BROCKLEN N. JOHNSON, Petitioner-Appellant,
DRIVER AND MOTOR VEHICLES SERVICES DIVISION (DMV), a division of the Department of Transportation, Respondent-Respondent
Argued and Submitted: December 6, 2012.
Coos County Circuit Court 11CV0577. Paula M. Bechtold, Judge.
John Henry Hingson, III, argued the cause and filed the briefs for appellant.
Rebecca M. Johansen, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Armstrong, Presiding Judge, and Duncan, Judge, and Brewer, Judge pro tempore.
[261 Or.App. 642] ARMSTRONG, P. J.
The Driver and Motor Vehicle Services Division of the Oregon Department of Transportation (DMV) suspended petitioner's driver's license after he refused to submit to a breath test when he was arrested for driving under the influence of intoxicants (DUII). See ORS 813.410(1) (requiring DMV to suspend a person's driving privileges if notified by police report under ORS 813.120 of the person's refusal to take breath test unless, after hearing, DMV determines the suspension to be invalid). The circuit court affirmed the final order of suspension issued by an administrative law judge (ALJ), and petitioner appeals that judgment. We conclude that DMV erred in determining that the arresting officer's jury duty was an " official duty conflict" justifying postponement of the suspension hearing under ORS 813.440(1)(d). Accordingly, we reverse petitioner's license suspension. ORS 813.450(4)(a)(A); Hays v. DMV, 230 Or.App. 559, 563, 216 P.3d 902 (2009) (reversing suspension of driving privileges, citing principle that, when an administratively imposed penalty is based on a legally unauthorized procedure, the penalty is invalid).
The pertinent facts are not in dispute. Petitioner refused to submit to a breath test after being arrested for DUII; consequently, DMV proposed to suspend his driving privileges. ORS 813.410(1). Petitioner requested an administrative hearing to contest the
validity of the proposed suspension, ORS 813.410(3), and the Office of Administrative Hearings (OAH) scheduled a hearing before an ALJ for July 5, 2011. OAH also issued a subpoena to the arresting officer to appear at the hearing.
On June 28, 2011, OAH was notified--via preprinted form--that the officer was unavailable to appear on July 5 due to jury duty in Benton County on that date. An ALJ from OAH subsequently issued an order concluding [261 Or.App. 643] that the officer's inability to attend the hearing was " due to court[,] which constitutes grounds to reschedule under ORS 813.440(1)(d) and OAR 735-090-0120(4)" (footnotes omitted), and ordering that a hearing to determine the validity of the suspension be scheduled " as soon as practicable." The suspension of petitioner's license was rescinded pending the outcome of the rescheduled hearing.
The rescheduled hearing took place on July 14, 2011, before another ALJ. After the hearing, the ALJ issued a final order affirming the suspension of petitioner's license for three years. ORS 813.420(2); ORS 813.430(2). The final order concluded, among other things, that the hearing had been properly reset due to the officer's scheduling conflict. Petitioner sought judicial review in circuit court, ORS 813.410(8), and the court affirmed the suspension. Petitioner appeals that judgment.
We directly review the underlying order to determine whether DMV erroneously interpreted a provision of law and whether the order is supported by substantial evidence. See ORS 813.450(4); Bianco v. DMV, 257 Or.App. 446, 448, 307 P.3d 470 (2013).
A hearing to determine the validity of a suspension of an individual's driver's license must be held according to the time limits in ORS 813.410 unless one of the exceptions in ORS 813.440 applies.Walker v. DMV, 254 Or.App. 543, 545, 295 P.3d 167 (2013); ORS 813.440(1), (2); ORS 813.410(4)(e). The exception ...