Dooney v. Department of Transportation

751 P.2d 790, 305 Or. 307, 1988 Ore. LEXIS 9

• Court: Oregon Supreme Court
• Decided: March 15, 1988
• Docket: TC CC85-2255; CA A39544; SC S34082
• Status: Published

Opinions

CARSON, J.

This proceeding for declaratory and injunctive relief is a companion case to State v. Adams, 305 Or 330, 751 P2d 784 (1988) and State v. Atkinson, 305 Or 295, 751 P2d 784 (1988), both of which we also decide today. It concerns the required contents of a valid notice of intention to suspend driving privileges when the privileges were suspended for failure to take a chemical breath test. The question presented is whether valid notice required a statement that suspension would be stayed if the privilege holder requested a hearing.

Because there is no record of the proceedings in this matter, the facts are taken from the pleadings and memoranda of the parties. Plaintiff was arrested for Driving Under the Influence of Intoxicants (DUII) on March 30, 1984. At that time, he refused a police officer’s request to take a chemical breath test. On May 4,1984, defendant Motor Vehicles Division (MVD) notified plaintiff that it was suspending his driving privileges for this refusal, effective June 3, 1984, until October 1, 1984, under former ORS 482.540(1) and (2) and former ORS 482.440.¹ As required by former ORS 482.540(2), the notice informed plaintiff that he could request a hearing within 20 days of the date of the notice. That gave plaintiff until May 24,1984, or until 10 days before the effective date of suspension, to request a hearing. Plaintiff did not make such a request.

On March 8, 1985, plaintiff was again arrested for DUII. He again refused to take a chemical breath test. This time, however, plaintiff requested a hearing. After the hearing, MVD suspended plaintiffs license for three years, from April 7, 1985, through April 7, 1988. MVD used plaintiffs first suspension to increase the penalty for the second suspension from one to three years, as required by former ORS 482.547.² The circuit court affirmed the three-year suspension.

Finally, in November 1985, plaintiff sought declaratory and injunctive relief in attacking the validity of the first suspension. He claimed that the first notice of suspension was both “constitutionally defective” and statutorily inadequate, citing State v. Tooley, 297 Or 602, 687 P2d 1068 (1984).³ The circuit court granted plaintiffs request for relief and ordered MVD to treat the second suspension as a first suspension lasting for one year.⁴ The Court of Appeals affirmed, citing State v. Tooley, supra, and its own decision in State v. Adams, 78 Or App 428, 717 P2d 212 (1986). Dooney v. Department of Transportation, 85 Or App 221, 735 P2d 1303 (1987). We reverse.

In State v. Tooley, supra, we concluded that the notice given was inadequate to inform the defendant of his right to contest revocation of his driver license before revocation went into effect. 297 Or at 609. The notice was given pursuant to former ORS 486.221. It informed the defendant that he had 20 days from the date of the notice within which to request a hearing; at the same time, however, the notice stated that the revocation became effective within five days of the notice. The defendant also was told not to drive until reinstated and that reinstatement required a $25 fee.

In this case, the circuit court concluded that the notice given plaintiff had substantially the same “characteristics” as the defective notice given the defendant in State v. Tooley, supra. This case is similar to Tooley because both cases involve statutory rights and neither involves an issue of constitutional interpretation.

In Tooley, however, we found the notice defective because it “incorrectly communicated that the revocation went into effect regardless of defendant’s request for a hearing and remained in effect unless and until defendant prevailed.” 297 Or at 609. That language might be taken to mean that notice requirements may be other than what the legislature specifies by statute. That is not the yardstick by which we measure the required contents of the notice in this case, and we specifically disavow such language.⁵

Moreover, Tooley concerned different statutory requirements for notice. Tooley involved the notice requirement (former ORS 486.221) for revocation or suspension because of a motor vehicle felony (former ORS 486.211(3)tc)). This case involves the notice requirement (former ORS 482.540(2)) for suspension because of the refusal to take a chemical breath test (former ORS 487.805(2) and former 482.540(1)).

When a person refused a police officer’s request to take a chemical breath test, former ORS 482.540(2) required that MVD notify the person of its intention to suspend his or her driving privileges and allow the person 20 days from the date of the notice within which to request a hearing. Former ORS 482.540(3) provided that “[n]otice of intention to suspend or notice of an order of suspension shall be served as provided in ORS 482.570.” Former ORS 482.570⁶ provided, in part, that MVD “shall give notice of such action [suspension] to the person whose license or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court.”

Plaintiff was given notice which sufficiently complied with these requirements. The notice informed plaintiff that MVD had received the police officer’s report of his refusal to take a breath test, that his license consequently would be suspended and when the suspension would take effect. It then advised plaintiff that he could request a hearing. Plaintiff was told that he had 20 days from the date of the notice within which to make such a request. The notice fully complied with the requirements of former ORS 482.540(2) and (3) and former 482.570. Thus, the notice was adequate to support plaintiffs first suspension under former ORS 482.540.

The decision of the Court of Appeals and the judgment of the trial court are reversed.

1 At the time of plaintiffs first suspension, former ORS 482.540 provided:

“(1) Upon receipt of the report of a police officer as required in ORS 487.805(2), and in accordance with subsection (2) of this section and ORS 482.550(1), the division shall suspend the reported person’s license, permit or privilege to drive a motor vehicle in this state for a period of 120 days.

“(2) Upon receipt of the report of the police officer, the division shall notify the reported person by mail of the intention to suspend and allow said person a 20-day period after the date of mailing said notice to request in writing a hearing before a representative of the division as provided in this section. If no request is filed within the 20-day period, the division shall thereupon suspend the license, permit or privilege of the person to drive a motor vehicle.

“(3) Notice of intention to suspend or notice of an order of suspension shall be served as provided in ORS 482.570.”

At the time of plaintiffs first suspension, former ORS 482.440 (now see ORS 809.360(4)) provided:

“Whenever the division or a court has reason under any laws of this state to suspend or revoke the license or permit of any person who has not been issued a current Oregon license or permit to operate motor vehicles or whose license is due to expire during a suspension period, the division or court shall suspend or revoke the right of such person to apply for a license or permit to operate motor vehicles in this state.”

2 In March - April 1985, former ORS 482.547 (now see ORS 813.430) provided, in part:

“This section establishes circumstances under which ORS 482.545 requires an increase in the time for suspension of driving privileges and under which ORS 482.552 requires an increase in the time before the division may issue an occupational license. A person is subject to an increase in suspension or refusal time under this section if, within the previous five years, the person:

“(1) Was suspended under ORS 482.541 or was suspended for any reason under ORS 482.540 (1981 Replacement Part).”

3 Plaintiff dropped his constitutional claim on appeal, arguing simply that he had a statutory right to a hearing. He asserted that State v. Tooley, 297 Or 602, 687 P2d 1068 (1984), and State v. Adams, 78 Or App 428, 717 P2d 212 (1986), provide the standard against which to measure the notice which he was given.

4 The court also ordered that the period during which plaintiff was barred from applying for an occupational driver license be reduced from one year to 90 days.

5 See also State v. Atkinson, 305 Or 295, 751 P2d 784 (1988), also decided today.

6 At the time of plaintiffs first suspension, former ORS 482.570 (now see ORS 809.430) provided:

“When the division, as authorized or required, suspends, revokes or cancels a license or the right to apply for a license to operate motor vehicles, it shall give notice of such action to the person whose license or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court. Service of the notice is accomplished either by mailing the notice by certified mail restricted delivery, return receipt requested, to the person’s address as shown by division records, or, by personal service in the same manner as a summons is served in an action at law.”