year after the beginning of the suspension
if the suspension is for refusal of a test under ORS 813.100 and the
person is subject to an increase in the time before a hardship permit may
be issued for reasons described in ORS 813.430. This period of one year
shall be reduced by the time the department refused to issue a hardship
permit under subsection (5) or (6) of this section if the person’s
driving privileges were suspended based on the same occurrence.

(5) For a period of 90 days after the beginning of the suspension
under ORS 813.400 if it is the person’s second conviction for driving
while under the influence of intoxicants if the suspension period is
determined by ORS 809.428 (2)(b). This period of 90 days shall be reduced
by the time the department refused to issue a hardship permit under
subsection (1), (2), (3) or (4) of this section if the person’s driving
privileges were suspended based on the same occurrence.

(6) For a period of one year after the beginning of the suspension
under ORS 813.400 for driving while under the influence of intoxicants if
the suspension period is determined by ORS 809.428 (2)(c). This period of
one year shall be reduced by the time the department refused to issue a
hardship permit under subsection (1), (2), (3) or (4) of this section if
the person’s driving privileges were suspended based on the same
occurrence.

(7) To any person who has a mental or physical condition or
impairment that affects the person’s ability to safely operate a motor
vehicle.

(8) If the suspension is based upon a conviction for a violation of
ORS 813.010 or is imposed under ORS 813.410 based upon ORS 813.100 to a
person who has available public or private transportation sufficient to
fulfill the person’s transportation needs while the person is suspended.

(9) For a period of 30 days following imposition of suspension, if
the person, within the previous year, has been convicted of a traffic
crime and the suspension is based upon a conviction for violation of ORS
813.010 or is imposed under ORS 813.410 based upon ORS 813.100. [1985
c.16 §148; 1985 c.672 §16; 1987 c.673 §1a; 1987 c.801 §15; 1989 c.224
§141; 1989 c.401 §3; 1993 c.305 §9; 1995 c.568 §9; 1999 c.1051 §91; 2005
c.140 §5]IGNITION INTERLOCK DEVICES (1) The Department of
Transportation, in consultation with the Transportation Safety Committee,
shall establish a program for the use of ignition interlock devices by
persons convicted of driving under the influence of intoxicants and
granted hardship permits under ORS 807.240.

(2) The department shall adopt rules that specify requirements for
ignition interlock devices that may be used and shall publish a list of
devices that meet the requirements. The list may include devices that:

(a) Do not impede the safe operation of the vehicle;

(b) Have the fewest opportunities to be bypassed;

(c) Correlate well with established measures of alcohol impairment;

(d) Work accurately and reliably in an unsupervised environment;

(e) Require a deep lung breath sample or other accurate measure of
blood alcohol content equivalence;

(f) Resist tampering and give evidence if tampering is attempted;

(g) Are difficult to circumvent, and require premeditation to do so;

(h) Minimize inconvenience to a sober user;

(i) Operate reliably over the range of automobile environments or
automobile manufacturing standards;

(j) Are manufactured by a party who is adequately insured for
product liability; and

(k) Have a label affixed in a prominent location warning that any
person tampering with, circumventing or otherwise misusing the device is
subject to civil penalty. [1987 c.746 §1; 1991 c.453 §14; 1993 c.382 §2](1) When a person
is convicted of driving while under the influence of intoxicants in
violation of ORS 813.010 or of a municipal ordinance, the Department of
Transportation, in addition to any other requirement, shall require that
an approved ignition interlock device be installed and used in any
vehicle operated by the person:

(a) Before the person is eligible for a hardship permit. The
requirement is a condition of the hardship permit for the duration of the
hardship permit.

(b) For the first six months after the ending date of the
suspension or revocation caused by the conviction. Violation of the
condition imposed under this paragraph is a Class A traffic violation.

(2) If the court determines that approved ignition interlock
devices are reasonably available, the court may require as a condition of
a driving while under the influence of intoxicants diversion agreement
that an approved ignition interlock device be installed in any vehicle
operated by the person. Courts may not exercise authority under this
subsection during any period the courts have notice from the Office of
Economic Analysis of the Oregon Department of Administrative Services
that there are not sufficient moneys in the Intoxicated Driver Program
Fund to pay the costs under subsection (4) of this section. The Office of
Economic Analysis of the Oregon Department of Administrative Services may
not issue any notice under this subsection if federal funds are available
to pay the cost of the interlock devices for indigents and costs of
analysis of the use of interlock devices.

(3) Except as provided in subsection (4) of this section, if an
ignition interlock system is ordered or required under subsection (1) or
(2) of this section, the person so ordered or required shall pay to the
provider the reasonable costs of leasing, installing and maintaining the
device. A payment schedule may be established for the person by the
department.

(4) The department may waive, in whole or in part, or defer the
defendant’s responsibility to pay all or part of the costs under
subsection (3) of this section if the defendant meets the criteria for
indigence established for waiving or deferring such costs under
subsection (5) of this section. If the defendant’s responsibility for
costs is waived, then notwithstanding ORS 813.270, the costs described in
subsection (3) of this section must be paid from the Intoxicated Driver
Program Fund.

