Fors v. Motor Vehicles Division

615 P.2d 331, 47 Or. App. 447, 1980 Ore. App. LEXIS 3183
CourtCourt of Appeals of Oregon
DecidedJuly 28, 1980
DocketCA 16502
StatusPublished
Cited by5 cases

This text of 615 P.2d 331 (Fors v. Motor Vehicles Division) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Fors v. Motor Vehicles Division, 615 P.2d 331, 47 Or. App. 447, 1980 Ore. App. LEXIS 3183 (Or. Ct. App. 1980).

Opinion

GILLETTE, P. J.

Petitioner appeals from an order of the Motor Vehicles Division (Division) suspending his driving privileges for a period of thirty days. On September 14, 1979, the Division issued an order of suspension pursuant to ORS 482.450(1)(d). That statute allows the Division to immediately suspend

" * * * the license of any person without hearing * * * when the division has reason to believe that such person:
"(d) Is a habitual incompetent, reckless or criminally negligent driver of a motor vehicle or has committed a serious violation of the motor vehicle laws of this state.”

The decision to suspend in this case was based on petitioner’s driving record. After being notified of the suspension, petitioner requested a hearing.1 The hearing officer affirmed the order of suspension. We reverse.

Our scope of review is defined by the Administrative Procedure Act. ORS 482.490; ORS 183.482.2 [450]*450The sole issue on appeal is whether the Division was obligated to follow its own procedures before suspending petitioner’s license. At the heart of the dispute is OAR 735-31-005, which establishes a five step program for driver improvement. It provides that:

"(1) For the purpose of this rule, 'preventable accident’ means an accident in which the driver failed to do everything he reasonably could have done to prevent it. The Advisory Letter (Warning): An advisory letter will be mailed when the driver has been convicted or forfeited bail on two moving violations or has been involved in two preventable accidents, or combination thereof, within a twelve-month period.
"(2) A Driver Safety Course: When a driver has been convicted or forfeited bail on any moving violation or has been involved in a preventable accident within six months (or two moving violations/preventable accidents or one major violation within twelve [451]*451months) of the mailing date of the advisory letter, the driver shall be considered an habitual incompetent and be required to attend a driver safety course or a defensive driving course approved by the Motor Vehicles Division. Failure to enroll in or complete the driver safety course or the defensive driving course within ninety days of the mailing date of the scheduling letter will cause the driver’s license to be suspended for an indefinite period or until the course is completed.
"(3) The 'Consider for Suspension’ Letter: Subsequent to completion of the driver safety course or the defensive driving course, a 'Consider for Suspension’ letter may be mailed when the driver has been convicted or forfeited bail on one moving violation in a six-month period or two in a twelve-month period, or has had one major violation following a driver safety course or a defensive driving course.
"(4) 'Notice of Intent to Suspend’ (ISUS) Interview: Notice of Intent to Suspend interviews are scheduled at the convenience of the Division when the driver forfeits bail or is convicted of one moving violation within six months or two moving violations, or one major violation within twelve months of completion of a driver safety course or a defensive driving course.
"On the occasion of this interview, the Division may take one or more of the following actions:
"(a) Order suspension of the driver’s license for a period of up to one year.
"(b) Issue a probationary license for a period of up to one year. The probationary license may require that the driver drive without bail forfeiture or conviction for a moving traffic violation, or may limit driving to certain days, hours, destinations, and purposes.
"(c) Require the driver to complete a rehabilitation program under the Division’s direction or under the direction of other appropriate agencies.
"(d) Require the driver to complete the Division’s examination (vision, law, and drive).
"(e) The Division may, at its discretion, in lieu of the ISUS interview, require the driver to complete a defensive driving course, or driver safety course.
[452]*452"The Division will suspend a person’s driver’s license if he fails to appear for this interview, or if he declines to participate in the Driver Improvement Program or fails to meet the requirements of the Driver Improvement Program.”
"(5) Suspension: The driver’s license will be suspended if within six months of the 'Notice of Intent to Suspend’ interview, the driver is convicted or forfeits bail on one moving traffic violation or within twelve months is convicted or forfeits bail on two moving violations. (All driving record suspensions will be for a period of from thirty days up to one year.) Under no circumstances will an occupational license be issued on a driving record suspension. * * *
" Under routine procedure, a driver will be carried through each of the first four steps of the Driver Improvement Program. In exceptional cases, and at its discretion, the Division may omit any or all of the steps leading up to suspension.”

In this case, the Division failed to follow steps three and four; the petitioner never received a "consider for suspension” letter and was never afforded the required interview. The hearing officer found that:

"1. On December 23, 1974 and on August 11, 1978, the Division mailed the Petitioner warning letters.
"2. On March 29,1979, the Division required the Petitioner to complete a driver safety course which he completed April 21, 1979.
"3. In a three-year period ending August 14, 1979, the Petitioner was convicted of thirteen moving violations, four of which occurred in a twelve-month period ending August 14, 1979.
"4. On September 14, 1979, the Division suspended the Petitioner’s driving privileges for thirty days. The suspension was rescinded pending the outcome of the hearing.”

There is no indication in the record as to why petitioner was not afforded the benefit of all four steps; there is no statement that petitioner’s case is an "exceptional” one, nor any indication as to what way it [453]*453is "exceptional,” if the Division believes it to be so. The Division’s regulations do not define "exceptional,” and no standards exist to distinguish routine cases from exceptional ones.

Despite these rather glaring deficiencies, the Division offers two arguments in support of its action. Initially, it maintains that the steps prescribed in the rule are not mandatory. It argues that the provision allowing it to omit any or all of the steps in exceptional cases simply reserves its discretionary authority to order suspensions whenever the conditions specified in ORS 482.450(1)3 are met.

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Cite This Page — Counsel Stack

Bluebook (online)
615 P.2d 331, 47 Or. App. 447, 1980 Ore. App. LEXIS 3183, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fors-v-motor-vehicles-division-orctapp-1980.