Chapter 813 2019 EDITION Driving Under the Influence of Intoxicants GENERAL PROVISIONS 813.010 Driving under the influence of intox- icants; penalty 813.011 Felony driving under the influence of in- toxicants; penalty 813.012 Crime classification for purposes of rules of Oregon Criminal Justice Commission 813.017 Arraignment; booking 813.020 Fee to be paid on conviction; screening and treatment; mandatory imprisonment or community service; attendance at vic- tim impact treatment session; session fee 813.021 Requirements for screening interview and treatment program 813.022 Proof of treatment 813.023 Alternative payment methods for screen- ing interview or treatment program 813.025 Designation of agency to perform screen- ing interview and treatment program; qualifications; rules 813.030 Amount of fee; distribution 813.040 Standards for determination of problem condition involving alcohol, inhalants or controlled substances 813.050 Out-of-service orders for operators of commercial motor vehicles; grounds; du- ration; rules; penalty 813.055 Civil penalty for violation of out-of-service order or notice IMPLIED CONSENT 813.095 Offense of refusal to take a test for in- toxicants; penalty 813.100 Implied consent to breath or blood test; confiscation of license upon refusal or failure of test 813.110 Temporary permit upon confiscation of li- cense 813.120 Police report to department 813.130 Rights of and consequences for person asked to take test 813.131 Implied consent to urine test; privacy; laboratories for analysis 813.132 Consequences of refusing to take urine test; exception 813.135 Implied consent to field sobriety tests 813.136 Consequence of refusal or failure to sub- mit to field sobriety tests CHEMICAL TESTS; METHODS AND REQUIREMENTS 813.140 Chemical test with consent; unconscious person 813.150 Chemical test at request of arrested per- son 813.160 Methods of conducting chemical analyses; duties of Department of State Police; re- ports; costs PLEA AGREEMENT 813.170 Plea agreement prohibited DIVERSION 813.200 Notice of availability of diversion; peti- tion; form; contents 813.210 Petition; filing fee; screening interview fee; service on prosecutor; objection 813.215 Eligibility for diversion 813.220 Matters to be considered by court in de- termining to allow diversion agreement; reasons for denial 813.222 Right of victim to be present at hearing 813.225 Petition for extension of diversion period; conditions 813.230 Diversion agreement; record; duration; effect of denial 813.233 Exemption from completing treatment program in this state 813.235 Attendance at victim impact treatment session as condition of diversion; fee 813.240 Amount and distribution of filing fee; screening interview fee 813.245 Booking 813.250 Motion to dismiss charge on completion of diversion; admissibility of statements 813.252 Motion to dismiss charge when minimal fine amount remains 813.255 Termination of diversion 813.260 Designation of agencies to perform screening interviews; duties of agency 813.270 Intoxicated Driver Program Fund; cre- ation; uses EVIDENCE 813.300 Use of blood alcohol percentage as evi- dence; percentage required for being un- der the influence 813.310 Refusal to take chemical test admissible as evidence 813.320 Effect of implied consent law on evidence 813.322 Department of State Police rules regard- ing breath tests as evidence; validity of officer’s permit 813.324 Use of testimony from implied consent hearing as evidence in prosecution 813.326 Felony driving while under the influence of intoxicants; prior convictions 813.328 Notice of intent to challenge validity of prior convictions SUSPENSION (For Conviction) 813.400 Suspension or revocation upon conviction; duration; review Title 59 Page 1 (2019 Edition)
Transcript
Chapter 8132019 EDITION
Driving Under the Influence of Intoxicants
GENERAL PROVISIONS813.010 Driving under the influence of intox-
icants; penalty813.011 Felony driving under the influence of in-
toxicants; penalty813.012 Crime classification for purposes of rules
of Oregon Criminal Justice Commission813.017 Arraignment; booking813.020 Fee to be paid on conviction; screening
and treatment; mandatory imprisonmentor community service; attendance at vic-tim impact treatment session; session fee
813.021 Requirements for screening interview andtreatment program
813.022 Proof of treatment813.023 Alternative payment methods for screen-
ing interview or treatment program813.025 Designation of agency to perform screen-
ing interview and treatment program;qualifications; rules
813.030 Amount of fee; distribution813.040 Standards for determination of problem
DRIVING UNDER THE INFLUENCE OF INTOXICANTS 813.011
GENERAL PROVISIONS813.010 Driving under the influence of
intoxicants; penalty. (1) A person commitsthe offense of driving while under the influ-ence of intoxicants if the person drives a ve-hicle while the person:
(a) Has 0.08 percent or more by weightof alcohol in the blood of the person asshown by chemical analysis of the breath orblood of the person made under ORS 813.100,813.140 or 813.150;
(b) Is under the influence of intoxicatingliquor, cannabis, a controlled substance oran inhalant; or
(c) Is under the influence of any combi-nation of intoxicating liquor, cannabis, acontrolled substance and an inhalant.
(2) A person may not be convicted ofdriving while under the influence of intox-icants on the basis of being under the influ-ence of a controlled substance or an inhalantunless the fact that the person was under theinfluence of a controlled substance or aninhalant is pleaded in the accusatory instru-ment and is either proved at trial or is ad-mitted by the person through a guilty plea.
(3) A person convicted of the offense de-scribed in this section is subject to ORS813.020 in addition to this section.
(4) Except as provided in subsection (5)of this section, the offense described in thissection, driving while under the influence ofintoxicants, is a Class A misdemeanor and isapplicable upon any premises open to thepublic.
(5)(a) Driving while under the influenceof intoxicants is a Class C felony if the cur-rent offense was committed in a motor vehi-cle and the person has, at least three timesin the 10 years prior to the date of the cur-rent offense, been convicted of, or been foundto be within the jurisdiction of the juvenilecourt for an act that if committed by anadult would be, any of the following offensesin any combination:
(A) Driving while under the influence ofintoxicants in violation of:
(i) This section; or(ii) The statutory counterpart to this
section in another jurisdiction.(B) A driving under the influence of in-
toxicants offense in another jurisdiction thatinvolved the impaired driving or operation ofa vehicle, an aircraft or a boat due to the useof intoxicating liquor, cannabis, a controlledsubstance, an inhalant or any combinationthereof.
(C) A driving offense in another jurisdic-tion that involved operating a vehicle, an
aircraft or a boat while having a blood alco-hol content above that jurisdiction’s permis-sible blood alcohol content.
(b) For the purposes of paragraph (a) ofthis subsection, a conviction or adjudicationfor a driving offense in another jurisdictionbased solely on a person under 21 years ofage having a blood alcohol content that islower than the permissible blood alcoholcontent in that jurisdiction for a person 21years of age or older does not constitute aprior conviction or adjudication.
(6) In addition to any other sentence thatmay be imposed, the court shall impose oneor more of the following fines on a personconvicted of driving while under the influ-ence of intoxicants as follows:
(a) For a person’s first conviction, aminimum of $1,000.
(b) For a person’s second conviction, aminimum of $1,500.
(c) For a person’s third or subsequentconviction, a minimum of $2,000 if the personis not sentenced to a term of imprisonment.
(d) For a person who drives a vehiclewhile the person has 0.15 percent or more byweight of alcohol in the blood of the personas shown by chemical analysis of the breathor blood of the person made under ORS813.100, 813.140 or 813.150, a minimum of$2,000.
(7) Notwithstanding ORS 161.635, $10,000is the maximum fine that a court may imposeon a person convicted of driving while underthe influence of intoxicants if:
(a) The current offense was committed ina motor vehicle; and
(b) There was a passenger in the motorvehicle who was under 18 years of age andwas at least three years younger than theperson driving the motor vehicle. [1983 c.338§587; 1985 c.16 §293; 1987 c.138 §5; 1991 c.835 §7; 1999c.619 §3; 1999 c.1049 §1; 2003 c.14 §495; 2003 c.445 §1; 2007c.879 §3; 2009 c.525 §1; 2009 c.613 §1; 2017 c.21 §80]
813.011 Felony driving under the in-fluence of intoxicants; penalty. (1) Drivingunder the influence of intoxicants under ORS813.010 shall be a Class C felony if the de-fendant has been convicted of driving underthe influence of intoxicants in violation ofORS 813.010, or its statutory counterpart inanother jurisdiction, at least two times inthe 10 years prior to the date of the currentoffense.
(2) Once a person has been sentenced fora Class C felony under this section, the10-year time limitation is eliminated and anysubsequent episode of driving under the in-fluence of intoxicants shall be a Class C fel-ony regardless of the amount of time whichintervenes.
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813.012 OREGON VEHICLE CODE
(3) Upon conviction for a Class C felonyunder this section, the person shall be sen-tenced to a mandatory minimum term of in-carceration of 90 days, without reduction forany reason. [2011 c.1 §3; 2011 c.598 §2]
Note: 813.011 was enacted into law but was notadded to or made a part of the Oregon Vehicle Code orany chapter or series therein by law. See Preface toOregon Revised Statutes for further explanation.
813.012 Crime classification for pur-poses of rules of Oregon Criminal JusticeCommission. (1) The Oregon Criminal Jus-tice Commission shall classify felony drivingwhile under the influence of intoxicants thatis committed under the circumstances de-scribed in ORS 813.010 (5) as crime category6 of the rules of the Oregon Criminal JusticeCommission.
(2) In determining criminal history for aperson convicted of a felony that has opera-tion of a motor vehicle as an element, or ofa felony that involved death, injury or prop-erty damage caused by the use of a motorvehicle, the commission shall:
(a) Consider two prior convictions ofmisdemeanor driving while under the influ-ence of intoxicants to be equivalent to oneconviction of felony driving while under theinfluence of intoxicants; and
(b) Consider felony driving while underthe influence of intoxicants to be a personfelony and consider misdemeanor drivingwhile under the influence of intoxicants tobe a person Class A misdemeanor. [1999 c.1049§3; 2011 c.598 §1]
813.017 Arraignment; booking. When aperson is arraigned on a charge of drivingwhile under the influence of intoxicants inviolation of ORS 813.010, a court shall en-sure that the defendant submits to booking,if the person has not already been booked onthat charge. [2015 c.145 §2]
813.020 Fee to be paid on conviction;screening and treatment; mandatory im-prisonment or community service; at-tendance at victim impact treatmentsession; session fee. When a person is con-victed of driving while under the influenceof intoxicants in violation of ORS 813.010, acourt shall comply with the following in ad-dition to any fine or other penalty imposedupon the person under ORS 813.010:
(1) The court shall require the person to:(a) Pay to the court the fee described
under ORS 813.030 in addition to any fineimposed under ORS 813.010;
(b) Complete a screening interview and atreatment program as provided in ORS813.021; and
(c) Submit to booking, if the person hasnot already been booked.
(2) The court must impose and not sus-pend execution of a sentence requiring theperson either to serve at least 48 hours’ im-prisonment, which shall be served consec-utively unless justice requires otherwise, orto perform community service for timesspecified by the court under ORS 137.129.For purposes of this subsection:
(a) A court may provide for the impris-onment to be served in jail, minimum secu-rity facilities or inpatient rehabilitation ortreatment centers.
(b) Whenever the judge provides for themandatory imprisonment to be served otherthan consecutively, the judgment must spe-cifically so provide and the judge must statethe reasons in writing.
(3) In a county that has a victim impactprogram a court may require the person toattend a victim impact treatment session. Ifthe court requires attendance under thissection, the court may require the defendantto pay a reasonable fee to the victim impactprogram to offset the cost of the defendant’sparticipation. The fee shall be established foreach county by the victim impact panel co-ordinator and steering committee of thatcounty and shall be not less than $5 or morethan $50. [1983 c.338 §588; 1985 c.16 §294 and former487.549; 1989 c.576 §5; 1991 c.557 §3; 1993 c.13 §4; 1993c.468 §1; 1999 c.126 §1; 2003 c.14 §496; 2015 c.145 §4]
813.021 Requirements for screeninginterview and treatment program. (1)When a court, in accordance with ORS813.020, requires a person to complete ascreening interview and a treatment pro-gram, the court shall require the person todo all of the following:
(a) Complete a screening interview forthe purpose of determining appropriateplacement of the person in a program fortreatment for alcoholism, drug dependencyor dependency on inhalants.
(b) Pay directly to the agency or organ-ization conducting the screening interview afee of $150.
(c) Complete the treatment program towhich the person is referred.
(d) Pay for the treatment program towhich the person is referred.
(2) The screening interview required bythis section shall be conducted by an agencyor organization designated by the court. Thedesignated agency or organization must meetthe standards set by the Director of the Or-egon Health Authority to conduct thescreening interviews. Wherever possible acourt shall designate agencies or organiza-tions to perform the screening interview thatare separate from those that may be desig-nated to carry out a treatment program.
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(3) An agency or organization doing ascreening interview under this section maynot refer a person to a treatment programthat has not been approved by the Directorof the Oregon Health Authority.
(4) The agency or organization conduct-ing a screening interview under this sectionshall monitor the progress of the person re-ferred to the agency or organization. Theagency or organization shall make a reportto the referring court stating the person’ssuccessful completion or failure to completeall or any part of the screening interview orof the treatment program to which the per-son was referred by the agency or organiza-tion performing the screening interview. Thereport shall be in a form determined byagreement between the court and the agencyor organization providing the screeninginterview. [1999 c.126 §3; 1999 c.619 §8a; 2005 c.303§1; 2009 c.595 §1140; 2015 c.318 §47]
Note: 813.021 was added to and made a part of theOregon Vehicle Code by legislative action but was notadded to ORS chapter 813 or any series therein. SeePreface to Oregon Revised Statutes for further explana-tion.
813.022 Proof of treatment. (1) A per-son who has been convicted of driving whileunder the influence of intoxicants under ORS813.010 shall provide proof to the Departmentof Transportation that the person completeda treatment program to which the personwas referred under ORS 813.021.
(2) The department may not reinstate aperson’s driving privileges unless:
(a) The person has provided proof ofcompleting a treatment program as requiredunder subsection (1) of this section;
(b) The person has an order from thecircuit court of the county in which the per-son was convicted that the person has takensufficient steps to satisfy the requirementunder ORS 813.021 to complete a treatmentprogram; or
(c) Fifteen years have elapsed since thedate of the person’s conviction for drivingwhile under the influence of intoxicants.
(3)(a) If the person is unable to provideproof of completing a treatment program asrequired under subsection (1) of this section,the person may file a motion with the circuitcourt of the county in which the person wasconvicted to show proof that the person hastaken sufficient steps to satisfy the require-ment under ORS 813.021 to complete a treat-ment program. The person shall provide acopy of the motion and any supporting doc-umentation to the district attorney of thecounty. The district attorney may file, within45 days from the date the person files themotion with the court, an objection to themotion.
(b) If the district attorney does not filean objection to the motion, the court shall,without hearing, enter an order that theperson has taken sufficient steps to satisfythe requirement under ORS 813.021 to com-plete a treatment program or, on its ownmotion, conduct a hearing as described insubsection (4) of this section.
(c) Upon timely receipt of an objectionfrom the district attorney, the court shallconduct a hearing.
(4) At a hearing under subsection (3) ofthis section, the court shall determinewhether, considering the totality of the cir-cumstances, the person has taken sufficientsteps such that in the court’s view the per-son has satisfied the requirement under ORS813.021 to complete a treatment program.
(5) If the court determines that the per-son has taken sufficient steps to satisfy therequirement under ORS 813.021 to completea treatment program, the court shall enteran order that the person has taken sufficientsteps to satisfy the requirement under ORS813.021 to complete a treatment program.
(6) When the court enters an order underthis section, the court shall provide a copyof the order to the district attorney.
(7) A court may not enter an order thatthe person has taken sufficient steps to sat-isfy the requirement under ORS 813.021 tocomplete a treatment program if the personhas not started a treatment program. [2012 c.9§2; 2013 c.233 §1]
Note: 813.022 was added to and made a part of theOregon Vehicle Code by legislative action but was notadded to ORS chapter 813 or any series therein. SeePreface to Oregon Revised Statutes for further explana-tion.
813.023 Alternative payment methodsfor screening interview or treatmentprogram. A person required to pay for ascreening interview or treatment programunder ORS 813.021, 813.200, 813.210 or813.240 who is eligible for the state medicalassistance program or is enrolled in a healthbenefit plan, as defined in ORS 743B.005,may utilize the state medical assistance pro-gram or health benefit plan as a third partypayer for the costs of medically necessarychemical dependency services that are cov-ered under the state medical assistance pro-gram or health benefit plan. The personremains responsible for the costs of thescreening interview or treatment program,regardless of the amount of coverage or thefailure of the third party payer to reimburseall of the costs. [2011 c.468 §1; 2013 c.375 §2; 2015c.318 §48]
Note: 813.023 was enacted into law by the Legisla-tive Assembly but was not added to or made a part ofthe Oregon Vehicle Code or any chapter or seriestherein by legislative action. See Preface to Oregon Re-vised Statutes for further explanation.
