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Guide to Implied Consent Hearings

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Guide to Implied Consent Hearings OFFICE OF ADMINISTRATIVE HEARINGS GUIDE TO OREGON IMPLIED CONSENT HEARINGS JUNE 2011 GUIDE TO OREGON IMPLIED CONSENT HEARINGS TABLE OF CONTENTS CHAPTER 1: INTRODUCTION............................................................................................. 1.1 CHAPTER 2: HISTORICAL PERSPECTIVE AND SUBSEQUENT DEVELOPMENTS.................... 2.1 CHAPTER 3: ENCOUNTERS BETWEEN POLICE AND CITIZENS............................................ 3.1 CHAPTER 4: STOPS AND WHO MAY MAKE THEM ............................................................ 4.1 CHAPTER 5: TRAFFIC VIOLATION STOPS AND THEIR EXPANSION .................................... 5.1 CHAPTER 6: STOPS BASED ON THE REASONABLE SUSPICION OF A CRIME........................ 6.1 CHAPTER 7: THE OFFENSE OF DUII ................................................................................. 7.1 CHAPTER 8: PROBABLE CAUSE ........................................................................................ 8.1 CHAPTER 9: ARREST AND CUSTODY ................................................................................ 9.1 CHAPTER 10: REASONABLE GROUNDS........................................................................... 10.1 CHAPTER 11: RIGHTS AND CONSEQUENCES ................................................................... 11.1 CHAPTER 12: REASONABLE OPPORTUNITY TO COMMUNICATE...................................... 12.1 CHAPTER 13: REFUSING A TEST ..................................................................................... 13.1 CHAPTER 14: METHODS, PROCEDURES AND EQUIPMENT............................................... 14.1 CHAPTER 15: TEST FAILURE AND SUSPENSION LENGTHS............................................... 15.1 CHAPTER 16: IMPLIED CONSENT PAPERWORK ............................................................... 16.1 CHAPTER 17: LATE HEARING REQUESTS, RESETS AND CONTINUANCES ........................ 17.1 CHAPTER 18: CONDUCTING THE HEARING ..................................................................... 18.1 CHAPTER 19: EVIDENCE................................................................................................. 19.1 CHAPTER 20: POST-HEARING PROCESS AND COMPARISON TO CRIMINAL CASES........... 20.1 APPENDIX: INDEX OF CASES ........................................................................................... A.1 CHAPTER 1 INTRODUCTION ***** 1.1 CHAPTER 1: INTRODUCTION A. PURPOSE AND INTENDED USE OF THE MANUAL The purpose of this manual is to review Oregon’s process for suspending driving privileges of impaired drivers under the Implied Consent law. Because Oregon’s Implied Consent law implicates significant portions of criminal law and procedure, these are essential elements of the discussion. However, the emphasis in this manual is on administrative law rather than the criminal trial aspects of the offense of Driving Under the Influence of Intoxicants (DUII). The prosecution and defense of DUII charges in court does not overlap with the Implied Consent process per se, other than through the possible use of the Implied Consent hearing record to impeach witnesses at a criminal trial. The manual begins with an historical overview of the Implied Consent concept as it evolved nationally and in Oregon. It then moves into a discussion of the process involved in police investigation and arrest of an intoxicated driver for DUII. The remainder of the outline covers those subjects as they actually arise in the course of Implied Consent hearings and the elements of an Implied Consent suspension that are unique to the administrative hearing. Although the content is intended primarily for substantive legal topics, there are sections dealing with the two most important areas where substantive and procedural issues overlap in Implied Consent hearings. These include the ways that evidence is taken and evaluated at Implied Consent hearings and decisions that are sometimes required to postpone or dismiss Implied Consent hearings. Case citations in this manual usually do not reflect every case covering a given topic. Parallel citations of Oregon cases to West's Pacific Reporter series are not given. No attempt has been made to collect all citations where a certain decision is simply mentioned in another later one. The reader is urged to bear in mind that a case may have been overruled as to other points not directly relating to the discussion at hand. We tried to provide a balanced coverage of legal issues where different lines of cases or differing interpretations are known. There are a few places in the outline below where the reader will find a statement such as "Hearing Section policy is * * *." These are references to policies of the Transportation Section of the OAH. They