"I blew over 0.08. It's my first DUII. The officer took my license and handed me a yellow sheet of paper about a hearing. What do I do?"
If that sounds like you, the most important thing to know is this: you have 10 days from your arrest to request a DMV hearing. If you miss that deadline, Oregon DMV will suspend your license automatically, no matter what happens in your criminal case.
That yellow paper is your notice that DMV intends to suspend your driving privileges. Most people set it aside while they worry about the criminal charge. That's a mistake, and it's one of the main reasons to call a DUII attorney right after an arrest, not weeks later.
Oregon's Implied Consent Law and the 90-Day Suspension
Under Oregon's implied consent law, ORS 813.100, anyone who drives on Oregon roads is treated as having agreed to a breath test if they are arrested for DUII. You didn't sign anything. Driving is the agreement.
If you take a breath test and it shows 0.08% or more, or if you refuse the test, the officer takes your Oregon license and gives you written notice that DMV intends to suspend it. If you qualify, that notice also serves as a temporary driving permit.
This DMV suspension is separate from your criminal DUII case. It happens even if the criminal case is later dismissed or you get diversion. Under ORS 813.410 and 813.420:
Failed breath test, first offense: 90-day suspension.
Refused the test, first offense: 1-year suspension.
With a prior DUII-related history (for example, you are currently in diversion, or in the past 5 years you had a DUII conviction or an implied consent suspension; see ORS 813.430): 1 year for a failed test, 3 years for a refusal.
For a breath test, the suspension starts on the 30th day after your arrest unless you win at a hearing. For a blood test, the suspension starts on the 60th day after DMV receives the test report (ORS 813.410).
How to Request Your DMV Hearing
For a breath test failure or a refusal, DMV must receive your request by 11:59 p.m. on the 10th day after your arrest. If you took a blood test, the deadline is on the notice DMV mails you. A request that arrives on a weekend or holiday counts as received the next business day, so don't wait until the last day.
You can't request a hearing by phone. You can:
Request it online through DMV2U: Request an implied consent hearing
Fax it to the DMV Hearings Case Management Unit at 503-945-5521
Mail it to DMV Hearings Case Management Unit, 1905 Lana Ave NE, Salem, OR 97314
The request needs your name, mailing address, date of arrest, date of birth, license number, a daytime phone number, and a short statement of the issues you plan to raise. If you have an attorney, include their name and contact information. DMV's implied consent hearing page lists everything it needs. You can call 503-945-5545 to confirm DMV received your request.
The hearing is held before an administrative law judge from the Office of Administrative Hearings. By law, it must be held and decided within 30 days of your arrest for a breath test case.
What the Hearing Decides (and What It Doesn't)
The DMV hearing is not a trial on whether you were drunk. The judge doesn't decide guilt, and DMV doesn't have to prove impairment beyond a reasonable doubt. Under ORS 813.410, the hearing is limited to whether the suspension is valid. That comes down to a short list of questions:
Were you under arrest for DUII when you were asked to take the test?
Did police have reasonable grounds to believe you were driving under the influence?
Did you refuse the test, or did it show 0.08% or more?
Were you told your rights and the consequences of the test, and given written notice?
If you took a breath test, was it given by a qualified operator using proper methods and equipment?
The list is narrow, but each item is a real legal requirement. If DMV can't show one of them, the suspension isn't valid.
"Reasonable grounds" is often where the fight is. Your attorney may challenge whether the officer had reasonable grounds if no one saw you driving, if time passed between the driving and your contact with police, or if the signs of impairment came only after an unlawful search or seizure. One example is police ordering you out of your home without a warrant. If the facts police relied on were obtained unlawfully, your attorney can argue they can't be used to support the suspension.
Why Request the Hearing? In My Opinion, There's Only an Upside
Every case is different, and you should always talk with an attorney about your own situation. But in my opinion, there is no downside to requesting a DMV hearing, only an upside. Here's why.
The officer may not show up, and under certain circumstances you can prevail. In Cole/Dinsmore v. DMV, 336 Or 565 (2004), the Oregon Supreme Court held that a driver's due process rights were violated when an officer did not appear for a hearing and DMV used a report from an officer the driver had not received, leaving him no chance to subpoena and question that officer. In the companion case decided the same day, the court held that officers' reports that rested partly on hearsay, and whose methods the driver challenged, were not enough on their own to support DMV's order. A written report is not automatically the last word.
If the officer does show up, your attorney gets to test the evidence. Questioning the officer under oath, early in the case, can reveal weaknesses in the stop, the arrest, or the test. That can shape a motion to suppress or a trial defense in your criminal case.
The hearing is typically remote. By law, the hearing is held by phone or video unless someone asks for it in person (ORS 813.410). Usually you can call in without traveling or taking a day off work.
One caution: once you request a hearing, you or your attorney must appear. If you don't show up without a good reason, you give up the hearing and the suspension goes into effect.
What If I Don't Have an Oregon License?
If you were arrested in Oregon but your license is from another state, the situation is more complicated. The officer takes only an Oregon-issued license (ORS 813.100). Oregon can still suspend your privilege to drive in Oregon, and your home state may impose its own suspension based on the Oregon arrest under its own rules and deadlines.
What you should do depends on the rules in both states, and the deadlines can be short. If you have an out-of-state license, talk to an attorney right away about how to protect your driving privileges at home and in Oregon.
Call an Attorney Right After Your Arrest
The 10-day deadline is why timing matters so much in a DUII case. If you call an attorney right away, we can request your DMV hearing, subpoena the officer, and use the hearing to start building your defense. If you wait until your first court date, the DMV deadline has usually already passed.
If you were arrested for DUII in the Portland area, give us a call at 503-453-4273, and we can discuss your case in a free consultation. For first-time DUIIs, we also offer flat-fee DUII diversion representation.
Arrested outside Portland? We also handle DUII cases in Gresham, Hood River, The Dalles and Bend.
This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. The outcome of any case depends on its specific facts. DMV deadlines and procedures may change; always check the notice you received.