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813.025 OREGON VEHICLE CODE
813.025 Designation of agency to per-form screening interview and treatmentprogram; qualifications; rules. A courtmay designate a single agency or organiza-tion to perform the screening interviews andtreatment programs described in ORS 813.021and 813.260 (1) when the Director of the Or-egon Health Authority certifies that:
(1) An agency or organization may acceptsuch designations due to the lack of alterna-tive agencies or organizations in the servicearea; or
(2) An agency or organization has appliedto and been authorized by the Oregon HealthAuthority to operate a demonstration projectthat combines screening interviews andtreatment programs. The authority shall byrule set forth the conditions under which ademonstration project may be authorized.[1991 c.557 §2; 1999 c.126 §4; 2009 c.595 §1141; 2015 c.318§49]
813.030 Amount of fee; distribution.The fee required by ORS 471.432 and 813.020(1) shall be in the amount of $255, exceptthat the court may waive all or part of thefee in cases involving indigent defendants.The court may make provision for paymentof the fee on an installment basis. A circuitcourt shall deposit the fee in the CriminalFine Account. If the fee is collected in amunicipal or justice court, the fee shall beforwarded by the court to the Department ofRevenue for deposit in the Criminal FineAccount. [1985 c.16 §296; 1987 c.905 §29; 1989 c.576§§6a,7a; 1989 c.635 §§1,3; 1991 c.557 §4; 1993 c.13 §5; 1999c.646 §3; 2009 c.595 §1142; 2011 c.597 §§147,324; 2011 c.671§3; 2012 c.81 §§2,3]
813.040 Standards for determinationof problem condition involving alcohol,inhalants or controlled substances. Thissection establishes, for purposes of ORS471.432 and 807.060, when a person has aproblem condition involving alcohol,cannabis, controlled substances or inhalants.For purposes of ORS 471.432 and 807.060, aperson has a problem condition involving al-cohol, cannabis, controlled substances orinhalants if it is determined that the personhas a problem condition in which theperson’s health or that of others is substan-tially impaired or endangered or the person’ssocial or economic function is substantiallydisrupted because of the person’s:
(1) Habitual or periodic use of:(a) Alcoholic beverages; or(b) Cannabis, unless the person holds a
registry identification card as defined in ORS475B.791; or
(2) Use of or loss of the ability to controlthe use of controlled substances, inhalantsor other substances with abuse potential, in-cluding a condition that may have developed:
(a) A physical dependence in which thebody requires a continuing supply of a con-trolled substance, an inhalant or a drug toavoid characteristic withdrawal symptoms;or
(b) A psychological dependence charac-terized by an overwhelming mental desire forcontinued use of a controlled substance, aninhalant or a drug. [1983 c.338 §589; 1999 c.126 §5;1999 c.619 §9; 1999 c.646 §4; 2017 c.21 §81; 2018 c.76 §14]
813.050 Out-of-service orders for oper-ators of commercial motor vehicles;grounds; duration; rules; penalty. (1) Apolice officer or a person authorized by theDepartment of Transportation to perform ve-hicle safety inspections shall issue an out-of-service order to the operator of a commercialmotor vehicle if any of the following applies:
(a) The person has reasonable grounds tobelieve that the operator has consumed alco-hol or other intoxicating beverage withinfour hours prior to the time the operator be-gan operating the vehicle or at any timewhile operating the vehicle. As used in thisparagraph, “reasonable grounds” includes,but is not limited to, smelling alcohol on thebreath or person of the operator.
(b) A chemical test of the operator’sbreath discloses any amount of alcohol in theblood of the operator.
(c) The operator possesses an intoxicat-ing beverage while operating the vehicle.This subsection does not apply to possessionof an intoxicating beverage that is mani-fested and transported as part of a shipment.
(2) An out-of-service order issued underthis section shall become effective upon itsissuance and shall remain in effect for 24hours.
(3) The Department of Transportationshall adopt rules requiring that any driverissued an out-of-service order under this sec-tion be required to report the order to thedepartment and to the driver’s employer.Rules adopted under this section may in-clude, but need not be limited to, rules spec-ifying the times within which reports mustbe made and the contents of the reports.
(4) Violation of an out-of-service orderissued under this section is a Class A misde-meanor. [1991 c.185 §14; 1993 c.400 §1]
813.055 Civil penalty for violation ofout-of-service order or notice. (1) The De-partment of Transportation shall impose acivil penalty on the operator of a commercialmotor vehicle if:
(a) The operator has violated an out-of-service order issued under ORS 813.050 orany other out-of-service order or notice is-
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DRIVING UNDER THE INFLUENCE OF INTOXICANTS 813.100
sued by the department or an authorizedrepresentative of the department; or
(b) The department receives notificationthat a person has violated any out-of-serviceorder or notice issued by a state or federalagency.
(2) For the purposes of this section, “no-tification” may include, but is not limited to,a record of conviction or a record of a de-termination by a state or federal agency withjurisdiction to determine that the operatorhas violated an out-of-service order or notice.
(3) Civil penalties under this sectionshall be imposed in the manner provided inORS 183.745 and may not be reduced. Thecivil penalties are:
(a) $2,500 for the first violation of anout-of-service order or notice.
(b) $5,000 for a second or subsequent vi-olation of an out-of-service order or notice.[2009 c.395 §14]
Note: 813.055 was added to and made a part of theOregon Vehicle Code by legislative action but was notadded to ORS chapter 813 or any series therein. SeePreface to Oregon Revised Statutes for further explana-tion.
IMPLIED CONSENT813.095 Offense of refusal to take a
test for intoxicants; penalty. (1) A personcommits the offense of refusal to take a testfor intoxicants if the person refuses to:
(a) Take a breath test when requested todo so in accordance with the provisions ofORS 813.100; or
(b) Take a urine test when requested todo so in accordance with the provisions ofORS 813.131 and 813.132.
(2) The offense described in this section,refusal to take a test for intoxicants, is aspecific fine traffic violation. The presump-tive fine for refusal to take a test for intox-icants is $650. The fine described in thissection is in addition to any other conse-quence prescribed by law for refusal to takea test for intoxicants. [2003 c.814 §2; 2009 c.614§1; 2011 c.597 §102]
813.100 Implied consent to breath orblood test; confiscation of license uponrefusal or failure of test. (1) Any personwho operates a motor vehicle upon premisesopen to the public or the highways of thisstate shall be deemed to have given consent,subject to the implied consent law, to achemical test of the person’s breath, or ofthe person’s blood if the person is receivingmedical care in a health care facility imme-diately after a motor vehicle accident, for thepurpose of determining the alcoholic contentof the person’s blood if the person is arrestedfor driving a motor vehicle while under the
influence of intoxicants in violation of ORS813.010 or of a municipal ordinance. A testshall be administered upon the request of apolice officer having reasonable grounds tobelieve the person arrested to have beendriving while under the influence of intox-icants in violation of ORS 813.010 or of amunicipal ordinance. Before the test is ad-ministered the person requested to take thetest shall be informed of consequences andrights as described under ORS 813.130.
(2) If a person refuses to submit to a testunder this section or if a breath test underthis section discloses that the person, at thetime of the test, had a level of alcohol in theperson’s blood that constitutes being underthe influence of intoxicating liquor underORS 813.300 and the person has been in-formed of rights and consequences as pro-vided under ORS 813.130, the person’sdriving privileges are subject to suspensionunder ORS 813.410 and the police officershall do all of the following:
(a) Immediately take custody of anydriver license or permit issued by this stateto the person to grant driving privileges.
(b) Provide the person with a written no-tice of intent to suspend, on forms preparedand provided by the Department of Trans-portation. The written notice shall informthe person of consequences and rights as de-scribed under ORS 813.130.
(c) If the person qualifies under ORS813.110, issue to the person, on behalf of thedepartment, a temporary driving permit de-scribed under ORS 813.110.
(d) Within a period of time required bythe department by rule, report action takenunder this section to the department andprepare and cause to be delivered to the de-partment a report as described in ORS813.120, along with the confiscated license orpermit and a copy of the notice of intent tosuspend.
(3) If a blood test under this section dis-closes that the person, at the time of thetest, had a level of alcohol in the person’sblood that constitutes being under the influ-ence of intoxicating liquor under ORS813.300, the person’s driving privileges aresubject to suspension under ORS 813.410 andthe police officer shall report to the depart-ment within 45 days of the date of arrestthat the person failed the blood test.
(4) Nothing in this section precludes apolice officer from obtaining a chemical testof the person’s breath or blood through anylawful means for use as evidence in a crimi-nal or civil proceeding including, but notlimited to, obtaining a search warrant. [1983c.338 §591; 1985 c.16 §298; 1985 c.672 §19; 1993 c.305 §1;1995 c.568 §1; 2013 c.642 §1; 2019 c.475 §1]
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813.110 OREGON VEHICLE CODE
813.110 Temporary permit upon con-fiscation of license. (1) Except as otherwiseprovided by this section, police officers, onbehalf of the Department of Transportation,shall issue temporary driving permits de-scribed under this section to persons whenrequired under ORS 813.100.
(2) The department shall provide policedepartments and agencies with permits forissuance as required by this section. Thedepartment shall establish the form and con-tent of permits described in this section asthe department determines appropriate, butin a manner consistent with this section.
(3) A permit described in this section issubject to all the following:
(a) Except as provided in paragraph (b)of this subsection, the permit is valid untilthe 30th day after the date of arrest.
(b) During the 12-hour period followingissuance of the permit, the person is subjectto ORS 807.570, and the permit is not a de-fense to a charge under ORS 807.570.
(c) The permit shall be issued withoutpayment of any fee.
(d) The permit grants the same drivingprivileges as those granted by the person’slicense taken into possession under ORS813.100.
(4) A police officer shall not issue a per-mit under this section if:
(a) Driving privileges of the person weresuspended, revoked or canceled at the timethe person was arrested;
(b) The person whose license was takeninto custody was operating on an invalid li-cense;
(c) The person was not entitled to drivingprivileges at the time of the arrest for anyother reason; or
(d) The person holds a license or permitgranting driving privileges that was issuedby another state or jurisdiction and that isnot taken into custody under ORS 813.100.[1985 c.16 §142; 1985 c.672 §17]
813.120 Police report to department.(1) A report required by ORS 813.100 shalldisclose substantially all of the following in-formation:
(a) Whether the person, at the time theperson was requested to submit to a test, wasunder arrest for driving a motor vehiclewhile under the influence of intoxicants inviolation of ORS 813.010 or of a municipalordinance.
(b) Whether the police officer had rea-sonable grounds to believe, at the time therequest was made, that the person arrestedhad been driving under the influence of in-
toxicants in violation of ORS 813.010 or of amunicipal ordinance.
(c) Whether the person refused to submitto a test or if the person submitted to abreath or blood test whether the level of al-cohol in the person’s blood, as shown by thetest, was sufficient to constitute being underthe influence of intoxicating liquor underORS 813.300.
(d) Whether the person was driving acommercial motor vehicle and refused tosubmit to a test or if the person submittedto a breath or blood test whether the levelof alcohol in the person’s blood, as shown bythe test, was 0.04 percent or more by weight.
(e) Whether the person was informed ofconsequences and rights as described underORS 813.130.
(f) Whether the person was given writtennotice of intent to suspend required by ORS813.100 (2)(b).
(g) If the arrested person took a test, astatement that the person conducting thetest was appropriately qualified.
(h) If the arrested person took a test, astatement that any methods, procedures andequipment used in the test comply with anyrequirements under ORS 813.160.
(2) A report required by ORS 813.100 maybe made in one or more forms specified bythe Department of Transportation. [1983 c.338§405; 1985 c.16 §215; 1985 c.672 §20; 1989 c.636 §42; 1993c.305 §3; 1993 c.751 §70; 1995 c.568 §3; 2019 c.475 §12]
813.130 Rights of and consequences forperson asked to take test. This section es-tablishes the requirements for informationabout rights and consequences for purposesof ORS 813.100 and 813.410. The followingapply to the information about rights andconsequences:
(1) The information about rights andconsequences shall be substantially in theform prepared by the Department of Trans-portation. The department may establish anyform it determines appropriate and conven-ient.
(2) Except as provided in subsection (3)of this section, the information about rightsand consequences shall be substantially asfollows:
(a) Driving under the influence of intox-icants is a crime in Oregon, and the personis subject to criminal penalties if a test un-der ORS 813.100 shows that the person isunder the influence of intoxicants. If theperson fails a test, evidence of the failuremay also be offered against the person.
(b) The person will fail a test under ORS813.100 for purposes of criminal penalties ifthe test discloses a blood alcohol content of0.08 percent or more by weight of alcohol in
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the blood of the person as shown by chemicalanalysis of the breath or blood. The personwill fail a test for purposes of the MotoristImplied Consent Law if the test discloses ablood alcohol content of:
(A) 0.08 percent or more by weight of al-cohol in the blood of the person as shown bychemical analysis of the breath or blood ifthe person was not driving a commercialmotor vehicle;
(B) 0.04 percent or more by weight of al-cohol in the blood of the person as shown bychemical analysis of the breath or blood ifthe person was driving a commercial motorvehicle; or
(C) Any amount if the person was under21 years of age.
(c) If the person fails a test under ORS813.100, the person’s driving privileges willbe suspended. The outcome of a criminalcharge for driving under the influence of in-toxicants will not affect the suspension.
(d) If the person fails a breath test underORS 813.100 and has an Oregon driver li-cense or permit, the license or permit willbe taken immediately and, unless the persondoes not currently have full valid drivingprivileges, a temporary driving permit willbe issued to the person.
(e) After taking a test under ORS813.100, the person will have a reasonableopportunity, upon request, for an additionalchemical test for blood alcohol content to beperformed at the person’s own expense by aqualified individual of the person’s choosing.
(f) The person has a right to a hearing tochallenge the validity of the suspension be-fore the suspension becomes effective. Theperson must make a written request to thedepartment for such a hearing. If the personwins at the hearing, the person’s drivingprivileges will not be suspended. If the per-son loses at the hearing, the suspension willremain in effect during any court review ofthe hearing.
(g) If the person is issued a temporarydriving permit under ORS 813.100, the infor-mation provided to the person shall includethe number of hours before the driving per-mit will be effective and the number of daysthe permit will be effective.
(h) The information provided to the per-son shall include the number of days withinwhich a person must request a hearing underORS 813.410.
(i) The information provided to the per-son shall include the number of days withinwhich a hearing under ORS 813.410 will beheld.
(j) The person may possibly qualify for ahardship permit in 30 days if the person fails
a test, depending on the person’s driving re-cord.
(k) If the person is driving a commercialmotor vehicle, and takes a breath or bloodtest under ORS 813.100 after being informedof the rights and consequences under para-graphs (a) to (j) of this subsection, the fol-lowing additional information shall beprovided:
(A) If the level of alcohol in the person’sblood is 0.04 percent or more by weight ofalcohol in the blood of the person as shownby chemical analysis of the breath or blood,the person’s commercial driving privileges orright to apply for commercial driving privi-leges will be suspended and no hardship per-mit authorizing the person to drive acommercial motor vehicle will be issued.
(B) The suspension of the person’s com-mercial driving privileges or right to applyfor commercial driving privileges will be forthe person’s lifetime if the person takes abreath or blood test and the level of alcoholin the person’s blood is 0.04 percent or moreby weight of alcohol in the blood of the per-son as shown by chemical analysis of thebreath or blood and:
(i) The person previously has been con-victed of failure to perform the duties of adriver;
(ii) The person previously has been con-victed of a crime punishable as a felony andthe person was driving a motor vehicle atthe time the offense was committed;
(iii) The person previously has been con-victed of driving a commercial motor vehiclewhile the person’s commercial driving privi-leges or right to apply for commercial driv-ing privileges was suspended or revoked foroffenses committed while operating a com-mercial motor vehicle;
(iv) The person previously has been con-victed of any degree of murder, manslaughteror criminally negligent homicide resultingfrom the operation of a commercial motorvehicle or assault in the first degree result-ing from the operation of a commercial mo-tor vehicle;
(v) The person previously has been con-victed of driving while under the influenceof intoxicants;
(vi) The person’s commercial drivingprivileges previously have been suspended orrevoked for refusal to submit to, or failureof, a breath or blood test under ORS 813.100;or
(vii) The person’s right to apply for com-mercial driving privileges previously hasbeen suspended or revoked for refusal tosubmit to, or failure of, a breath or blood test
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under ORS 813.100 resulting from the opera-tion of a commercial motor vehicle.