represent a declaration of the legal policy or practice which ALJs are expected to follow in resolving certain legal problems, given comparable fact situations. We have attempted to apply a plain and reasonable approach to all issues of coverage and interpretation. Practical advice is contained in paragraphs entitled “Practical notes.” Any statements of opinion contained in this manual are just that, and do not represent policy. Since 1994, "DMV" no longer refers to a separate department of state government, as it once did. "DMV" stands for the "Driver and Motor Vehicle Services" Division of the Oregon Department of Transportation (ODOT). The Implied Consent law is still administered from a program unit within DMV. 1.2 CHAPTER 1: INTRODUCTION The Office of Administrative Hearings is part of the Department of Employment, and is referred herein as “the OAH.” OAH conducts Implied Consent hearings on behalf of DMV. Implied Consent orders are final orders. Within the OAH, the Transportation Hearings Section is the legal successor to DMV's former Hearings Section. B. ORGANIZATION OF THE MANUAL The manual is organized chronologically. It begins with what the police officer does in the field and it ends with a Petitioner’s request for reconsideration. C. ACKNOWLEDGEMENTS This manual began as the monumental effort of one now retired ALJ, Lee Grayson. The first edition of the manual, issued in 2001, was entirely his effort, which he wrote alone over a substantial period of time. Therefore, the majority of the credit for the concept and initial compilation belongs to Mr. Grayson. He is also the author of the history of the Implied Consent law. Two years later, in 2003, sections of Mr. Grayson’s manual were sent out to several ALJs for the addition of new cases and editing. It was during the up-date that a reorganization of the manual was proposed. For the reorganization of the manual, credit goes to Andrea Sloan and Susan Teppola. Re-writing credit goes to ALJs Bob Goss, Bill Halpert, Andrea Sloan, Susan Teppola and Alison Webster, all from the transportation section. The re-writing was overseen by Lee Grayson and Eric Moore. Both Michelle Suffian-Chilton and Andrea Johanson provided technical assistance in producing that edition of the manual. The manual was updated in October 2004 by Alison Webster and again in April 2011 by Alison Webster and Susan Teppola. Technical support for the most recent update was provided by Phoebe Colman. 1.3 CHAPTER 2 IMPLIED CONSENT HISTORICAL PERSPECTIVE AND SUBSEQUENT DEVELOPMENTS ***** 2.1 CHAPTER 2: HISTORICAL PERSPECTIVE AND SUBSEQUENT DEVELOPMENTS A. THE EARLY YEARS Today’s Implied Consent law is a product of historical progression in the criminal and administrative law fields and changing attitudes towards the use of intoxicants over the last half of the twentieth century. At mid-century, for instance, it was considered constitutionally acceptable for police to forcibly extract evidence of a person’s illegal drug consumption from his/her body if there was probable cause to believe the person's body contained evidence of a crime. For practical reasons, and reasons of social acceptability, this technique was seldom employed in the standard intoxicated driver case. Thus, driving while intoxicated or “drunk” remained a fairly minor legal matter in Oregon and elsewhere. Without the ability to verify how much alcohol a person had consumed, police tended to arrest only the most obvious offenders. In general, DUII was viewed in Oregon and elsewhere as a moral issue for the offender to resolve rather than one of highway safety. In 1952, the U.S. Supreme Court overruled a criminal conviction that was based upon evidence of drug ingestion derived from forcible stomach pumping. California v. Rochin, 342 US 165 (1952). While later cases upheld the state’s right to continue taking actions of this kind, e.g. Breithaupt v. Abram, 352 US 432 (1957), finding a better way of dealing with intoxicated drivers continued to be an unanswered question both legally and practically. During this same period, another trend was emerging in the field of administrative law. Courts began finding more and more implications of the “liberty” interest in constitutional due process when government authorities tried to take “administrative” actions associated with individual rights and privileges. For instance, in the 1950s loyalty oaths as a basis to deny government employment grabbed the courts’ attention on more than one occasion. By the 1970s, courts were requiring hearings before welfare benefits could be denied, or driver licenses suspended. See e.g., Bell v. Burson, 402 US 535 (1971); Mathews v. Eldridge, 424 US 319 (1976). Yet a third trend was developing in the area of technology. As noted to above, one of the dilemmas posed for police in enforcing early “drunk driving”
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