(5) The department, by rule, shall establish criteria and
procedures it will use for qualification to waive or defer costs
described under subsection (3) of this section for indigence. The
criteria must be consistent with the standards for indigence adopted by
the federal government for purposes of the food stamp program.

(6) At the end of the suspension or revocation resulting from the
conviction, the department shall suspend the driving privileges or right
to apply for driving privileges of a person who has not submitted proof
to the department that an ignition interlock device has been installed or
who tampers with an ignition interlock device after it has been
installed. If the suspension is for failing to submit proof of
installation, the suspension continues until the department receives
proof that the ignition interlock device has been installed or until six
months after the ending date of the suspension resulting from the
conviction, whichever comes first. If the suspension is for tampering
with an ignition interlock device, the suspension continues until six
months after the ending date of the suspension resulting from the
conviction. A person whose driving privileges or right to apply for
privileges is suspended under this subsection is entitled to
administrative review, as described in ORS 809.440, of the action.

(7) The department shall adopt rules permitting medical exemptions
from the requirements of installation and use of an ignition interlock
device under subsection (1) of this section. [1987 c.746 §2; 1989 c.576
§1; 1991 c.453 §15; 1993 c.382 §3; 1993 c.627 §6; 1999 c.770 §7; 2001
c.786 §4; 2003 c.26 §1]
(1) When a court orders installation of an ignition interlock device
pursuant to ORS 813.602, the court shall send a copy of the order to the
Department of Transportation. The department shall note the requirement
on the driving record of the person required to install the device.

(2) The department may not issue a hardship permit under ORS
807.240 to any person who is ordered to install an ignition interlock
device on the person’s vehicle until the person furnishes the department
satisfactory proof that the device has been installed on any vehicle
owned or operated by the person. The department shall determine by rule
what constitutes satisfactory proof under this subsection.

(3) When the department issues a hardship permit to a person who is
required to have an ignition interlock device, the department shall note
on the permit that the device is required. The notation constitutes a
limitation on the permit and a person who violates the limitation is
punishable as provided in ORS 811.182 for criminal driving while
suspended or revoked. [1987 c.746 §3; 1989 c.398 §2; 1997 c.249 §235]
Notwithstanding ORS 813.604, if a person is required, in the course and
scope of the person’s employment, to operate a motor vehicle owned by the
person’s employer, the person may operate that vehicle without
installation of an ignition interlock device if:

(1) The employer has been notified that the employee is operating
with a hardship permit restricted as provided in ORS 813.604 or the
employee is operating on a fully reinstated license within the first six
months following suspension or revocation for driving while under the
influence of intoxicants; and

(2) The employee has proof of the notification or fully reinstated
license in the possession of the employee while operating the employer’s
vehicle in the course of employment. [1987 c.746 §4; 1999 c.770 §8; 2001
c.786 §5](1) A person commits the offense of knowingly
furnishing a motor vehicle without an ignition interlock device to
someone who is not authorized to drive such a vehicle if the person
rents, leases, lends or otherwise furnishes a motor vehicle to someone
the person knows to have been ordered or required under ORS 813.602, to
install an ignition interlock device, and the motor vehicle is not
equipped with such a device that is in working order.

(2) The offense described in this section, knowingly furnishing a
motor vehicle without an ignition interlock device to someone who is not
authorized to drive such a vehicle, is a Class A traffic violation. [1987
c.746 §5; 1989 c.576 §2](1) A person commits the offense of unlawfully soliciting
another to blow into an ignition interlock device or start a motor
vehicle equipped with an ignition interlock device if the person has such
a device as a result of an order or requirement under ORS 813.602 and the
person requests or solicits another to blow into the device or start the
motor vehicle so as to circumvent the device.

(2) The offense described in this section, unlawfully soliciting
another to blow into an ignition interlock device or start a motor
vehicle equipped with an ignition interlock device, is a Class A traffic
violation. [1987 c.746 §6; 1989 c.576 §3]
(1) A person commits the offense of unlawfully blowing into an ignition
interlock device or starting a motor vehicle equipped with an ignition
interlock device if, for the purpose of providing an operable motor
vehicle for someone required under ORS 813.602 to have such a device, the
person blows into an ignition interlock device or starts an automobile
equipped with the device.

(2) This section does not apply to a person who is required to have
an ignition interlock device and who blows into or starts the person’s
own vehicle that is so equipped.

(3) The offense described in this section, unlawfully blowing into
an ignition interlock device or starting a motor vehicle equipped with an
ignition interlock device, is a Class A traffic violation. [1987 c.746 §7] (1) A
person commits the offense of tampering with an ignition interlock device
if the person does anything to a device that was ordered installed
pursuant to ORS 813.602 that circumvents the operation of the device.

(2) The offense described in this section, tampering with an
ignition interlock device, is a Class A traffic violation. [1987 c.746 §9]Notwithstanding ORS 813.270, moneys in the Intoxicated Driver
Program Fund may be used to pay for administration and evaluation of the
ignition interlock program established by ORS 813.600 to 813.616 and for
the costs of participation in the program for indigents. [1987 c.746 §8;
1993 c.382 §4]

_______________

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