(3) A person who refuses to submit to achemical test after being informed of therights and consequences in subsection (2) ofthis section shall be provided additional in-formation, substantially as follows:
(a) If the person refuses to provide con-sent to a breath or blood test, and is there-after requested to provide only physicalcooperation to submit to a breath or bloodtest, and the person refuses to physicallysubmit to a test, evidence of that refusal maybe offered against the person.
(b) If the person refuses to submit to atest under ORS 813.100, the person’s drivingprivileges will be suspended. The outcome ofa criminal charge for driving under the in-fluence of intoxicants will not affect the sus-pension. The suspension will be substantiallylonger if a person refuses a test.
(c) If the person refuses to submit to abreath test under ORS 813.100 and has anOregon driver license or permit, the licenseor permit will be taken immediately and, un-less the person does not currently have fullvalid driving privileges, a temporary drivingpermit will be issued to the person.
(d) If the person refuses to submit to atest under ORS 813.100, the person is not el-igible for a hardship permit for at least 90days, and possibly for three years, dependingon the following factors set forth in ORS813.430:
(A) Whether the person is presently par-ticipating in a driving while under the influ-ence of intoxicants diversion program in thisstate or in any similar alcohol or drug re-habilitation program in this or another ju-risdiction; or
(B) Whether within the five years pre-ceding the date of arrest any of the followingoccurred:
(i) A suspension of the person’s drivingprivileges under ORS 813.410 or 482.540 (1981Replacement Part) became effective;
(ii) The person was convicted of drivingwhile under the influence of intoxicants inviolation of ORS 813.010 or the statutorycounterpart to ORS 813.010 in another juris-diction, as described in ORS 813.430;
(iii) The person was convicted of drivingwhile under the influence of intoxicants inviolation of a municipal ordinance in thisstate or another jurisdiction, as described inORS 813.430; or
(iv) The person commenced participatingin a driving while under the influence of in-toxicants diversion program in this state orin any similar alcohol or drug rehabilitation
program in this or another jurisdiction, asdescribed in ORS 813.430.
(e) If the person refuses to submit to abreath test under ORS 813.100, or refuses toprovide a urine sample under ORS 813.131and 813.132, the person is subject to a fineof at least $500 and not more than $1,000.
(f) The person has a right to a hearing tochallenge the validity of the suspension be-fore the suspension becomes effective. Theperson must make a written request to thedepartment for such a hearing. If the personwins at the hearing, the person’s drivingprivileges will not be suspended. If the per-son loses at the hearing, the suspension willremain in effect during any court review ofthe hearing.
(g) If the person is issued a temporarydriving permit under ORS 813.100, the num-ber of hours before the driving permit willbe effective and the number of days the per-mit will be effective.
(h) The number of days within which aperson must request a hearing under ORS813.410.
(i) The number of days within which ahearing under ORS 813.410 will be held.
(j) The person may possibly qualify for ahardship permit in 30 days if the person failsa test, depending on the person’s driving re-cord.
(k) If the person is driving a commercialmotor vehicle, further information as follows:
(A) If the person refuses to submit to atest under ORS 813.100, the person’s com-mercial driving privileges or right to applyfor commercial driving privileges will besuspended and no hardship permit authoriz-ing the person to drive a commercial motorvehicle will be issued. The suspension willbe substantially longer if the person refusesthe test.
(B) The suspension of the person’s com-mercial driving privileges or right to applyfor commercial driving privileges will be forthe person’s lifetime if the person refuses tosubmit to a test under ORS 813.100 and:
(i) The person previously has been con-victed of failure to perform the duties of adriver;
(ii) The person previously has been con-victed of a crime punishable as a felony andthe person was driving a motor vehicle atthe time the offense was committed;
(iii) The person previously has been con-victed of driving a commercial motor vehiclewhile the person’s commercial driving privi-leges or right to apply for commercial driv-ing privileges was suspended or revoked foroffenses committed while operating a com-mercial motor vehicle;
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(iv) The person previously has been con-victed of any degree of murder, manslaughteror criminally negligent homicide resultingfrom the operation of a commercial motorvehicle or assault in the first degree result-ing from the operation of a commercial mo-tor vehicle;
(v) The person previously has been con-victed of driving while under the influenceof intoxicants;
(vi) The person’s commercial drivingprivileges previously have been suspended orrevoked for refusal to submit to, or failureof, a breath or blood test under ORS 813.100;or
(vii) The person’s right to apply for com-mercial driving privileges previously hasbeen suspended or revoked for refusal tosubmit to, or failure of, a breath or blood testunder ORS 813.100 resulting from the opera-tion of a commercial motor vehicle.
(4) Nothing in this section prohibits thedepartment from providing additional infor-mation concerning rights and consequencesthat the department considers convenient orappropriate. [1985 c.672 §22; 1987 c.673 §3; 1987 c.801§11; 1989 c.171 §92; 1989 c.636 §43; 1991 c.185 §15; 1991c.860 §10; 1993 c.305 §4; 1995 c.568 §4; 2003 c.814 §3; 2005c.649 §28; 2009 c.607 §2; 2009 c.614 §2; 2013 c.237 §27; 2019c.475 §2]
813.131 Implied consent to urine test;privacy; laboratories for analysis. (1) Aperson may be asked to provide a urine sam-ple under ORS 813.140 or subsection (2) ofthis section.
(2) Any person who operates a motor ve-hicle upon premises open to the public or thehighways of this state shall be deemed tohave given consent, subject to the MotoristImplied Consent Law, to a chemical test ofthe person’s urine for the purpose of deter-mining the presence of cannabis, a controlledsubstance or an inhalant in the person’s bodyif the person is arrested for driving whileunder the influence of intoxicants in vio-lation of ORS 813.010 or of a municipal ordi-nance and either:
(a) The person takes the breath test de-scribed in ORS 813.100 and the test disclosesa blood alcohol content of less than 0.08percent; or
(b) The person is involved in an accidentresulting in injury or property damage. Aurine test may be requested under this para-graph regardless of whether a breath test hasbeen requested and regardless of the resultsof a breath test, if one is taken.
(3) A police officer may not request aurine test unless the officer is certified bythe Department of Public Safety Standardsand Training as having completed at leasteight hours of training in recognition of drug
impaired driving and the officer has a rea-sonable suspicion that the person arrestedhas been driving while under the influenceof cannabis, a controlled substance, aninhalant or any combination of cannabis, acontrolled substance, an inhalant and intox-icating liquor.
(4) A person asked to give a urine sampleshall be given privacy and may not be ob-served by a police officer when producing thesample.
(5)(a) At the trial of any civil or criminalaction, suit or proceeding arising out of theacts committed by a person driving a motorvehicle while under the influence of intox-icants, a valid chemical analysis of a person’surine is admissible as evidence and may beused with other evidence, if any, to deter-mine whether the person was driving whileunder the influence of intoxicants.
(b) A chemical analysis of a person’surine is valid if analysis is performed in anaccredited or licensed toxicology laboratory.[1995 c.676 §1; 1999 c.619 §10; 1999 c.752 §1; 2009 c.325§1; 2015 c.11 §1; 2017 c.21 §82; 2019 c.475 §3]
813.132 Consequences of refusing totake urine test; exception. (1) Except asotherwise provided in this section, a refusalto submit to a urine test requested underORS 813.131 shall be treated for all purposesas a refusal to submit to a breath test. Asuspension imposed for refusal to submit toa urine test under ORS 813.131 (2) shall beconsecutive to any other suspension imposedunder the Motorist Implied Consent Law. Ifa person is subject to consecutive suspen-sions, the length of time that must elapsebefore the Department of Transportation mayreinstate driving privileges or issue a hard-ship permit under ORS 813.520 shall be dou-bled.
(2) If a person refuses to submit to aurine test under ORS 813.131 (2), in additionto information described in ORS 813.130, theperson asked to take the test shall be in-formed that if the person refuses to submitto the test, the person’s driving privilegeswill be suspended for the same time periodand with the same consequences as if theperson had refused to submit to the breathtest and that a suspension for refusal tosubmit to the urine test will be consecutiveto any other suspension under the MotoristImplied Consent Law.
(3) Notwithstanding subsection (1) of thissection, no suspension of driving privilegesshall be imposed for refusal to submit to aurine test if the person provides documenta-tion from a physician licensed by this stateshowing that the person has a medical con-dition that makes it impossible for the personto provide a sample. [1995 c.676 §2; 1997 c.25 §3;2019 c.475 §4]
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813.135 Implied consent to fieldsobriety tests. Any person who operates avehicle upon premises open to the public orthe highways of the state shall be deemed tohave given consent to submit to fieldsobriety tests upon the request of a policeofficer for the purpose of determining if theperson is under the influence of intoxicantsif the police officer reasonably suspects thatthe person has committed the offense ofdriving while under the influence of intox-icants in violation of ORS 813.010 or a mu-nicipal ordinance. If the person refuses toconsent to field sobriety tests, the personshall be asked to provide only physical coop-eration to submit to nontestimonial fieldsobriety tests, and the person shall be in-formed of the consequences of failing tophysically submit to those tests under ORS813.136. [1989 c.576 §15; 2019 c.475 §5]
813.136 Consequence of refusal or fail-ure to submit to field sobriety tests. If aperson refuses or fails to physically submitto field sobriety tests as required by ORS813.135 after the person has been informedof the consequences of refusing to submit,evidence of the person’s refusal or failure tophysically submit is admissible in any crimi-nal or civil action or proceeding arising outof allegations that the person was drivingwhile under the influence of intoxicants.[1989 c.576 §14; 2019 c.475 §6]
CHEMICAL TESTS; METHODS AND REQUIREMENTS
813.140 Chemical test with consent;unconscious person. Nothing in ORS813.100, 813.131 or 813.132 is intended topreclude the administration of a chemicaltest described in this section. A police officermay obtain a chemical test of the breath orblood to determine the amount of alcohol inany person’s blood or a test of the person’sblood or urine, or both, to determine thepresence of cannabis, a controlled substanceor an inhalant in the person as provided inthe following:
(1) If, when requested by a police officer,the person expressly consents to such a test.
(2) Notwithstanding subsection (1) of thissection, from a person without the person’sconsent if:
(a) The police officer has probable causeto believe that the person was driving whileunder the influence of intoxicants and thatevidence of the offense will be found in theperson’s blood or urine; and
(b) The person is unconscious or other-wise in a condition rendering the person in-capable of expressly consenting to the testor tests requested. [1983 c.338 §593; 1985 c.16 §299;1999 c.619 §11; 2013 c.642 §2; 2017 c.21 §83; 2019 c.475 §7]
813.150 Chemical test at request ofarrested person. In addition to a chemicaltest of the breath, blood or urine adminis-tered under ORS 813.100 or 813.140, upon therequest of a police officer, a person shall bepermitted upon request, at the person’s ownexpense, reasonable opportunity to have anylicensed physician and surgeon, licensed pro-fessional nurse or qualified technician,chemist or other qualified person of theperson’s own choosing administer a chemicaltest or tests of the person’s breath or bloodfor the purpose of determining the alcoholiccontent of the person’s blood or a chemicaltest or tests of the person’s blood or urine,or both, for the purpose of determining thepresence of cannabis, a controlled substanceor an inhalant in the person. The failure orinability to obtain such a test or tests by aperson shall not preclude the admission ofevidence relating to a test or tests takenupon the request of a police officer. [1983 c.338§594; 1985 c.16 §300; 1999 c.619 §12; 2017 c.21 §84]
813.160 Methods of conducting chemi-cal analyses; duties of Department ofState Police; reports; costs. (1) A chemicalanalysis is valid under ORS 813.300 if:
(a) It is an analysis of a person’s bloodfor alcohol content and is performed in:
(A) A laboratory certified or accreditedunder 42 C.F.R. part 493 and approved fortoxicology testing;
(B) A laboratory licensed under ORS438.110 and approved for toxicology testing;or
(C) A forensic laboratory established bythe Department of State Police under ORS181A.150 that is accredited by a nationalforensic accrediting organization.
(b) It is an analysis of a person’s breathand is performed by an individual possessinga valid permit to perform chemical analysesissued by the Department of State Police andis performed according to methods approvedby the Department of State Police. For pur-poses of this paragraph, the Department ofState Police shall do all of the following:
(A) Approve methods of performingchemical analyses of a person’s breath.
(B) Prepare manuals and conduct coursesthroughout the state for the training of po-lice officers in chemical analyses of aperson’s breath, which courses shall include,but are not limited to, approved methods ofchemical analyses, use of approved equip-ment and interpretation of test results to-gether with a written examination on thesesubjects.
(C) Test and certify the accuracy ofequipment to be used by police officers forchemical analyses of a person’s breath beforeregular use of the equipment and periodically
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thereafter at intervals of not more than 90days. Tests and certification required by thissubparagraph must be conducted by trainedtechnicians. Certification under this subpar-agraph does not require a signed document.
(D) Ascertain the qualifications and com-petence of individuals to conduct chemicalanalyses in accordance with one or moremethods approved by the department.
(E) Issue permits to individuals accordingto their qualifications. Permits may be issuedto police officers only upon satisfactory com-pletion of the prescribed training course andwritten examination. A permit must state themethods and equipment that the police offi-cer is qualified to use. Permits are subject totermination or revocation at the discretionof the Department of State Police.
(2) In conducting a chemical test of theblood, only a duly licensed physician or aperson acting under the direction or controlof a duly licensed physician may withdrawblood or pierce human tissue. A licensedphysician, or a qualified person acting underthe direction or control of a duly licensedphysician, is not civilly liable for withdraw-ing any bodily substance, in a medically ac-ceptable manner, at the request of a peaceofficer.
(3) An individual who performs a chemi-cal analysis of breath or blood under ORS813.100 or 813.140 shall prepare and sign awritten report of the findings of the test thatmust include the identification of the policeofficer upon whose request the test was ad-ministered.
(4) Any individual having custody of thereport mentioned in subsection (3) of thissection shall, upon request of the persontested, furnish that person or that person’sattorney, a copy of the report.
(5) The expense of conducting a chemicaltest as provided by ORS 813.100 or 813.140must be paid by the governmental unit onwhose equipment the test is conducted or bythe governmental unit upon whose requestthe test was administered if no governmentalunit’s equipment is used to conduct the test.[1983 c.338 §173; 1985 c.16 §57; 1985 c.337 §2; 1995 c.351§1; 2003 c.19 §1]
Notwithstanding ORS 135.405 to 135.445, aperson charged with the offense of drivingunder the influence of intoxicants shall notbe allowed to plead “guilty” or “no contest”to any other offense in exchange for a dis-missal of the offense charged. No district at-torney or city attorney shall make anymotion and no judge shall enter any order inderogation of this section. This section does
not prohibit diversion as provided under ORS813.200.
(2) Notwithstanding ORS 135.881 to135.901, a person charged with the offense ofdriving under the influence of intoxicantsshall not be allowed to enter into any pro-gram of supervised performance or diversionexcept as provided under ORS 813.200. [1983c.338 §382; 1999 c.1051 §294]
DIVERSION813.200 Notice of availability of diver-
sion; petition; form; contents. (1) Thecourt shall inform at arraignment a defend-ant charged with the offense of driving whileunder the influence of intoxicants as definedin ORS 813.010 or a city ordinance conform-ing thereto that a diversion agreement maybe available if the defendant meets the crite-ria set out in ORS 813.215 and files with thecourt a petition for a driving while under theinfluence of intoxicants diversion agreement.
(2) The petition forms for a driving whileunder the influence of intoxicants diversionagreement shall be available to a defendantat the court.
(3) The form of the petition for a drivingwhile under the influence of intoxicants di-version agreement and the information andblanks contained therein shall be determinedby the Supreme Court under ORS 1.525. Thepetition forms made available to a defendantby any city or state court shall conform tothe requirements adopted by the SupremeCourt.
