Or. Admin. Code § 735-090-0000

Current through Register Vol. 63, No. 11, November 1, 2024

Section 735-090-0000 - Definitions

As used in OAR 735-090-0000 through 735-090-0120, unless the context requires otherwise:

(1) "Agency" means Driver and Motor Vehicle Services Division (DMV) of the Oregon Department of Transportation.

(2) "Error of the Department," as used in ORS 813.440(1)(c), means:

(a) An act or omission of the agency or OAH, which by its occurrence, prevented the petitioning party from participating in a recorded or reported hearing that determines the validity of a suspension of driving privileges; or

(b) An act or omission of the agency or OAH in issuing a subpoena to a witness, including a police officer, to a recorded or reported hearing that determines the validity of a suspension of driving privileges and where the witness' participation at the reported or recorded hearing is required in order for the agency to establish the required elements under ORS 813.410(7); or

(c) An act or omission of the agency or OAH in issuing a subpoena to a necessary witness where:

(A) The agency receives the petitioning party's request to subpoena a necessary witness more than 72 hours prior to the time and date that a recorded or reported hearing that determines the validity of a suspension of driving privileges is scheduled; and

(B) The act or omission, by its occurrence, prevented the necessary witness from participating in the hearing; or

(d) An act or omission of the agency or OAH that prevents a recorded or reported hearing that determines the validity of a suspension of driving privileges from being conducted.

(3) "In-person hearing" means that at least one of the petitioning party and at least one agency witness are present in the same location as the Administrative Law Judge.

(4) "OAH" means the Office of Administrative Hearings when it is performing services on behalf of the agency under OAR chapter 735 division 90.

(5) "Other just cause" as used in ORS 813.440(1)(g) means:

(a) Circumstances beyond the reasonable control of the petitioning party and beyond the ability of a reasonable person to foresee, which:

(A) Prevented the petitioning party from filing a timely request for a hearing as set forth in ORS 813.410(4); or

(B) Prevented the petitioning party from requesting the agency or OAH to subpoena a necessary witness more than 72 hours prior to the time and date that a recorded or reported hearing that determines the validity of a suspension of driving privileges is scheduled; or

(C) Prevented the petitioning party from participating in a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(b) Circumstances where a petitioning party moves for a continuance of a hearing or a request that a necessary witness be subpoenaed to a hearing and, due to circumstances beyond the control of the petitioning party:

(A) The necessary witness does not appear at the hearing because the necessary witness was unknown to the petitioning party prior to a recorded or reported hearing that determines the validity of a suspension of driving privileges; or

(B) The necessary witness does not appear at the hearing and could not be served with a subpoena at least 72 hours prior to a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(c) Circumstances beyond the control of a petitioning party that require a continuance of a hearing because documentary evidence referred to or presented at the hearing by a necessary witness was not provided to the petitioning party either before or during the hearing.

(d) Circumstances beyond the control of the agency or OAH that prevented an administrative law judge from conducting a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(e) Circumstances that require the department to issue a notice of amendment to an Implied Consent Combined Report (Form 735-0075) or Implied Consent Blood Test Failure Report (Form 735-0055) and the petitioning party is unable to file a timely request for hearing as set forth in ORS 813.410(4).

(6) "Necessary witness" means a witness whose testimony is essential to support a material fact or position of the petitioning party. The fact or position to be supported by the necessary witness must be within the scope of an implied consent hearing as set forth in ORS 813.410(7).

(7) "Offense" means the alleged Driving While Under the Influence of Intoxicants incident.

(8) "Petitioner" means the person whose driving privileges may be suspended.

(9) "Petitioning Party" means the petitioner or the petitioner's attorney.

(10) "Received by DMV" means:

(a) Personally delivered to DMV Headquarters. 1905 Lana Ave. NE, Salem, OR;

(b) Delivered by mail to DMV Headquarters, 1905 Lana Ave. NE, Salem, OR 97314;

(c) Received by facsimile machine at telephone number (503) 945-5521; or

(d) Received by electronic mail via the implied consent hearing request form provided on DMV's website - OregonDMV.com.

Or. Admin. Code § 735-090-0000

MV 5-1984, f. 6-29-84, ef. 7-1-84; MV 10-1985, f. 9-19-85, ef. 9-20-85; Administrative Renumbering 3-1988, Renumbered from 735-021-0100; MV 2-1991, f. & cert. ef. 3-18-91; MV 15-1993, f. 10-22-93, cert. ef. 11-4-93; DMV 7-1997, f. & cert. ef. 9-18-97; DMV 21-2002, f. & cert. ef. 11-18-02; DMV 23-2004, f. & cert. ef. 11-17-04; DMV 14-2007, f. & cert. ef. 12-24-07; DMV 24-2010, f. 12-22-10, cert. ef. 1-1-11; DMV 6-2023, minor correction filed 02/23/2023, effective 2/23/2023

Statutory/Other Authority: ORS 184.619, 802.010, 813.410 & 813.440

Statutes/Other Implemented: ORS 813.410 & 813.440