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In re Suspension of Driving Privileges of Bianco

Court of Appeals of Oregon

July 10, 2013

In the Matter of the Suspension of the Driving Privileges of MARC FRANCIS BIANCO, Petitioner-Respondent,
DRIVER AND MOTOR VEHICLE SERVICES DIVISION (DMV), a division of the Department of Transportation, Respondent-Appellant.

Argued and submitted on December 11, 2012.

Clackamas County Circuit Court CV11050692 Deanne L. Darling, Judge.

Rebecca M. Johansen, Assistant Attorney General, argued the cause for appellant. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Robert G. Thuemmel argued the cause for appellant. With him on the brief was Rankin Johnson IV.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.


The Driver and Motor Vehicle Services Division of the Oregon Department of Transportation (DMV) appeals a circuit court judgment setting aside an administrative order suspending petitioner's driving privileges. The circuit court ruled that DMV had violated one of its own administrative rules, OAR 735-090-0120, which concerns rescheduling a suspension hearing in the event that a subpoenaed officer is unable to attend the hearing. We agree with DMV that the administrative law judge (ALJ) correctly interpreted the applicable administrative rule, but we agree with petitioner that the order issued by the ALJ nonetheless lacks substantial reason and must be remanded for reconsideration. Accordingly, we reverse the judgment of the circuit court, and we remand the judgment with instructions to remand to DMV for further proceedings consistent with this opinion.

Although this case comes to us on appeal from the circuit court, we review the underlying administrative order to determine whether the ALJ correctly interpreted and applied the law and whether the order is supported by substantial evidence. See ORS 813.450(4); Staglin v. DMV, 227 Or.App. 240, 242, 205 P.3d 90, rev den, 346 Or 364 (2009). We state the facts consistently with the ALJ's factual findings, which are not challenged by the parties.

On March 11, 2011, petitioner was arrested for driving under the influence of intoxicants and was subsequently served with a notice of DMV's intent to suspend his driving privileges based on his refusal to take a breath test. See ORS 813.410(1) (providing that, upon receiving a police report of a refusal to take a breath test, DMV shall suspend driving privileges 30 days after arrest, "unless, at a hearing described under this section, [DMV] determines that the suspension would not be valid as described in this section"). Petitioner requested a hearing to challenge that proposed suspension, and a hearing was scheduled for March 31, 2011, before an ALJ from the Office of Administrative Hearings (OAH), which conducts suspension hearings on behalf of DMV.

On March 26, 2011, OAH was informed that the arresting officer, Deputy Steinberg, was unavailable to appear at the March 31 hearing because of a previously approved vacation. Consequently, OAH issued an order stating that "[a] hearing shall be scheduled to determine the validity of the suspension under ORS 813.410 as soon as practicable." The order also rescinded the proposed suspension of petitioner's driving privileges pending the outcome of that later hearing.

On March 31, 2011, OAH sent petitioner a "Notice of Rescheduled Hearing" that set the new hearing date for April 8, 2011. For reasons that do not appear in the record, OAH subsequently informed petitioner and Steinberg that the April 8 hearing was being canceled and rescheduled, despite the fact that petitioner and Steinberg were available that day. OAH then sent out a new "Notice of Rescheduled Hearing, " setting the hearing date for April 27, 2011.

At the outset of the April 27 hearing, petitioner's counsel "move[d] to dismiss this as not timely and outside of our thirty days"--"thirty days" referring to the 30-day window from the time of arrest in which DMV must hold a hearing and issue its suspension order. See ORS 813.410(4)(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 * * *."). Petitioner's counsel explained:

"* * * So, [Steinberg] had been notified of the April 8th date. I had been notified of the April 8th date. * * * The record is not clear why we were waived off or what happened. And, the hearing is somehow on this record mysteriously reset from that date to today's date[.] * * * So, in order to get there, there has to be something in the record and somebody has to have found that April 8th was canceled for an appropriate reason, which may or may not constitute an error of the Department under [OAR 73-090-0000(2)], where error of the Department is defined. Usually, there is a finding on that in order to perpetuate the life of a hearing. This record that you were provided, just simply has a gap in it. It didn't even provide you, I guess, with the April 8th, 2011, hearing notice * * *. [Steinberg] knew about it, I knew about it, we received a notice of the schedule of that hearing, we were prepared to attend it and you don't have any information on that. I think the burden would be on the Division to show that there had been an error. That hasn't been provided and you haven't been provided with any ALJ's previous order finding an error. So, under ORS 813.440, I think this hearing should be dismissed. That's my motion."

The ALJ took the motion under advisement, and the parties proceeded to the merits of the case.

After the hearing, the ALJ issued a final order that denied petitioner's motion to dismiss and that, on the merits, affirmed the suspension of his driving privileges under the implied-consent law. With respect to the motion to dismiss, the ALJ explained:

"Petitioner, through counsel, made a motion to dismiss, contending that the suspension should be dismissed because the hearing was not held within 30 days of the date of arrest.
"Under ORS 813.410, a person arrested for [driving under the influence of intoxicants] who makes a timely hearing request is entitled to have a hearing and determination on the merits of the proposed suspension of the person's driving privileges within 30 days of the arrest date, unless the provisions of ORS 813.440 are applicable. Under ORS 813.440(1)(d), the Department may provide a hearing to determine the validity of a suspension outside the time requirements of ORS 813.410 due to '[t]he inability of a subpoenaed police officer to appear due to the officer's illness, vacation or official duty conflicts.' OAR 735-090-0120(1), the administrative rule implementing ORS 813.410 and 813.440, also includes an officer's vacation.
"The record reflects that Deputy Steinberg, who was subpoenaed to appear for a hearing on March 31, 2011, was unable to attend the hearing on that date because he had employer-approved vacation leave. Therefore, the requirements of ORS 813.440(1)(d) and OAR 735-090-0120 have been met, and the hearing was properly reset. Where, as here, a showing has been made under ORS 813.440, the hearing may be held outside the 30 day time requirement of ORS 813.410.
"As counsel correctly noted, the record does not reflect the reason why OAH moved the rescheduled hearing from April 8, 2011 to April 27, 2011. However, once it has been determined that a subpoenaed police officer was unable to appear at the first scheduled hearing for a reason set out in ORS 813.440(1)(d), there is no set timeline for holding the rescheduled hearing. * * * The applicable administrative rule, OAR 735-090-0120, only requires that 'a hearing will be re-scheduled as soon as practicable.' There has been no due process ...

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