(4) In addition to any other informationrequired by the Supreme Court to be con-tained in a petition for a driving while underthe influence of intoxicants diversion agree-ment, the petition shall include:
(a) A plea of guilty or no contest to thecharge of driving while under the influenceof intoxicants signed by the defendant;
(b) An agreement by the defendant tocomplete at an agency or organization desig-nated by the city or state court a screeninginterview to determine the possible existenceand degree of an alcohol or drug abuse prob-lem;
(c) An agreement by the defendant tocomplete, at defendant’s own expense basedon defendant’s ability to pay, the program oftreatment:
(A) Indicated as necessary by the screen-ing interview; or
(B) If ordered by the court under ORS813.640 after the court receives at least twonegative reports;
(d) Except as provided in subsection (5)of this section, an agreement by the defend-ant to not use intoxicants during the diver-
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sion period and to comply fully with the lawsof this state designed to discourage the useof intoxicants;
(e) A notice to the defendant that the di-version agreement will be considered to beviolated if the court receives notice that thedefendant at any time during the diversionperiod committed the offense of driving whileunder the influence of intoxicants or com-mitted a violation of ORS 811.170;
(f) An agreement by the defendant tokeep the court advised of the defendant’scurrent mailing address at all times duringthe diversion period;
(g) A waiver by the defendant of any for-mer jeopardy rights under the federal andstate Constitutions and ORS 131.505 to131.525 in any subsequent action upon thecharge or any other offenses based upon thesame criminal episode;
(h) A sworn statement, as defined in ORS162.055, by the defendant certifying that thedefendant meets the criteria set out in ORS813.215 to be eligible to enter into the driv-ing while under the influence of intoxicantsdiversion agreement;
(i) An agreement by the defendant to paycourt-appointed attorney fees as determinedby the court; and
(j) An agreement by the defendant to payrestitution if ordered by the court under ORS137.108.
(5) A person may use intoxicants duringthe diversion period if:
(a) The person consumes sacramentalwine given or provided as part of a religiousrite or service;
(b) The person has a valid prescriptionfor a substance and the person takes thesubstance as directed; or
(c) The person is using a nonprescriptiondrug, as defined in ORS 689.005, in accor-dance with the directions for use that areprinted on the label for that nonprescriptiondrug. [1983 c.338 §369; 1985 c.16 §191; 1987 c.441 §4; 2003c.816 §1; 2011 c.468 §3; 2013 c.78 §4; 2015 c.318 §50; 2017c.655 §9]
813.210 Petition; filing fee; screeninginterview fee; service on prosecutor; ob-jection. (1) After an accusatory instrumenthas been filed charging the defendant withthe offense of driving while under the influ-ence of intoxicants, a defendant may filewith the court a petition for a driving whileunder the influence of intoxicants diversionagreement described in ORS 813.200. The pe-tition:
(a) Must be filed within 30 days after thedate of the defendant’s first appearance onthe summons, unless a later filing date is al-lowed by the court upon a showing of good
cause. For purposes of this paragraph, thefiling of a demurrer, a motion to suppress ora motion for an omnibus hearing does notconstitute good cause.
(b) Notwithstanding paragraph (a) of thissubsection, may not be filed after entry of aguilty plea or a no contest plea or aftercommencement of any trial on the chargewhether or not a new trial or retrial is or-dered for any reason.
(c) Notwithstanding paragraph (a) of thissubsection, may be filed up to 14 days afterthe date the prosecuting attorney sends thelaboratory test results of the defendant’surine or blood sample analysis to thedefendant’s attorney or, if the defendant isunrepresented, the defendant, if:
(A) The accusatory instrument allegesthat the defendant was driving under the in-fluence of intoxicants and alleges that at thetime the conduct occurred the defendant wasunder the influence of a controlled substanceor an inhalant;
(B) The defendant has not received noticeof what the defendant’s blood alcohol contentwas at the time the conduct occurred or ifat the time the conduct occurred the defend-ant had less than 0.08 percent by weight ofalcohol in the blood; and
(C) A police officer obtained a urine orblood sample from the defendant.
(2) The defendant shall pay to the court,at the time of filing a petition for a drivingwhile under the influence of intoxicants di-version agreement, a filing fee establishedunder ORS 813.240. The court may makeprovision for payment of the filing fee by thedefendant on an installment basis. The courtmay waive all or part of the filing fee incases involving indigent defendants. The fil-ing fee paid to the court under this subsec-tion shall be retained by the court if thepetition is allowed. The filing fee shall bedistributed as provided by ORS 813.240.
(3) The defendant shall pay to the agencyor organization providing the screeninginterview, at the time the petition is allowed,the fee required by ORS 813.240 (3).
(4)(a) Unless otherwise provided underparagraph (b) of this subsection, the defend-ant shall pay to the court any court-appointed attorney fees agreed to under ORS813.200 (4)(i). Payments shall be made priorto the end of the diversion period on aschedule determined by the court.
(b) The court may waive all or part of thecourt-appointed attorney fees agreed to underORS 813.200 (4)(i).
(5) The defendant shall begin paying tothe court any restitution ordered under ORS137.108. Payments shall be made during the
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diversion period on a schedule determined bythe court.
(6) The defendant shall cause a copy ofthe petition for a driving while under theinfluence of intoxicants diversion agreementto be served upon the district attorney orcity attorney. The district attorney or cityattorney may file with the court, within 15days after the date of service, a written ob-jection to the petition and a request for ahearing. [1983 c.338 §370; 1985 c.16 §192; 1987 c.441§5; 1987 c.534 §1; 1993 c.13 §6; 2003 c.816 §2; 2011 c.595§170; 2013 c.78 §5; 2015 c.318 §51; 2017 c.491 §1]
813.215 Eligibility for diversion. (1) Adefendant is eligible for diversion if the de-fendant meets all of the following conditions:
(a) On the date the defendant filed thepetition for a driving while under the influ-ence of intoxicants diversion agreement, thedefendant had no charge, other than thecharge for the present offense, pending for:
(A) An offense of driving while under theinfluence of intoxicants in violation of:
(i) ORS 813.010; or(ii) The statutory counterpart to ORS
813.010 in another jurisdiction;(B) A driving under the influence of in-
toxicants offense in another jurisdiction thatinvolved the impaired driving of a vehicledue to the use of intoxicating liquor,cannabis, a controlled substance, an inhalantor any combination thereof; or
(C) A driving offense in another jurisdic-tion that involved operating a vehicle whilehaving a blood alcohol content above thatjurisdiction’s permissible blood alcohol con-tent.
(b) The defendant has not been convictedof an offense described in paragraph (a) ofthis subsection within the period beginning15 years before the date of the commissionof the present offense and ending on the datethe defendant filed the petition for a drivingwhile under the influence of intoxicants di-version agreement.
(c) The defendant has not been convictedof a felony offense described in ORS 813.010(5)(a).
(d) The defendant was not participatingin a driving while under the influence of in-toxicants diversion program or in any similaralcohol or drug rehabilitation program inthis state or in another jurisdiction on thedate the defendant filed the petition for adriving while under the influence of intox-icants diversion agreement. A defendant isnot ineligible for diversion under this para-graph by reason of participation in a diver-sion program or any similar alcohol or drugrehabilitation program as a result of the
charge for the present offense or a charge forviolation of ORS 471.430.
(e) The defendant did not participate ina diversion or rehabilitation program de-scribed in paragraph (d) of this subsectionwithin the period beginning 15 years beforethe date of the commission of the present of-fense and ending on the date the defendantfiled the petition for a driving while underthe influence of intoxicants diversion agree-ment. A defendant is not ineligible for diver-sion under this paragraph by reason ofparticipation in a diversion program or re-habilitation program described in paragraph(d) of this subsection as a result of thecharge for the present offense or a charge forviolation of ORS 471.430.
(f) The defendant had no charge of an of-fense of aggravated vehicular homicide or ofmurder, manslaughter, criminally negligenthomicide or assault that resulted from theoperation of a motor vehicle pending in thisstate or in another jurisdiction on the datethe defendant filed the petition for a drivingwhile under the influence of intoxicants di-version agreement.
(g) The defendant has not been convictedof an offense described in paragraph (f) ofthis subsection within the period beginning15 years before the date of the commissionof the present offense and ending on the datethe defendant filed the petition for a drivingwhile under the influence of intoxicants di-version agreement.
(h) The defendant did not hold commer-cial driving privileges on the date of thecommission of the offense.
(i) The defendant was not operating acommercial motor vehicle at the time of theoffense.
(j) The present driving while under theinfluence of intoxicants offense did not in-volve an accident resulting in:
(A) Death of any person; or(B) Physical injury as defined in ORS
161.015 to any person other than the defend-ant.
(2) For the purposes of subsection (1)(a)of this section, a conviction for a driving of-fense in another jurisdiction based solely ona person under 21 years of age having ablood alcohol content that is lower than thepermissible blood alcohol content in that ju-risdiction for a person 21 years of age orolder does not constitute a prior conviction.
(3) A defendant is eligible for a secondor subsequent diversion if the defendantmeets all of the conditions of subsection (1)of this section and the defendant has notbeen convicted of any other criminal offenseinvolving a motor vehicle within the period
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beginning 15 years before the date of thecommission of the present offense and endingon the date the defendant filed the petitionfor the second or subsequent driving whileunder the influence of intoxicants diversionagreement. [1987 c.441 §3; 1997 c.749 §5; 1999 c.445§1; 1999 c.1051 §295; 2005 c.649 §29; 2007 c.122 §11; 2007c.867 §14; 2007 c.879 §10; 2009 c.515 §1; 2013 c.134 §1; 2013c.237 §28; 2016 c.24 §62; 2017 c.21 §85]
813.220 Matters to be considered bycourt in determining to allow diversionagreement; reasons for denial. After thetime for requesting a hearing under ORS813.210 has expired with no request for ahearing, or after a hearing requested underORS 813.210, the court shall determinewhether to allow or deny a petition for adriving while under the influence of intox-icants diversion agreement. In making a de-termination under this section, the court:
(1) Shall consider whether the diversionwill be of benefit to the defendant and thecommunity.
(2) May take into consideration whetherthere was an early recognition by the de-fendant during the proceeding that a courseof diagnosis and treatment of problem drink-ing, alcoholism or drug dependency would bebeneficial.
(3) May take into consideration whetherthere is a probability that the defendant willcooperate with the diagnostic assessment andtreatment agencies.
(4) May take into consideration whetherthe defendant will observe the restrictionscontained in the diversion agreement.
(5) May take into consideration whetherthe offense was committed in a motor vehicleand whether there was a passenger in themotor vehicle who was under 18 years of ageand at least three years younger than thedefendant.
(6) Shall deny the petition for a drivingwhile under the influence of intoxicants di-version agreement if the defendant failed toappear at an arraignment on the present of-fense without good cause.
(7) Shall deny the petition for a drivingwhile under the influence of intoxicants di-version agreement if, after the date the de-fendant filed the petition, the defendant wascharged with or convicted of:
(a) An offense of driving while under theinfluence of intoxicants in violation of:
(A) ORS 813.010; or(B) The statutory counterpart to ORS
813.010 in another jurisdiction;(b) A driving under the influence of in-
toxicants offense in another jurisdiction thatinvolved the impaired driving of a vehicledue to the use of intoxicating liquor,
cannabis, a controlled substance, an inhalantor any combination thereof; or
(c) A driving offense in another jurisdic-tion that involved operating a vehicle whilehaving a blood alcohol content above thatjurisdiction’s permissible blood alcohol con-tent.
(8) Shall deny the petition for a drivingwhile under the influence of intoxicants di-version agreement if the defendant partic-ipated in a driving while under the influenceof intoxicants diversion program or in anysimilar alcohol or drug rehabilitation pro-gram, other than a program entered into asa result of the charge for the present offense,in this state or in another jurisdiction afterthe date the defendant filed the petition.
(9) Shall deny the petition for a drivingwhile under the influence of intoxicants di-version agreement if the defendant wascharged with or convicted of an offense ofaggravated vehicular homicide or of murder,manslaughter, criminally negligent homicideor assault that resulted from the operationof a motor vehicle in this state or in anotherjurisdiction after the date the defendant filedthe petition.
(10) Shall deny the petition for a drivingwhile under the influence of intoxicants di-version agreement if the defendant has beenconvicted of a felony offense described inORS 813.010 (5)(a).
(11) For the purposes of subsection (7) ofthis section, may not consider a convictionfor a driving offense in another jurisdictionbased solely on a person under 21 years ofage having a blood alcohol content that islower than the permissible blood alcoholcontent in that jurisdiction for a person 21years of age or older as a prior conviction.
(12) May not deny the petition for adriving while under the influence of intox-icants diversion agreement solely on the ba-sis that the defendant is a member of theArmed Forces of the United States, the re-serve components of the Armed Forces of theUnited States or the National Guard and hasbeen called or demonstrates that the defend-ant will be called to active duty, and themilitary service will impair the defendant’sability to complete the diversion program.[1983 c.338 §371; 1987 c.441 §6; 1997 c.749 §6; 1999 c.1051§296; 2003 c.445 §2; 2007 c.867 §15; 2007 c.879 §7; 2011c.197 §1; 2017 c.21 §86]
813.222 Right of victim to be presentat hearing. (1) If a driving while under theinfluence of intoxicants offense involvesdamage to property of a person other thanthe defendant, the victim of the propertydamage has a right to be present and to beheard at any hearing on a petition for a di-version agreement.
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(2) The district attorney or city attorneyshall notify the victim that the defendantmay be eligible for diversion and that if thereis a hearing on a petition for diversion, thevictim has a right to be present and to beheard at the hearing. [1999 c.445 §3]
813.225 Petition for extension of di-version period; conditions. (1) A defendantmay apply by motion to the court in whicha driving while under the influence of intox-icants diversion agreement described in ORS813.230 was entered for an order extendingthe diversion period:
(a) Within 30 days prior to the end of thediversion period; or
(b) If the defendant is serving on activeduty as a member of the Armed Forces of theUnited States, or is a member of the reservecomponents of the Armed Forces of theUnited States or the National Guard, at anytime prior to the end of the diversion period.
(2) Petition forms for an application foran extension under this section shall beavailable to a defendant at the court.
(3) The form of the petition for an exten-sion under this section shall be determinedby the Supreme Court under ORS 1.525. Thepetition forms made available to a defendantby any city or state court shall conform tothe requirements of the Supreme Court.
(4) The court may grant a petition for anextension filed under this section if the courtfinds that the defendant made a good faitheffort to complete the conditions of the di-version agreement and that the defendantcan complete the conditions of the diversionagreement within the requested extended di-version period.
(5) An extension granted under this sec-tion may be for no more than 180 days fromthe ending date of the original diversion pe-riod or for another time period the court al-lows under subsection (7) of this section.
(6) Except as provided in subsection (7)of this section, a court may grant a defend-ant only one extension of a diversion periodunder this section.
(7) The court may extend the diversionperiod as necessary to allow the defendantsufficient time to complete the conditions ofthe diversion agreement if the defendant:
(a) Is a member of the Armed Forces ofthe United States, the reserve componentsof the Armed Forces of the United States orthe National Guard;
(b) Is on active duty or has received or-ders that the defendant will be called to ac-tive duty; and
(c) Demonstrates that the military ser-vice will impair the defendant’s ability to
complete the conditions of the diversionagreement and no comparable treatment pro-gram described in ORS 813.233 is available.
(8) If the court grants the petition for anextension under this section, the followingapply:
(a) If the defendant fully complies withthe conditions of the diversion agreementwithin the extended diversion period, thecourt may dismiss the charge with prejudiceunder ORS 813.250.
(b) If the court finds that the defendantfailed to comply with the diversion agree-ment within the extended diversion period,the court shall enter the guilty plea or nocontest plea filed as part of the petition fora diversion agreement, shall enter a judg-ment of conviction and shall sentence thedefendant.
(9) If the court denies the petition for anextension under this section, the court shallenter the guilty plea or no contest plea filedas part of the petition for a diversion agree-ment, shall enter a judgment of convictionand shall sentence the defendant. [1997 c.749§7; 2003 c.816 §3; 2011 c.197 §2]
813.230 Diversion agreement; record;duration; effect of denial. (1) When thecourt allows a petition for a driving whileunder the influence of intoxicants diversionagreement filed as provided in ORS 813.210,the judge taking that action shall:
(a) Accept the guilty plea or no contestplea filed as part of the petition for a diver-sion agreement but withhold entry of a judg-ment of conviction; and
(b) Sign the petition and indicate thereonthe date of allowance of the diversion period,the length of the diversion period and thedate upon which the driving while under theinfluence offense occurred.
(2) The petition when signed and datedbecomes the diversion agreement betweenthe defendant and the court. The court shallmake the agreement a part of the record ofthe case. The court shall notify the Depart-ment of Transportation of the diversionagreement in a form agreed to by the de-partment and the State Court Administratorwithin 48 hours after allowing the petition.The department shall make the fact of thediversion agreement a part of the defendant’soperating record.
(3) A driving while under the influenceof intoxicants diversion agreement shall befor a period of one year after the date thecourt allows the petition. During the diver-sion period the court shall stay the drivingwhile under the influence of intoxicants of-fense proceeding pending completion of thediversion agreement or its termination.
