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In re Suspension of Driving Privileges of Amanda Rae Gaylord

Court of Appeals of Oregon

February 23, 2017

In the Matter of the Suspension of the Driving Privileges of Amanda Rae GAYLORD, Petitioner-Respondent,
v.
DRIVER AND MOTOR VEHICLE SERVICES DIVISION (DMV), a Division of the Department of Transportation, Respondent-Appellant.

          Argued and submitted October 6, 2015

         Multnomah County Circuit Court 130405623; Youlee Y. You, Judge.

          Rob 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.

          Daniel C. Lorenz argued the cause and fled the briefs for respondent.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Flynn, Judge.

         Case 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.

         Reversed and remanded with instructions to remand to DMV for further proceedings consistent with this opinion.

          DEVORE, J.

         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 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 suspension order.

         We 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.

         Our 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.

         In 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 disoriented.

         Scott 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.

         At the 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.

         During 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 ...


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