In the Matter of the Suspension of the Driving Privileges of Amanda Rae GAYLORD, Petitioner-Respondent,
DRIVER AND MOTOR VEHICLE SERVICES DIVISION (DMV), a Division of the Department of Transportation, Respondent-Appellant.
and submitted October 6, 2015
County Circuit Court 130405623; Youlee Y. You, Judge.
Wilsey, Assistant Attorney General, argued the cause for
appellant. On the briefs were Ellen F. Rosenblum, Attorney
General, Anna M. Joyce, Solicitor General, and Denise G.
Fjordbeck, Assistant Attorney General.
C. Lorenz argued the cause and fled the briefs for
Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.
Summary: The Driver and Motor Vehicle Services Division (DMV)
appeals from a judgment that set aside an administrative
order that suspended petitioner's driver's license
for one year. The circuit court ruled that an administrative
law judge (ALJ) had improperly excluded evidence of
petitioner's privately obtained urinalysis after her
arrest for driving under the influence of intoxicants, and
that there was no substantial evidence to support the order.
DMV contends that the circuit court erred because the
urinalysis is inadmissible and there is substantial evidence
to support the ALJ's credibility findings and, thus, to
support the order suspending petitioner's license. Held:
The circuit court correctly determined that the ALJ erred by
excluding the urinalysis. Petitioner's urinalysis was
relevant to her ability to recall events and to corroborate
her willingness have given a urine sample if actually advised
that her refusal would result in a driver's license
suspension. However, the circuit court erred when it assessed
the relative credibility of petitioner and the officer. In
its review of an agency's suspension order, the circuit
court was not a trial court in the typical sense. The task of
assessing the competing credibility of petitioner and officer
is a task that remains for the ALJ, as fact finder, after
consideration of the improperly excluded urinalysis.
and remanded with instructions to remand to DMV for further
proceedings consistent with this opinion.
Driver and Motor Vehicle Services Division (DMV) appeals from
a judgment that set aside an administrative order that
suspended petitioner's driver's license for a year.
The circuit court ruled that an administrative law judge
(ALJ) had improperly excluded evidence of a urinalysis of a
sample that petitioner gave the morning after her arrest for
driving under the influence of intoxicants (DUII). Going
further, the circuit court concluded, after taking the
urinalysis into consideration, that there was no substantial
evidence to support the order suspending petitioner's
license. DMV contends that the circuit court erred because
the urinalysis evidence is inadmissible and, in any event,
there is still substantial evidence to support the ALJ's
credibility findings and, therefore, to support the
first conclude that the circuit court correctly determined
that the ALJ erred when excluding the urinalysis evidence. We
next conclude that the circuit court erred by re-evaluating
the competing credibility of petitioner and the arresting
officer. To do so was error because the court's proper
role was a limited role of reviewing an agency decision. We
reverse and remand so that the ALJ, on behalf of DMV, may
make a credibility determination after consideration of all
the evidence, including the improperly excluded urinalysis.
review and that of the circuit court is limited to the record
of the agency's hearing. ORS 813.450(2). Neither we, nor
the circuit court, are the finders of fact. The role of both
courts is to review the DMV order for any errors of law and
to determine whether there is substantial evidence in the
record to support the order. Bianco v. DMV, 257
Or.App. 446, 448, 307 P.3d 470 (2013); see ORS
813.450(4) (providing standards for review). We begin with
the undisputed historical facts found by the ALJ.
March 2013, Officer Scott arrived at the scene of an
accident. A witness reported having seen petitioner's car
"suddenly veer across the lanes of travel and
strike" a parked car. The witness said that petitioner
looked impaired. Scott testified that petitioner showed signs
of impairment: she was unsteady on her feet, her pupils were
constricted, she had facial tremors, her movements were slow,
her speech was slurred, and she appeared dazed and
asked petitioner if she would perform field sobriety tests,
and she initially refused. Scott told petitioner about the
tests and that her refusal to take those tests could be used
against her. Petitioner refused again. Scott arrested her,
and, on the way to the police station, he observed that she
was "nodding off" in the back of the car.
police station, petitioner used her phone. When she was done,
she told the officer that she would agree to perform the
field sobriety tests. Scott administered them. Petitioner
exhibited six out of six possible clues for impairment during
the horizontal gaze nystagmus test, eight out of eight
possible clues for impairment during the walk-and-turn test,
and two out of four possible clues for impairment during the
one-leg stand test.
his discussion with petitioner, Scott relied on the
department's Implied Consent Combined Report (ICCR). That
document contains the admonitions that the implied consent
law requires police to give to a DUII suspect. According to
Scott, his usual practice is to use the ICCR during
discussions with DUII suspects because there is a "long
list" of admonitions to give and it is "easy to
skip one." Scott testified that he usually will put a
check mark next to each paragraph that he has read to a
suspect. In this instance, the document he used has check
marks next to each paragraph in Section I, the section that
contains admonitions relevant to breath tests for impairment.
There are no check marks next to the paragraphs in Section
II, the section with admonitions relevant to urine tests.
Scott asked petitioner to take a breath test. She cooperated,
and the results indicated a blood alcohol content of 0.00
percent alcohol by volume. Scott ...