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(4) When the court denies a petition fora driving while under the influence of intox-icants diversion agreement, it shall continuethe offense proceeding against the defendant.The guilty plea or no contest plea filed aspart of the petition for the diversion agree-ment may not be used in the offense pro-ceeding under this subsection. [1983 c.338 §372;1985 c.16 §193; 1985 c.710 §7; 1993 c.751 §71; 2003 c.816§4]
813.233 Exemption from completingtreatment program in this state. In lieuof completing a treatment program in thisstate as a part of completing the conditionsof a driving while under the influence of in-toxicants diversion agreement in this state,the court may allow a defendant who is amember of the Armed Forces of the UnitedStates, the reserve components of the ArmedForces of the United States or the NationalGuard and who is serving on active duty toparticipate in a comparable treatment pro-gram conducted by or authorized by a gov-ernment entity in another jurisdiction. [2011c.197 §5]
Note: 813.233 was added to and made a part of theOregon Vehicle Code by legislative action but was notadded to ORS chapter 813 or any series therein. SeePreface to Oregon Revised Statutes for further explana-tion.
813.235 Attendance at victim impacttreatment session as condition of diver-sion; fee. In a county that has a victim im-pact program a court may require as acondition of a driving while under the influ-ence of intoxicants diversion agreement thatthe defendant attend a victim impact treat-ment session. If the court requires attend-ance under this section, the court mayrequire the defendant, as part of the diver-sion agreement, to pay a reasonable fee tothe victim impact program to offset the costof the defendant’s participation. The fee shallbe established for each county by the victimimpact panel coordinator and steering com-mittee of that county and shall be not lessthan $5 or more than $50. [1987 c.830 §2; 1993c.468 §2]
813.240 Amount and distribution offiling fee; screening interview fee. (1) Thefiling fee paid by a defendant at the time offiling a petition for a driving while under theinfluence of intoxicants diversion agreementas provided in ORS 813.210 is $490. A feecollected under this subsection in the circuitcourt shall be deposited by the clerk of thecourt in the Criminal Fine Account. If thefee is collected in a municipal or justicecourt, $290 of the fee shall be forwarded bythe court to the Department of Revenue fordeposit in the Criminal Fine Account, andthe remainder of the fee shall be paid to thecity or county treasurer.
(2) If less than the full filing fee is col-lected under subsection (1) of this section ina municipal or justice court, the money re-ceived shall be allocated first to the Depart-ment of Revenue for deposit in the CriminalFine Account.
(3) In addition to the filing fee undersubsection (1) of this section, the court shallorder the defendant to pay $150 directly tothe agency or organization providing thescreening interview. [1983 c.338 §373; 1985 c.16§194; 1985 c.277 §3; 1987 c.905 §30; 1989 c.576 §§8a,9a; 1989c.635 §§2,4; 1991 c.557 §6; 1993 c.13 §7; 1999 c.1051 §297;2003 c.737 §§71,72; 2005 c.303 §§2,3; 2005 c.702 §§85,86,87;2009 c.595 §1143; 2011 c.595 §§167,186; 2011 c.671 §4; 2012c.81 §§4,5; 2015 c.318 §52]
813.245 Booking. When a court grants apetition for a driving while under the influ-ence of intoxicants diversion agreement, acourt shall ensure that the defendant submitsto booking, if the defendant has not alreadybeen booked on the charge of driving whileunder the influence of intoxicants in vio-lation of ORS 813.010. [2015 c.145 §3]
Note: 813.245 was added to and made a part ofORS chapter 813 by legislative action but was not addedto any smaller series therein. See Preface to OregonRevised Statutes for further explanation.
813.250 Motion to dismiss charge oncompletion of diversion; admissibility ofstatements. (1) At any time after the con-clusion of the period of a driving while underthe influence of intoxicants diversion agree-ment described in ORS 813.230, a defendantwho has fully complied with and performedthe conditions of the diversion agreementmay apply by motion to the court whereinthe diversion agreement was entered for anorder dismissing the charge with prejudice.
(2) The defendant shall cause to beserved on the district attorney or city attor-ney a copy of the motion for entry of an or-der dismissing with prejudice the charge ofdriving while under the influence of intox-icants. The motion shall be served on thedistrict attorney or city attorney at the timeit is filed with the court. The district attor-ney or city attorney may contest the motion.
(3) If the defendant does not appear asprovided by subsection (1) of this sectionwithin six months after the conclusion of thediversion period, and if the court finds thatthe defendant fully complied with and per-formed the conditions of the diversion agree-ment, and if it gives notice of that finding tothe district attorney or city attorney thecourt may on its own motion enter an orderdismissing the charge of driving while underthe influence of intoxicants with prejudice.
(4) No statement made by the defendantabout the offense with which the defendantis charged shall be offered or received in ev-idence in any criminal or civil action orproceeding arising out of the same conduct
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which is the basis of the charge of drivingwhile under the influence of intoxicants, ifthe statement was made during the courseof the screening interview or treatment pro-gram and to a person employed by the pro-gram. [1983 c.338 §374; 1985 c.16 §195; 1987 c.441 §7;2015 c.318 §53]
813.252 Motion to dismiss charge whenminimal fine amount remains. (1) At anytime before entry of a judgment of convictionand within 180 days after the conclusion ofthe period of a driving while under the in-fluence of intoxicants diversion agreementdescribed in ORS 813.230 or an extension de-scribed in ORS 813.225, a defendant who hascomplied with and performed all of the con-ditions of the diversion agreement, exceptthat the defendant owes $500 or less of thefees required under ORS 813.200, 813.210,813.235 and 813.240, may apply by motion tothe court wherein the diversion agreementwas entered for a judgment dismissing withprejudice the charge of driving while underthe influence of intoxicants.
(2) The defendant shall cause to beserved on the district attorney or city attor-ney a copy of the motion for a judgment dis-missing with prejudice the charge of drivingwhile under the influence of intoxicants. Thecopy of the motion shall be served on thedistrict attorney or city attorney at the timethe motion is filed with the court. The dis-trict attorney or city attorney may contestthe motion.
(3) At the hearing on the motion de-scribed in subsection (1) of this section, thecourt shall dismiss with prejudice the chargeof driving while under the influence of in-toxicants, if the defendant pays the balanceof the fees owed by 5 p.m. on the day thehearing is held. The defendant may also paythe balance of the fees owed before the daythe hearing is held.
(4) Before the court dismisses with prej-udice a charge of driving while under theinfluence of intoxicants under this section,the court shall enter a judgment containinga money award, as defined in ORS 18.005, forany remaining amount of restitution owed bythe defendant. [2013 c.78 §3]
Note: 813.252 was added to and made a part ofORS chapter 813 by legislative action but was not addedto any smaller series therein. See Preface to OregonRevised Statutes for further explanation.
813.255 Termination of diversion. (1)At any time before the court dismisses withprejudice the charge of driving while underthe influence of intoxicants, the court on itsown motion or on the motion of the districtattorney or city attorney may issue an orderrequiring the defendant to appear and showcause why the court should not terminate
the diversion agreement. The order to showcause must:
(a) State the reasons for the proposedtermination;
(b) Specify the amount of any fees owedand, if the amount owed is $500 or less, in-form the defendant that the court may dis-miss with prejudice the charge of drivingwhile under the influence of intoxicants ifthe person has complied with and performedall of the conditions of the diversion agree-ment and pays the remaining amount beforeor on the date of the hearing; and
(c) Set an appearance date.(2) The order to show cause shall be
served on the defendant and on thedefendant’s attorney, if any. Service may bemade by first class mail, postage paid, ad-dressed to the defendant at the mailing ad-dress shown on the diversion petition andagreement or at any other address that thedefendant provides in writing to the court.
(3) Except as provided in subsections (4),(5) and (6) of this section, the court shallterminate the diversion agreement and enterthe guilty plea or no contest plea that wasfiled as part of the petition for the diversionagreement if the defendant fails to appear atthe hearing on the order to show cause or if,at the hearing on the order to show cause,the court finds by a preponderance of theevidence that:
(a) The defendant no longer qualifies forthe diversion agreement under the conditionsdescribed in ORS 813.215; or
(b) The defendant failed to fulfill all ofthe terms of the diversion agreement.
(4) If a defendant is a member of theArmed Forces of the United States, the re-serve components of the Armed Forces of theUnited States or the National Guard and ison active duty, the court shall:
(a) Allow the defendant to appear at thehearing by telephone or other communica-tion device approved by the court, if thedefendant’s military service permits such anappearance; or
(b) Stay the termination proceeding if thedefendant’s military service prohibits thedefendant’s appearance by telephone or othercommunication device and prohibits the de-fendant from aiding and assisting the attor-ney who would appear on the defendant’sbehalf.
(5) If the defendant appears at the hear-ing on the order to show cause, the courtshall dismiss with prejudice the charge ofdriving while under the influence of intox-icants if:
(a) The defendant has complied with andperformed all of the conditions of the diver-
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sion agreement except that the defendantowes $500 or less of the fees required underORS 813.200, 813.210, 813.235 and 813.240;and
(b) The defendant pays the balance of thefees owed by 5 p.m. on the day the hearingis held. The defendant may also pay the bal-ance of the fees owed before the day thehearing is held.
(6) A court may not terminate a diversionagreement under this section for failure topay restitution under ORS 137.108 if the de-fendant has otherwise complied with andperformed all of the conditions of the diver-sion agreement.
(7) Before the court dismisses with prej-udice the charge of driving while under theinfluence of intoxicants under this section,the court shall enter a judgment containinga money award, as defined in ORS 18.005, forany remaining amount of restitution owed bythe defendant.
(8) If the court terminates the diversionagreement and enters the guilty plea or nocontest plea, the court may take into accountat time of sentencing any partial fulfillmentby the defendant of the terms of the diver-sion agreement. [1987 c.441 §9; 2003 c.816 §5; 2011c.197 §3; 2013 c.78 §1]
813.260 Designation of agencies toperform screening interviews; duties ofagency. (1) Courts having jurisdiction overdriving while under the influence of intox-icants offenses shall designate agencies ororganizations to perform the screening inter-view and treatment required under drivingwhile under the influence of intoxicants di-version agreements described in ORS 813.200.The designated agencies or organizationsmust meet minimum standards establishedpursuant to ORS 430.357 to perform thescreening interview and treatment of prob-lem drinking, alcoholism and drug depend-ency and must be certified by the Directorof the Oregon Health Authority. Whereverpossible a court shall designate agencies ororganizations to perform the screening inter-view that are separate from those that maybe designated to carry out a program oftreatment.
(2) Monitoring of a defendant’s progressunder a diversion agreement shall be the re-sponsibility of the agency or organizationperforming the screening interview. Theagency or organization shall make a reportto the court stating the defendant’s success-ful completion or failure to complete all orany part of the treatment program specifiedby the screening interview. The form of thereport shall be determined by agreement be-
tween the court and the agency or organiza-tion performing the screening interview. Thecourt shall make the report of the agency ororganization performing the screening inter-view that is required by this subsection apart of the record of the case. [1983 c.338 §375;1991 c.557 §7; 2009 c.595 §1144; 2011 c.673 §43; 2015 c.318§54]
813.270 Intoxicated Driver ProgramFund; creation; uses. The IntoxicatedDriver Program Fund is created to consistof moneys placed in the fund under ORS813.030 and 813.240 or as otherwise providedby law and of gifts and grants made to thefund for carrying out the purposes of thefund. The moneys in the fund may be usedonly for the following purposes:
(1) To pay for providing treatment for in-dividuals who enter diversion agreementsunder ORS 813.200 and who are found to beindigent. Payment for treatment under thissubsection may include treatment for prob-lem drinking, alcoholism or drug dependency.Payment shall be made as provided by theDirector of the Oregon Health Authority byrule to agencies or organizations providingtreatment.
(2) To pay for evaluation as provided bylaw of programs used for diversion agree-ments.
(3) To pay the cost of administration ofthe fund by the Oregon Health Authority.
(4) To pay for materials, resources andtraining supplied by the authority to thosepersons, organizations or agencies perform-ing the screening interviews or providing ed-ucation or treatment to persons underdiversion agreements.
(5) To pay for providing treatment pro-grams required under ORS 813.020 andtreatment or information programs requiredunder ORS 471.432 for individuals who arefound to be indigent.
(6) To pay for special services required toenable a person with a disability, or a personwhose proficiency in the use of English islimited because of the person’s national ori-gin, to participate in treatment programsthat are used for diversion agreements underORS 813.200 or are required under ORS813.020. This subsection applies:
(a) Whether or not the person is indigent;and
(b) Only to special services requiredsolely because of the person’s disability orlimited proficiency in the use of English.[1983 c.338 §141; 1985 c.16 §42; 1989 c.576 §10; 1991 c.557§8; 1993 c.757 §1; 1999 c.126 §6; 1999 c.646 §5a; 2007 c.70§343; 2009 c.595 §1145; 2015 c.318 §55]
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EVIDENCE813.300 Use of blood alcohol percent-
age as evidence; percentage required forbeing under the influence. (1) At the trialof any civil or criminal action, suit or pro-ceeding arising out of the acts committed bya person driving a motor vehicle while underthe influence of intoxicants, if the amount ofalcohol in the person’s blood at the time al-leged is less than 0.08 percent by weight ofalcohol as shown by chemical analysis of theperson’s breath or blood, it is indirect evi-dence that may be used with other evidence,if any, to determine whether or not the per-son was then under the influence of intox-icants.
(2) Not less than 0.08 percent by weightof alcohol in a person’s blood constitutes be-ing under the influence of intoxicating liq-uor.
(3) Notwithstanding subsection (2) of thissection, for purposes of the Motorist ImpliedConsent Law as defined in ORS 801.010, fora person who is under 21 years of age, anyamount of alcohol in the blood constitutesbeing under the influence of intoxicating liq-uor.
(4) Percent by weight of alcohol in theblood shall be based upon grams of alcoholper 100 milliliters of blood or based upongrams of alcohol per 210 liters of breath.[1983 c.338 §590; 1985 c.16 §297; 1989 c.715 §7; 1991 c.860§8; 2011 c.260 §1]
813.310 Refusal to take chemical testadmissible as evidence. If a person refusesto physically submit to a chemical test underORS 813.100 or 813.131, evidence of theperson’s refusal is admissible in any civil orcriminal action, suit or proceeding arisingout of acts alleged to have been committedwhile the person was driving a motor vehicleon premises open to the public or the high-ways while under the influence of intox-icants. [1983 c.338 §595; 1985 c.16 §301; 2019 c.475 §8]
813.320 Effect of implied consent lawon evidence. (1) The provisions of the im-plied consent law, except ORS 813.300, shallnot be construed by any court to limit theintroduction of otherwise competent, rele-vant evidence in any civil action, suit orproceedings or in any criminal action otherthan a violation of ORS 813.010 or a similarmunicipal ordinance in proceedings underORS 813.410.
(2) The provisions of the implied consentlaw shall not be construed by any court tolimit the introduction of otherwise compe-tent, relevant evidence of the amount of al-cohol in the blood of a defendant in aprosecution for driving while under the in-fluence of intoxicants. [1983 c.338 §596; 1985 c.16§302; 1999 c.437 §1; 2019 c.475 §9]
813.322 Department of State Policerules regarding breath tests as evidence;validity of officer’s permit. (1) A courtshall, at the request of a party to the case,admit into evidence, without certification, acopy of administrative rules of the Depart-ment of State Police addressing methods ofconducting chemical tests of a person’sbreath in a proceeding arising from the ar-rest of a person for driving while under theinfluence of intoxicants.
(2) If a police officer testifies in a pro-ceeding arising from the arrest of a personfor driving while under the influence of in-toxicants that the officer has a valid permitto perform analysis of a person’s breath, thedefendant has the burden of moving forwardwith evidence to show that the officer doesnot have a valid permit. [1999 c.446 §2]
Note: 813.322 was added to and made a part of theOregon Vehicle Code by legislative action but was notadded to ORS chapter 813 or any series therein. SeePreface to Oregon Revised Statutes for further explana-tion.
813.324 Use of testimony from impliedconsent hearing as evidence in prose-cution. (1) If the prosecuting attorney or theattorney for the defendant in a prosecutionfor driving while under the influence of in-toxicants obtains a tape or a transcript of ahearing held for the defendant under ORS813.410, the attorney must provide a copy ofthe tape or transcript to the attorney for theother party at least seven days prior to thefirst date set for trial. If the attorney fails tosupply the material in the time required,testimony from the hearing may not be ad-mitted in evidence in the trial for any pur-pose, unless the attorney shows good causefor the failure to make the material avail-able.
(2) The cost of a copy of a tape or tran-script furnished under subsection (1) of thissection shall be borne by the party who re-ceives the copy.
(3) Nothing in this section requires atape to be transcribed by the attorney whois required to provide a tape or transcriptunder subsection (1) of this section. [1999 c.831§3]
Note: 813.324 was enacted into law by the Legisla-tive Assembly but was not added to or made a part ofthe Oregon Vehicle Code or any chapter or seriestherein by legislative action. See Preface to Oregon Re-vised Statutes for further explanation.
813.326 Felony driving while under theinfluence of intoxicants; prior con-victions. (1) In a prosecution for felonydriving while under the influence of intox-icants under ORS 813.010, the state shallplead the prior convictions and shall provethe prior convictions unless the defendantstipulates to that fact prior to trial. If the
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defendant so stipulates and the trial is byjury:
(a) The court shall accept the stipulationregardless of whether or not the state agreesto it;
(b) The defendant’s stipulation to theprior convictions constitutes a judicial ad-mission to that element of the accusatoryinstrument. The stipulation shall be made apart of the record of the case, but shall notbe offered or received in the presence of thejury;
(c) For the purpose of establishing theprior convictions solely as an element of thecrime under ORS 813.010, neither the courtnor the state shall reveal to the jury theprior convictions, but the prior convictionsare established in the record by thedefendant’s stipulation; and
(d) The court shall not submit the accu-satory instrument or evidence of the priorconvictions to the jury.
(2) In a proceeding under ORS 813.010,the state may offer, and the court may re-ceive and submit to the jury, evidence of theprior convictions for impeachment of the de-fendant or another purpose, other than es-tablishing the prior convictions as anelement of the offense, when the evidence ofthe prior convictions is otherwise admissiblefor that purpose. When evidence of the priorconvictions has been admitted by the court,the state may comment upon, and the courtmay give instructions about, the evidence ofthe prior convictions only to the extent thatthe comments or instructions relate to thepurpose for which the evidence was admitted.
(3) When the defendant stipulates to theprior convictions required as an element offelony driving while under the influence ofintoxicants under ORS 813.010, if the juryfinds the defendant guilty upon instructionregarding the balance of the elements of thecrime, the court shall enter a judgment ofguilty of felony driving while under the in-fluence of intoxicants.
(4) As used in this section, “conviction”includes a juvenile adjudication. [1999 c.1049§5; 2009 c.525 §2]
Note: 813.326 was enacted into law by the Legisla-tive Assembly but was not added to or made a part ofthe Oregon Vehicle Code or any chapter or seriestherein by legislative action. See Preface to Oregon Re-vised Statutes for further explanation.
813.328 Notice of intent to challengevalidity of prior convictions. (1) A defend-ant who challenges the validity of prior con-victions alleged by the state as an elementof felony driving while under the influenceof intoxicants must give notice of the intentto challenge the validity of the prior con-victions at least seven days prior to the firstdate set for trial on the felony charge. The
validity of the prior convictions shall be de-termined prior to trial by the court.
(2) As used in this section, “conviction”includes a juvenile adjudication. [1999 c.1049§4; 2009 c.525 §3]
SUSPENSION(For Conviction)
813.400 Suspension or revocation uponconviction; duration; review. (1) Except asprovided in subsection (2) of this section,upon receipt of a record of conviction formisdemeanor driving while under the influ-ence of intoxicants, the Department ofTransportation shall suspend the drivingprivileges of the person convicted. The sus-pension shall be for a period described underSchedule II of ORS 809.428, except the de-partment shall not reinstate any drivingprivileges to the person until the personcomplies with future responsibility filings. Aperson is entitled to administrative reviewunder ORS 809.440 of a suspension imposedunder this subsection.
(2) A person convicted of felony drivingwhile under the influence of intoxicants, ora person convicted of misdemeanor drivingwhile under the influence of intoxicants fora third or subsequent time, is subject to re-vocation of driving privileges as provided inORS 809.235. [1983 c.338 §353(8); 1985 c.16 §166(8);1985 c.393 §10a(8); 1985 c.669 §2a(8); 1991 c.702 §13; 2001c.786 §3; 2003 c.346 §1; 2003 c.402 §40; 2005 c.436 §2]
(Under Implied Consent Law)813.410 Suspension upon receipt of
police report on implied consent test;hearing; validity of suspension; appeal;rules. (1) If the Department of Transporta-tion receives from a police officer a reportthat is in substantial compliance with ORS813.120, the department shall suspend thedriving privileges of the person in this stateon the 30th day after the date of arrest or,if the report indicates that the person faileda blood test, on the 60th day after receipt ofthe report, unless, at a hearing describedunder this section, the department deter-mines that the suspension would not be validas described in this section. A suspension ofdriving privileges imposed under this subsec-tion shall be for a period of time establishedunder ORS 813.420.
(2) If the department receives from a po-lice officer a report under ORS 813.120 andthe person holds commercial driving privi-leges and the person was driving a motorvehicle or commercial motor vehicle and re-
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fused to submit to a test under ORS 813.100or the person was driving a commercial mo-tor vehicle and submitted to a breath orblood test and the person’s blood, as shownby the test, had 0.04 percent or more byweight of alcohol, the department shall sus-pend the person’s commercial driving privi-leges on the 30th day after the date of arrestor, if the report indicates that the personfailed a blood test, on the 60th day after re-ceipt of the report, unless, at a hearing de-scribed under this section, the departmentdetermines that the suspension would not bevalid as described in this section. A com-mercial driving privileges suspension im-posed under this subsection shall be for aperiod of time established under ORS 809.510or 809.520.
(3) If within 10 days from the date of ar-rest, or, if the person fails a blood test,within 10 days from the date the departmentsends notice of suspension, the departmentreceives a request for a hearing from a per-son whose driving privileges or commercialdriving privileges the department proposes tosuspend under this section, the departmentshall provide a hearing in accordance withthis section. The person shall request ahearing in the form and manner prescribedby the department by rule. Except as other-wise provided under this section, a hearingheld by the department under this section issubject to the provisions for contested cases,other than appeal provisions, under ORSchapter 183. The applicable appeal provisionsare as provided under ORS 813.450 and sec-tion 24, chapter 672, Oregon Laws 1985.Notwithstanding ORS 809.430, the depart-ment is not required to give any notice ofintent to suspend or suspension in additionto that provided under ORS 813.100.
(4) Except as provided in subsection (5)of this section, a hearing required by thissection is subject to all of the following:
(a) The hearing shall be conducted by anadministrative law judge assigned from theOffice of Administrative Hearings establishedunder ORS 183.605.
(b) The administrative law judge shallconduct the hearing by telephone or othertwo-way electronic communication device.
(c) The department may authorize theadministrative law judge to issue a final or-der in any case.
(d) A person who requests a hearing un-der this section and who fails, without justcause, to appear personally or through anattorney waives the right to a hearing. If aperson waives a right to a hearing under thisparagraph, the department is not required tomake any showing at hearing.
(e) Except as provided in ORS 813.440 orupon remand under ORS 813.450, the depart-ment shall hold the hearing and issue a finalorder within 30 days of the date of the arrestor, if the person fails a blood test, within 60days from the date the department receivedthe report of the failure.
(f) In connection with the hearing, thedepartment or its authorized representativemay administer oaths and shall issue sub-poenas for the appearance of witnesses bytelephone or other two-way electronic com-munication device at the hearing requestedby the person or the department and theproduction of relevant documents.
(g) The hearing shall be recorded bywhatever means may be determined by thedepartment and shall include testimony andexhibits, if any. The record of the pro-ceedings may not be transcribed unless re-quested by a party to the proceeding.
(5)(a) A person or a police officer mayrequest that a hearing required by this sec-tion be conducted in person.
(b) The department, by rule, shall estab-lish the manner and time limitation require-ments by which a person or a police officermay request that a hearing be conducted inperson.
(c) Unless there is an agreement betweenthe person and the department that thehearing be conducted elsewhere, a hearingrequested under this subsection shall be heldeither in the county where the alleged of-fense occurred or at any place within 100miles of the place where the offense is al-leged to have occurred, as established by thedepartment by rule.
(d) In connection with the hearing, thedepartment or its authorized representativemay administer oaths and shall issue sub-poenas for the attendance of witnesses at thehearing requested under this subsection bythe person and the production of relevantdocuments.
(6) This subsection shall be narrowlyconstrued so as to effect the legislative pur-pose of limiting the scope of hearings underthis section. The scope of a hearing underthis section shall be limited to whether thesuspension is valid as described in this sub-section. A suspension under this section isvalid if all of the following requirementshave been met:
(a) The person, at the time the personwas requested to submit to a test under ORS813.100, was under arrest for driving whileunder the influence of intoxicants in vio-lation of ORS 813.010 or a municipal ordi-nance.
(b) The police had reasonable grounds tobelieve, at the time the request was made,
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that the person arrested had been drivingunder the influence of intoxicants in vio-lation of ORS 813.010 or of a municipal ordi-nance.
(c) The person refused a test under ORS813.100, or took a breath or blood test andthe test disclosed that the level of alcohol inthe person’s blood at the time of the testwas:
(A) 0.08 percent or more by weight if theperson was not driving a commercial motorvehicle;
(B) 0.04 percent or more by weight if theperson was driving a commercial motor ve-hicle; or
(C) Any amount if the person was under21 years of age.
(d) If the report under ORS 813.120 indi-cates that the person was driving a commer-cial motor vehicle, the vehicle was in fact acommercial motor vehicle as defined in ORS801.208.
(e) The person had been informed underORS 813.100 of rights and consequences asdescribed under ORS 813.130.
(f) The person was given written noticerequired under ORS 813.100.
(g) If the person arrested submitted to atest under ORS 813.100, the person adminis-tering the test was qualified to administerthe test under ORS 813.160.
(h) If the person arrested submitted to atest under ORS 813.100, the methods, proce-dures and equipment used in the test com-plied with requirements under ORS 813.160.
(7) A suspension imposed under this sec-tion shall remain in effect pending any ap-peal or remand of a final order issued underthis section and there shall be no stay of thesuspension pending appeal or remand.
(8) Unless a person fails, without justcause, to appear personally or through anattorney at a hearing requested under thissection, a person shall have the right to ap-peal any final order by the department aftera hearing under this section by filing a peti-tion. The following apply to this subsection:
(a) The person shall file the petition inthe circuit court for the county where theperson resides or, if the person does not re-side in Oregon, in the circuit court of thecounty in which the arrest took place within30 days after issuance of the final order ofthe department.
(b) The court upon receipt of the petitionshall set the matter for hearing upon 10days’ notice to the department and the peti-tioner unless hearing is waived by both thedepartment and the petitioner. [1983 c.338 §358;
813.412 Role of police officer in impliedconsent hearing. Notwithstanding ORS9.160 and 9.320, in any hearing under ORS813.410 in which a city attorney or districtattorney does not appear, a police officer ac-tively involved in the investigation of the of-fense may present evidence, examine andcross-examine witnesses and make argumentsrelating to:
(1) The application of statutes and rulesto the facts in the case;
(2) The literal meaning of the statutes orrules at issue in the case;
(3) The admissibility of evidence; and(4) Proper procedures to be used in the
hearing. [1999 c.831 §4; 2010 c.37 §2]Note: 813.412 was enacted into law by the Legisla-
tive Assembly but was not added to or made a part ofthe Oregon Vehicle Code or any chapter or seriestherein by legislative action. See Preface to Oregon Re-vised Statutes for further explanation.
813.420 Duration of suspension for re-fusal or failure of test. When the Depart-ment of Transportation imposes a suspensionunder ORS 813.410, the suspension shall befor a period of time determined according tothe following:
(1) If the suspension is for refusal of atest under ORS 813.100 and the person is notsubject to an increase in the suspension timefor reasons described in ORS 813.430, thesuspension shall be for a period of one year.
(2) If the suspension is for refusal of atest under ORS 813.100 and the person issubject to an increase in the suspension timefor reasons described in ORS 813.430, thesuspension shall be for a period of threeyears.
(3) If the suspension is because a breathor blood test under ORS 813.100 disclosedthat the person had a level of alcohol in theperson’s blood that constituted being underthe influence of intoxicating liquor underORS 813.300 and the person is not subject toan increase in the suspension time for rea-sons described in ORS 813.430, the suspen-sion shall be for a period of 90 days.
(4) If the suspension is because a breathor blood test under ORS 813.100 disclosedthat the person had a level of alcohol in theperson’s blood that constituted being underthe influence of intoxicating liquor underORS 813.300 and the person is subject to anincrease in the suspension time for reasonsdescribed in ORS 813.430, the suspensionshall be for a period of one year. [1985 c.16 §171;1993 c.305 §7; 1995 c.568 §7]
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813.430 Grounds for increase in dura-tion of suspension. This section establishescircumstances under which ORS 813.420 re-quires an increase in the time for suspensionof driving privileges and under which ORS813.520 requires an increase in the time be-fore the Department of Transportation mayissue a hardship permit. A person is subjectto an increase in suspension time under thissection if any of the following apply:
(1) The person is presently participatingin a driving while under the influence of in-toxicants diversion program in this state orin any similar alcohol or drug rehabilitationprogram in this or another jurisdiction.
(2) Within the five years preceding thedate of arrest any of the following occurred:
(a) A suspension of the person’s drivingprivileges under ORS 813.410 or 482.540 (1981Replacement Part) became effective.
(b) The person was convicted of:(A) Driving while under the influence of
intoxicants in violation of:(i) ORS 813.010;(ii) The statutory counterpart to ORS
813.010 in another jurisdiction; or(iii) A municipal ordinance in this state
or another jurisdiction;(B) A driving under the influence of in-
toxicants offense in another jurisdiction thatinvolved the impaired driving of a vehicledue to the use of intoxicating liquor,cannabis, a controlled substance, an inhalantor any combination thereof; or
(C) A driving offense in another jurisdic-tion that involved operating a vehicle whilehaving a blood alcohol content above thatjurisdiction’s permissible blood alcohol con-tent.
(c) The person commenced participatingin a driving while under the influence of in-toxicants diversion program in this state orin any similar alcohol or drug rehabilitationprogram in this or another jurisdiction.
(3) For the purposes of subsection (2)(b)of this section, a conviction for a driving of-fense in another jurisdiction based solely ona person under 21 years of age having ablood alcohol content that is lower than thepermissible blood alcohol content in that ju-risdiction for a person 21 years of age orolder does not constitute a prior conviction.[1985 c.16 §173; 1985 c.672 §15; 1987 c.801 §12; 2007 c.879§8; 2017 c.21 §87]
813.440 Grounds for hearing on valid-ity of suspension; rules. (1) Notwithstand-ing ORS 813.410, the Department ofTransportation may provide a hearing to de-termine the validity of a suspension under
ORS 813.410 only if the time requirementsunder ORS 813.410 could not be met becauseof any of the following:
(a) The person’s physical incapacity, ver-ified by a physician to the satisfaction of thedepartment to be of a nature that wouldprevent the person from making the appro-priate request or attending the hearing.
(b) A death in the immediate family ofthe person, verified to the satisfaction of thedepartment.
(c) An error of the department.(d) The inability of a subpoenaed police
officer to appear due to the officer’s illness,vacation or official duty conflicts. The de-partment shall set forth by rule the condi-tions that constitute “official dutyconflicts.” A hearing may not be rescheduledmore than once for reasons described in thisparagraph.
(e) A request for a change of administra-tive law judge under ORS 183.645.
(f) The inability of the person’s attorneyto appear due to the attorney’s illness, vaca-tion or scheduling conflict arising from othercourt or administrative hearing appearances.A hearing must be rescheduled no later than45 days after the date of the original hearingand may not be rescheduled more than oncefor reasons described in this paragraph.
(g) Other just cause as defined by thedepartment by administrative rule.
(2) A hearing held under this section issubject to the same provisions as a hearingheld under ORS 813.410, except that the de-partment is not required to hold the hearingand make the determination within the timerequired by ORS 813.410.
(3) The granting of a hearing under thissection shall not delay the imposition of asuspension under ORS 813.410 within thetime required under ORS 813.410. However,if a person establishes that the person wasdeprived by either department error or asubpoenaed police officer’s illness, vacationor official duty conflicts of an opportunity toappear at a hearing, the department shallrescind the suspension and shall promptlyschedule a subsequent hearing to determinethe validity of the suspension under ORS813.410. In other cases under this section,when the department is unable to hold thehearing within the time required by ORS813.410, the department shall rescind anysuspension imposed under ORS 813.410 onlyif the department determines, at a hearingheld under this section, that the suspensionwas not valid as described under ORS813.410.
(4) The following apply to this section:
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(a) The department shall issue a final or-der within 10 days after the hearing de-scribed in this section.
(b) If the department has rescinded asuspension under subsection (3) of this sec-tion and if the department, at the hearingdescribed in this section, determines that thesuspension is valid as described under ORS813.410, the department shall reinstate thesuspension effective five days after the finalorder is issued.
(c) Notwithstanding ORS 809.430, no ad-ditional notice or order of suspension needbe given. [1985 c.16 §169; 1985 c.672 §14; 1987 c.272§5; 1993 c.600 §2; 1999 c.831 §1; 2001 c.294 §§9,10; 2003 c.75§68; 2009 c.520 §1]
813.450 Appeal from suspension forrefusal or failure of breath test. (1) Thepetition to the circuit court appealing an or-der of the Department of Transportation af-ter a hearing under ORS 813.410 shall statethe nature of the petitioner’s interest and theground or grounds upon which the petitionercontends the order should be reversed or re-manded.
(2) The court shall conduct the reviewwithout a jury. Review shall be limited tothe record of the department’s hearing.
(3) Any party to the proceedings beforethe circuit court may appeal from the judg-ment of the court to the Court of Appeals.
(4) Upon review in the circuit court andCourt of Appeals, the court may affirm, re-verse or remand the order as follows:
(a) If the court finds that the departmenthas erroneously interpreted a provision oflaw and that a correct interpretation compelsa particular action, it shall:
(A) Set aside or modify the order; or(B) Remand the case to the department
for further action under a correct interpre-tation of the provision of law.
(b) The court shall remand the order tothe department if it finds the department’sexercise of discretion to be any of the fol-lowing:
(A) Outside the range of discretion de-legated to the agency by law.
(B) Inconsistent with a department rule,an officially stated department position, or aprior department practice, if the inconsist-ency is not explained by the department.
(C) Otherwise in violation of a constitu-tional or statutory provision.
(c) The court shall set aside or remandthe order if it finds that the order is notsupported by substantial evidence in the re-cord.
(5) Upon review, the court shall affirmthe department’s order unless the court finds
a ground for setting aside, modifying or re-manding to the department under a specifiedprovision of this section.
(6) In any review under this section, thecourt shall also review de novo determi-nations made by an agency that are subjectto ORS 183.650 (4). [1985 c.672 §23; 1999 c.849§§196,197; 2003 c.75 §69]
813.460 Department procedures uponverification of suspension of driving priv-ileges of wrong person. If the Departmentof Transportation verifies to its satisfactionthat it has suspended the driving privilegesof the wrong person under ORS 813.410 be-cause a person arrested for driving under theinfluence of intoxicants gave false identifica-tion at the time of the arrest, all the follow-ing apply:
(1) The department shall immediatelyrescind the suspension order under the falsename and shall issue a suspension order forthe period set forth in ORS 813.420 to theperson arrested.
(2) The department shall issue the orderin the manner set forth in ORS 809.430.
(3) No further notice of suspension needbe given.
(4) The time limitations in ORS 813.410(1), (2), (3) and (4)(e) do not apply to a sus-pension order issued under this section. [1985c.672 §25; 1989 c.636 §47]
813.470 Department notation on re-cord of person acquitted after suspen-sion. The Department of Transportationshall make a notation on the driving recordof a person indicating that the person wasacquitted of a charge of driving under theinfluence of intoxicants if:
(1) The person’s driving privileges weresuspended because a breath or blood test un-der ORS 813.100 disclosed that the personhad a level of alcohol in the person’s bloodthat constituted being under the influence ofintoxicating liquor under ORS 813.300;
(2) An accusatory instrument was filedcharging the person with driving under theinfluence of intoxicants in violation of ORS813.010 arising out of the same incident thatled to the suspension of the person’s drivingprivileges;
(3) The person was acquitted of thecharge; and
(4) The person presents the departmentwith a certified copy of the judgment of ac-quittal from the court clearly showing thelocation of the court, the date of the arrestand the findings of the court. [1987 c.303 §2; 1993c.305 §8; 1995 c.568 §8]
(Hardship Permits)813.520 Limitations on authority to
issue hardship permit or reinstate drivingprivileges. The Department of Transporta-tion may not reinstate any driving privilegesor issue any hardship permit under ORS807.240 as provided under any of the follow-ing:
(1) For a period of 90 days after the be-ginning of the suspension if the suspensionis for refusal of a test under ORS 813.100 andthe person is not subject to an increase inthe time before a permit may be issued forreasons described in ORS 813.430.
(2) For a period of 30 days after the be-ginning of the suspension if the suspensionis because a breath or blood test under ORS813.100 disclosed that the person had a levelof alcohol in the person’s blood that consti-tuted being under the influence of intoxicat-ing liquor under ORS 813.300 and the personis not subject to an increase in the time be-fore a hardship permit may be issued forreasons described in ORS 813.430.
(3) For a period of one year after the be-ginning of the suspension if the suspensionis because a breath or blood test under ORS813.100 disclosed that the person had a levelof alcohol in the person’s blood that consti-tuted being under the influence of intoxicat-ing liquor under ORS 813.300 and the personis subject to an increase in the time beforea hardship permit may be issued for reasonsdescribed under ORS 813.430.
(4) For a period of three years after thebeginning of the suspension if the suspensionis for refusal of a test under ORS 813.100 andthe person is subject to an increase in thetime before a hardship permit may be issuedfor reasons described in ORS 813.430.
(5) To any person who has a mental orphysical condition or impairment that affectsthe person’s ability to safely operate a motorvehicle.
(6) If the suspension is based upon aconviction for a violation of ORS 813.010 oris imposed under ORS 813.410 based uponORS 813.100 to a person who has availablepublic or private transportation sufficient tofulfill the person’s transportation needs whilethe person is suspended.
(7) For a period of 30 days following im-position of suspension, if the person, withinthe previous year, has been convicted of atraffic crime and the suspension is basedupon a conviction for violation of ORS813.010 or is imposed under ORS 813.410based upon ORS 813.100. [1985 c.16 §148; 1985
means an individual employed by a servicecenter to install, service, maintain, calibrateor remove ignition interlock devices. (2) “Manufacturer’s representative”means a business entity:
(a) That is registered with or authorizedby the Secretary of State to transact busi-ness in this state;
(b) That is designated by an ignitioninterlock device manufacturer to sell, rentor lease a specific ignition interlock devicemodel in Oregon; and
(c) That provides statewide ignitioninterlock device service through the opera-tion of a network of service centers.
(3) “Negative report” includes a reportof tampering with an ignition interlock de-vice, unauthorized removal of an ignitioninterlock device, lockout or a test violationrecorded by an ignition interlock device.
(4) “Service center” means a private en-tity that installs, services, maintains, cali-brates and removes ignition interlock devicesin this state.
(5) “Test violation” means:(a) For a person who is required to use
an ignition interlock device as a conditionof a driving while under the influence of in-toxicants diversion agreement:
(A) An attempt to start a vehicle whilethe person has a blood alcohol contenthigher than 0.02 percent by weight unless asubsequent test performed within 10 minutesregisters a blood alcohol content of 0.02 per-cent by weight or lower and a digital imageconfirms that the same person provided bothsamples; or
(B) Failure to pass a random retest dueto a blood alcohol content higher than 0.02percent by weight unless a subsequent testperformed within 10 minutes registers ablood alcohol content of 0.02 percent byweight or lower and a digital image confirmsthat the same person provided both samples;
(b) For a person who is required to usean ignition interlock device and is not sub-ject to a driving while under the influenceof intoxicants diversion agreement:
(A) An attempt to start a vehicle whilethe person has a blood alcohol level higherthan 0.02 percent by weight unless a subse-quent test performed within 10 minutes reg-
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isters a blood alcohol content of 0.02 percentby weight or lower and a digital image con-firms that the same person provided bothsamples; or
(B) Failure to pass a random retest dueto a blood alcohol content higher than 0.02percent by weight unless a subsequent testperformed within 10 minutes registers ablood alcohol content of 0.02 percent byweight or lower and a digital image confirmsthat the same person provided both samples;or
(c) For any person required to use an ig-nition interlock device, a failure to take arandom retest. [2017 c.655 §2; 2019 c.200 §3]
813.600 Ignition interlock program;rules. (1) The Department of State Police, inconsultation with the Transportation SafetyCommittee, shall establish a program for theuse of ignition interlock devices by personsconvicted of driving while under the influ-ence of intoxicants and granted hardshippermits under ORS 807.240 and by personswho have entered into a driving while underthe influence of intoxicants diversion agree-ment.
(2) The department shall adopt rules thatspecify requirements for ignition interlockdevices that may be used and shall publish alist of devices that meet the requirements.The list may include devices that:
(a) Do not impede the safe operation ofthe vehicle;
(b) Have the fewest opportunities to bebypassed;
(c) Correlate well with established mea-sures of alcohol impairment;
(d) Work accurately and reliably in anunsupervised environment;
(e) Require a deep lung breath sample orother accurate measure of blood alcoholcontent equivalence;
(f) Resist tampering and give evidence iftampering is attempted;
(g) Are difficult to circumvent, and re-quire premeditation to do so;
(h) Minimize inconvenience to a soberuser;
(i) Operate reliably over the range of au-tomobile environments or automobile manu-facturing standards;
(j) Are manufactured by a party who isadequately insured for product liability;
(k) Have a label affixed in a prominentlocation warning that any person tamperingwith, circumventing or otherwise misusingthe device is subject to civil penalty; and
(L) If there is a test violation, record thelocational coordinate information of the ve-
hicle, including latitude and longitude as es-tablished by a global positioning system.
(3) The department shall adopt rules forthe annual testing of ignition interlock de-vices. The rules shall establish standards forthe devices and for the performance of thedevices. [1987 c.746 §1; 1991 c.453 §14; 1993 c.382 §2;2011 c.671 §1; 2017 c.655 §§7,19]
813.602 Circumstances under whichignition interlock device required; ex-emptions; rules. (1) Subject to subsection(2) of this section, when a person is con-victed of driving while under the influenceof intoxicants in violation of ORS 813.010 orof a municipal ordinance, the Department ofTransportation, in addition to any other re-quirement, shall require that the person haveinstalled and be using an approved ignitioninterlock device in any vehicle operated bythe person:
(a) Before the person is eligible for ahardship permit. The requirement is a condi-tion of the hardship permit for the durationof the hardship permit.
(b) For a first conviction, for one yearafter the ending date of the suspension orrevocation caused by the conviction. Vio-lation of the condition imposed under thisparagraph is a Class A traffic violation.
(c) For a second or subsequent con-viction, for two years after the ending dateof the suspension or revocation caused bythe conviction. Violation of the conditionimposed under this paragraph is a Class Atraffic violation.
(2) When a person is convicted of a crimeor multiple crimes as described in this sub-section, the department, in addition to anyother requirement, shall require that theperson have installed and be using an ap-proved ignition interlock device in any vehi-cle operated by the person for five yearsafter the ending date of the longest runningsuspension or revocation caused by any ofthe convictions. Violation of the conditionimposed under this subsection is a Class Atraffic violation. A person is subject to thissubsection when the person is convicted of:
(a) Driving while under the influence ofintoxicants in violation of ORS 813.010 or ofa municipal ordinance and any of the follow-ing crimes as part of the same criminal epi-sode:
(A) Any degree of murder.(B) Manslaughter in the first or second
degree.(C) Criminally negligent homicide.(D) Assault in the first degree.(b) Aggravated vehicular homicide.
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DRIVING UNDER THE INFLUENCE OF INTOXICANTS 813.604
(c) Driving while under the influence ofintoxicants in violation of ORS 813.010 or ofa municipal ordinance and the person’s driv-ing privileges are revoked under ORS 809.235(1)(b) and later ordered restored under ORS809.235 (4).
(3)(a) Except as provided in paragraph (c)of this subsection, as a condition of a drivingwhile under the influence of intoxicants di-version agreement:
(A) The court shall require that an ap-proved ignition interlock device be installedand used in any vehicle operated by the per-son during the period of the agreement whenthe person has driving privileges if:
(i) A chemical test of the person’s breathor blood disclosed a blood alcohol content of0.08 percent or more by weight of alcohol inthe blood of the person as shown by chemicalanalysis of the breath or blood;
(ii) The person refused to submit to achemical test of the person’s breath or blood;or
(iii) A chemical test of the person’sbreath, blood or urine disclosed a blood al-cohol content of more than 0.00 but less than0.08 percent by weight of alcohol in the bloodof the person as shown by chemical analysisof the breath or blood and disclosed thepresence of cannabis, a controlled substanceor an inhalant.
(B) The court may require that an ap-proved ignition interlock device be installedand used in any vehicle operated by the per-son during the period of the agreement whenthe person has driving privileges if the per-son submitted to a chemical test of theperson’s breath, blood or urine and the testdisclosed a blood alcohol content below 0.08percent by weight of alcohol in the blood ofthe person as shown by chemical analysis ofthe breath or blood.
(b) In addition to any action taken underORS 813.255, violation of the condition im-posed under this subsection is a Class Atraffic violation.
(c) A court may exempt a person fromthe condition in a diversion agreement tohave installed and be using an ignitioninterlock device if the court determines thatthe person meets the requirements for amedical exemption in accordance with rulesadopted by the department under this sec-tion. A person granted a medical exemptionunder this paragraph shall carry proof of themedical exemption with the person while op-erating any vehicle.
(4) The department shall adopt rules per-mitting medical exemptions from the re-quirements of installation and use of anignition interlock device under this section.
(5) When a person is required to installan ignition interlock device under subsection(2) of this section, the manufacturer’s repre-sentative providing the device shall providenotice of any installation or removal of thedevice or any tampering with the device to:
(a) The supervising court or to thecourt’s designee, including but not limited toan agency or organization certified by theOregon Health Authority under ORS 813.025;
(b) The district attorney or the cityprosecutor; and
813.603 Waiver of costs of ignitioninterlock device; rules. (1) Except as pro-vided in subsection (2) of this section, if anignition interlock device is ordered or re-quired under ORS 813.602, the person so or-dered or required shall pay to themanufacturer’s representative the reasonablecosts of leasing, installing and maintainingthe device. A payment schedule may be es-tablished for the person by the Departmentof State Police, in consultation with theTransportation Safety Committee.
(2) The department may waive, in wholeor in part, or defer the person’s responsibilityto pay all or part of the costs under subsec-tion (1) of this section if the person meetsthe criteria for indigence established forwaiving or deferring such costs under sub-section (3) of this section. If the person’s re-sponsibility for costs is waived, thennotwithstanding ORS 813.270, the costs de-scribed in subsection (1) of this section mustbe paid from the Intoxicated Driver ProgramFund.
(3) The department, by rule, shall estab-lish criteria and procedures for qualificationto waive or defer costs described under sub-section (1) of this section for indigence. Thecriteria must be consistent with the stan-dards for indigence adopted by the federalgovernment for purposes of the SupplementalNutrition Assistance Program. [2015 c.577 §7;2017 c.655 §§12,20; 2019 c.200 §§8,9]
Note: 813.603 was added to and made a part ofORS chapter 813 by legislative action but was not addedto any smaller series therein. See Preface to OregonRevised Statutes for further explanation.
813.604 Notice of court order; notationon hardship permit; rules. (1) When acourt orders installation of an ignition inter-lock device pursuant to ORS 813.602, thecourt shall send a copy of the order to theDepartment of Transportation. The depart-ment shall note the requirement on the driv-ing record of the person required to installthe device.
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(2) The department may not issue ahardship permit under ORS 807.240 to anyperson who is ordered to install an ignitioninterlock device on the person’s vehicle untilthe person furnishes the department satis-factory proof that the device has been in-stalled on any vehicle owned or operated bythe person. The department shall determineby rule what constitutes satisfactory proofunder this subsection.
(3) When the department issues a hard-ship permit to a person who is required tohave an ignition interlock device, the de-partment shall note on the permit that thedevice is required. The notation constitutesa limitation on the permit and a person whoviolates the limitation is punishable as pro-vided in ORS 811.182 for criminal drivingwhile suspended or revoked. [1987 c.746 §3; 1989c.398 §2; 1997 c.249 §235]
813.606 Exception for employee other-wise required to have device. Notwith-standing ORS 813.604, if a person is required,in the course and scope of the person’s em-ployment, to operate a motor vehicle ownedby the person’s employer, the person mayoperate that vehicle without installation ofan ignition interlock device if:
(1) The employer has been notified:(a) That the employee is operating with
a hardship permit restricted as provided inORS 813.604;
(b) That the employee is operating on afully reinstated license within the first yearfollowing suspension or revocation for theemployee’s first conviction of driving whileunder the influence of intoxicants;
(c) That the employee is operating on afully reinstated license within the secondyear following suspension or revocation forthe employee’s second or subsequent con-viction of driving while under the influenceof intoxicants; or
(d) That the employee has driving privi-leges and is otherwise required to install anignition interlock device as a condition of adriving while under the influence of intox-icants diversion agreement; and
(2) The employee has proof of the notifi-cation and, if applicable, a fully reinstatedlicense in the possession of the employeewhile operating the employer’s vehicle in thecourse of employment. [1987 c.746 §4; 1999 c.770§8; 2001 c.786 §5; 2011 c.355 §17; 2013 c.315 §2]
813.608 Knowingly furnishing motorvehicle without ignition interlock device;penalty. (1) A person commits the offense ofknowingly furnishing a motor vehicle with-out an ignition interlock device to someonewho is not authorized to drive such a vehicleif the person rents, leases, lends or otherwisefurnishes a motor vehicle to someone the
person knows to have been ordered or re-quired under ORS 813.602, to install an ig-nition interlock device, and the motorvehicle is not equipped with such a devicethat is in working order.
(2) The offense described in this section,knowingly furnishing a motor vehicle with-out an ignition interlock device to someonewho is not authorized to drive such a vehi-cle, is a Class A traffic violation. [1987 c.746§5; 1989 c.576 §2]
813.610 Soliciting another to blow intoignition interlock device; penalty. (1) Aperson commits the offense of unlawfully so-liciting another to blow into an ignitioninterlock device or start a motor vehicleequipped with an ignition interlock device ifthe person has such a device as a result ofan order or requirement under ORS 813.602and the person requests or solicits anotherto blow into the device or start the motorvehicle so as to circumvent the device.
(2) The offense described in this section,unlawfully soliciting another to blow into anignition interlock device or start a motorvehicle equipped with an ignition interlockdevice, is a Class A traffic violation. [1987c.746 §6; 1989 c.576 §3]
813.612 Unlawfully blowing into ig-nition interlock device; penalty. (1) A per-son commits the offense of unlawfullyblowing into an ignition interlock device orstarting a motor vehicle equipped with anignition interlock device if, for the purposeof providing an operable motor vehicle forsomeone required under ORS 813.602 to havesuch a device, the person blows into an ig-nition interlock device or starts an automo-bile equipped with the device.
(2) This section does not apply to a per-son who is required to have an ignitioninterlock device and who blows into or startsthe person’s own vehicle that is so equipped.
(3) The offense described in this section,unlawfully blowing into an ignition interlockdevice or starting a motor vehicle equippedwith an ignition interlock device, is a ClassA traffic violation. [1987 c.746 §7]
813.614 Tampering with ignition inter-lock device; penalty. (1) A person commitsthe offense of tampering with an ignitioninterlock device if the person does anythingto a device that was ordered installed pursu-ant to ORS 813.602 that circumvents the op-eration of the device.
(2) The offense described in this section,tampering with an ignition interlock device,is a Class A traffic violation. [1987 c.746 §9]
813.616 Use of certain moneys to payfor ignition interlock program. Notwith-standing ORS 813.270, moneys in the Intox-icated Driver Program Fund may be used to
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pay for administration and evaluation of theignition interlock program established byORS 813.600 to 813.616 and for the costs ofparticipation in the program for indigents.[1987 c.746 §8; 1993 c.382 §4]
813.620 Suspension of driving privi-leges for failing to provide proof of deviceinstallation or for tampering with device.(1) At the end of the suspension or revoca-tion resulting from a conviction for drivingwhile under the influence of intoxicants inviolation of ORS 813.010 or of a municipalordinance, the Department of Transportationshall suspend the driving privileges or rightto apply for driving privileges of a personwho has not submitted proof to the depart-ment that an ignition interlock device hasbeen installed in any vehicle operated by theperson or who tampers with an ignitioninterlock device after it has been installed.
(2) Subject to ORS 813.635, if the depart-ment imposes a suspension under subsection(1) of this section for failing to submit proofof installation, the suspension continues un-til the department receives proof that the ig-nition interlock device has been installed. Ifthe department does not receive proof thatthe ignition interlock device has been in-stalled, the suspension shall continue for:
(a) One year after the ending date of thesuspension resulting from the first con-viction;
(b) Except as provided in paragraph (c)of this subsection, two years after the endingdate of the suspension resulting from a sec-ond or subsequent conviction; or
(c) Five years after the ending date of thelongest running suspension or revocation re-sulting from a conviction described in ORS813.602 (2).
(3) Subject to ORS 813.635, if the depart-ment imposes a suspension under subsection(1) of this section for tampering with an ig-nition interlock device, the suspension con-tinues until:
(a) One year after the ending date of thesuspension resulting from the first con-viction;
(b) Except as provided in paragraph (c)of this subsection, two years after the endingdate of the suspension resulting from a sec-ond or subsequent conviction; or
(c) Five years after the ending date of thelongest running suspension or revocation re-sulting from a conviction described in ORS813.602 (2).
(4) A person whose driving privileges orright to apply for privileges is suspended un-der subsection (1) of this section is entitledto administrative review, as described inORS 809.440. [2015 c.577 §8; 2015 c.577 §12]
813.630 Notice of ignition interlockdevice installation and negative reports.(1) This section applies only to a person whohas had an ignition interlock device installedas a condition of a driving while under theinfluence of intoxicants diversion agreementunder ORS 813.602 (3).
(2) After an ignition interlock device isinstalled, the manufacturer’s representativethat installed the device shall notify:
(a) The court that required the device tobe installed or the court’s designee, includingbut not limited to an agency or organizationcertified by the Oregon Health Authorityunder ORS 813.025; and
(b) The district attorney or cityprosecutor.
(3) Notice of the installation must begiven within seven business days of install-ing the ignition interlock device.
(4) Each time a manufacturer’s represen-tative has access to an ignition interlock de-vice that the manufacturer’s representativeinstalled, the manufacturer’s representativeshall download all reports recorded on thedevice. If the manufacturer’s representativedownloads a negative report, themanufacturer’s representative shall submitthe negative report, in a form prescribed byrule by the department, to:
(a) The court that required the device tobe installed or the court’s designee, includingbut not limited to an agency or organizationcertified by the Oregon Health Authorityunder ORS 813.025;
(b) The district attorney or cityprosecutor; and
(c) The Department of State Police.(5) The manufacturer’s representative
shall submit a negative report as provided insubsection (4) of this section within sevenbusiness days of downloading the report.[2015 c.577 §2; 2017 c.655 §8; 2019 c.200 §10]
813.635 Consequence for negative re-ports generated from ignition interlockdevice; rules. (1) Notwithstanding ORS813.602 (1)(b) or (c), (2) or (3), the require-ment to have an ignition interlock device in-stalled in a vehicle continues until theperson submits to the Department of Trans-portation a certificate from the ignitioninterlock device manufacturer’s represen-tative stating that the device did not recorda negative report for the last 90 consecutivedays of the required installation period. Thedepartment shall remove the ignition inter-lock device requirement from the person’sdriving record as soon as practicable afterthe department receives the certificate.
(2) Except as provided in subsection (3)of this section, if there is a negative report
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during the last 90 consecutive days, the per-son shall continue to use an ignition inter-lock device beyond the period required underORS 813.602 (1)(b) or (c), (2) or (3) until theperson submits a certificate, in a form pre-scribed by rule by the department, to the de-partment from the ignition interlock devicemanufacturer’s representative stating thatthe device has not recorded a negative reportfor 90 consecutive days, beginning on thedate of the most recent negative report.
(3) If there is a negative report duringthe last 90 consecutive days that the personbelieves is in error, the person may requestthat the Department of State Police reviewthe negative report. The department shalladopt rules prescribing the form and mannerfor submitting a request under this subsec-tion. If after review the department deter-mines that the negative report was the resultof an error, the department shall correct thereport and submit a corrected report to theperson or shall direct the manufacturer’srepresentative to correct the report and themanufacturer’s representative shall submitthe corrected report to the person.
(4) This section does not apply to a de-fendant who is granted an order to vacatethe requirement to install an ignition inter-lock device under ORS 813.645. [2015 c.577 §3;2017 c.655 §13; 2019 c.200 §15]
813.640 Additional treatment followingnegative reports. In addition to any otherrequirement to participate in an alcohol ordrug treatment program required by law, ifa court receives at least two negative re-ports, a court may order that the defendantcomplete, at the defendant’s own expensebased on the defendant’s ability to pay, analcohol or drug treatment program. [2017 c.655§10]
813.645 Motion to vacate requirementto install and use ignition interlock de-vice. (1) A defendant may apply by motion tothe court in which a driving while under theinfluence of intoxicants diversion agreementdescribed in ORS 813.230 was entered for anorder vacating the requirement to install anduse an ignition interlock device if the de-fendant:
(a) Has complied with the condition ofthe diversion agreement described in ORS813.602 (3) for at least six consecutivemonths and provides a certificate to thecourt from the ignition interlock devicemanufacturer’s representative stating thatthe device has not recorded a negative re-port; and
(b) The defendant has entered into and isin compliance with any treatment programthat the person is required to participate inas a condition of diversion.
(2) The defendant shall cause to beserved on the district attorney or cityprosecutor a copy of the motion for an ordervacating the requirement to install and usean ignition interlock device under ORS813.602 (3). The copy of the motion shall beserved on the district attorney or cityprosecutor at the time the motion is filedwith the court. The district attorney or cityprosecutor may contest the motion.
(3) The court shall hold a hearing on apetition filed in accordance with subsection(1) of this section. In determining whether togrant the petition, the court shall consider:
(a) The nature of the underlying crimefor which driving privileges were suspended.
(b) The blood alcohol content of the de-fendant at the time of the arrest.
(c) Any other relevant factors.(4) The court may vacate a defendant’s
requirement to install and use an ignitioninterlock device under ORS 813.602 (3) if, af-ter a hearing described in subsection (3) ofthis section, the court finds by a preponder-ance of the evidence that the petitioner:
(a) Has complied with the condition ofthe diversion agreement described in ORS813.602 (3) for at least six consecutivemonths with no negative reports; and
(b) Has entered into and is in compliancewith any treatment program required as acondition of diversion.
(5) When a court vacates a defendant’srequirement to install and use an ignitioninterlock device under ORS 813.602 (3), thecourt shall notify the Department of Trans-portation. [2015 c.577 §4; 2017 c.655 §14; 2019 c.200§7]
813.660 Service center andmanufacturer’s representative certifica-tion; fees; rules. (1) A service center ormanufacturer’s representative may not oper-ate a service center in Oregon unless boththe service center and the manufacturer’srepresentative obtain a certificate from theDepartment of State Police.
(2) A service center and a manufacturer’srepresentative may apply to the departmentfor a certificate under this section. The ap-plication shall be in such form as may bespecified by the department.
(3) The department may issue a certif-icate to a manufacturer’s representative ifthe applicant:
(a) Meets all of the requirements estab-lished by this section and the rules adoptedby the department;
(b) Agrees to provide testimony relatingto any aspect of the installation, service,monitoring, maintenance, calibration, use,
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removal or performance of the ignitioninterlock device at any criminal proceedingor administrative hearing;
(c) Provides service centers statewide, asdefined by the department by rule;
(d) Provides 24-hour telephone assistanceto customers; and
(e) Pays all required fees.(4) The department may issue a certif-
icate to a service center if the applicant:(a) Meets all of the requirements estab-
lished by this section and the rules adoptedby the department;
(b) Utilizes ignition interlock devicetechnicians who meet the minimum stan-dards for qualification as a technician estab-lished by the department by rule and whoundergo a criminal background check underORS 813.665; and
(c) Pays all required fees.(5) The department may adopt rules es-
tablishing additional requirements for issu-ance and renewal of certificates under thissection.
(6) The department may refuse to issueor renew or may suspend or revoke any cer-tificate issued under this section in any casewhere the department finds that the appli-cant or certificate holder has violated orfailed to comply with any rules adopted un-der this section.
(7) A service center or manufacturer’srepresentative shall pay fees to the depart-ment in accordance with a fee schedule es-tablished by the department by rule.
(8) The fees charged under this sectionshall be in an amount adequate to pay alladministrative costs incurred by the depart-ment in administering ORS 813.660 to813.680.
(9) Certificates issued under this sectionare subject to the following:
(a) A certificate shall expire one yearfrom the date of issuance unless renewed ac-cording to the rules of the department.
(b) The department may not issue or re-new a certificate to a service center ormanufacturer’s representative unless the ser-vice center or manufacturer’s representativehas paid all required fees under this section.
(c) A fee for a certificate may not be re-funded in the event any certificate is refused,suspended or revoked.
(10) The department may adopt rules forthe implementation and administration ofORS 813.660 to 813.680. [2017 c.655 §3; 2017 c.655§15; 2019 c.200 §§1,2]
813.665 Criminal background check fortechnicians; rules. (1) A criminal back-ground check is required to determine theeligibility of a person seeking employment asan ignition interlock device technician inthis state. A service center shall conduct afingerprint-based criminal background checkbefore hiring or contracting with an individ-ual as an ignition interlock device techni-cian. The service center shall request thatthe Department of State Police conduct thefingerprint-based criminal background checkby reviewing state and federal databases in-cluding, but not limited to, the:
(a) Oregon computerized criminal historysystem;
(b) Law Enforcement Data System;(c) Databases maintained by the Federal
Bureau of Investigation; and(d) National Crime Information Center.(2) The purpose of a criminal background
check is to preserve safety and preventcriminal acts by determining whether an in-dividual is eligible to be employed as an ig-nition interlock device technician. A personis ineligible if the person has been convictedof:
(a) Except as provided in paragraph (b)of this subsection, a misdemeanor in any ju-risdiction within two years of the date of thecriminal background check;
(b) Misdemeanor driving while under theinfluence of intoxicants in violation of ORS813.010 or the statutory counterpart in an-other jurisdiction within five years of thedate of the criminal background check; or
(c) A felony in any jurisdiction within 10years of the date of the criminal backgroundcheck.
(3) The department shall communicatewhether the individual passed or failed thecriminal background check conducted underthis section to the service center requestingthe check.
(4) The department shall prescribe byrule the process for obtaining a criminalbackground check by the department or, ifthe department is unable to conduct thecheck, by the service center requesting thecriminal background check.
(5) If the criminal background checkconducted by the department or a servicecenter reveals that the individual who is thesubject of the criminal background check hasbeen convicted of any of the crimes describedin subsection (2) of this section, the servicecenter may not employ the individual as anignition interlock device technician. [2017c.655 §4; 2017 c.655 §16; 2019 c.200 §§5,6]
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813.670 Complaint process. The Depart-ment of State Police shall adopt a procedurefor a person to file a complaint with the de-partment concerning the failure of a servicecenter or manufacturer’s representative tocomply with a requirement of ORS 813.660 to813.680. The department shall:
(1) Provide a response to the complainantno later than 14 days after the date thecomplaint is filed;
(2) Complete an investigation of thecomplaint no later than 90 days after thedate the complaint is filed; and
(3) Provide a written report of the resultsof the investigation to the service center ormanufacturer’s representative and to thecomplainant. [2017 c.655 §5; 2017 c.655 §17; 2019 c.200§§11,12]
813.680 Ignition Interlock DeviceManagement Fund. (1) The Ignition Inter-lock Device Management Fund is establishedin the State Treasury, separate and distinctfrom the General Fund. Interest earned bythe Ignition Interlock Device ManagementFund shall be credited to the fund.
(2) Moneys in the Ignition Interlock De-vice Management Fund consist of:
(a) Fees collected under ORS 813.660 forissuance or renewal of certificates underORS 813.660;
(b) Amounts appropriated or otherwisetransferred to the fund by the LegislativeAssembly;
(c) Interest and other earnings on mon-eys in the fund; and
(d) Other amounts deposited in the fundfrom any source.
(3) Moneys in the fund are continuouslyappropriated to:
(a) The Department of Transportation forthe purpose of fulfilling the department’s du-ties, functions and powers related to specify-ing requirements for ignition interlockdevices as required under ORS 813.600; and
(b) The Department of State Police forthe purpose of carrying out the regulatoryfunctions of the department relating to ser-vice centers and manufacturer’s represen-tatives, as described in ORS 813.599 and813.660 to 813.680. [2017 c.655 §6; 2017 c.655 §18;2019 c.200 §§13,14]
