If my license was revoked for a third DUI in a 10 year period is there any way possible to appeal?
Full Question:
If my license has been revoked for a third DUI in a 10 year period, is there any way possible to appeal for reinstatement before the 10 year requirement?
01/29/2009 |
Category: Drivers Lice... ยป Drivers Hard... |
State: Oregon |
#15099
Answer:
In Oregon, it's only possible to get a hardship driving permit for a suspended license, not a revoked license. In some cases, as court may rescind a revocation if the conviction is being appealed. The person convicted must petition the court to rescind the revocation while the appeal is pending, and if the court grants an order to rescind the revocation during the appeal, the DOT must do so. Please see the statutes below to determine applicability.
813.500 Restrictions on issuance.
(1) If a person's license is suspended for driving while under the
influence of intoxicants under ORS 813.400 and the suspension period is
determined by ORS 809.428(2)(b) or (c), the Department of
Transportation may only issue a hardship permit to the person under
ORS 807.240 if the person, in addition to any requirement under
ORS 807.240 and any applicable requirements under ORS 807.250 and
813.520:
(a) Is examined by the Director of Human Services or its designee to
determine whether the person has a problem condition involving alcohol,
inhalants or controlled substances as described in ORS 813.040; and
(b) Complies with the requirements of this section.
(2) If the Director of Human Services determines that the person has a
problem condition involving alcohol, inhalants or controlled
substances, as described in ORS 813.040, the department may issue the
permit to the person only if both the following apply:
(a) The person enrolled in a program for rehabilitation for alcoholism
or drug dependence approved by the Director of Human Services.
(b) The Director of Human Services recommends, on the basis of the
person's progress in the rehabilitation program, such reinstatement in
writing to the department. If the Director of Human Services makes a
recommendation under this paragraph, the Director of Human Services
shall state specifically in the recommendation the times, places,
routes and days of the week minimally necessary for the person to seek
or retain employment, to attend any alcohol or drug treatment or
rehabilitation program or to obtain necessary medical treatment for the
person or a member of the person's immediate family.
(3) If the Director of Human Services determines that the person does
not have a problem condition involving alcohol, inhalants or controlled
substances as described in ORS 813.040, the department may issue the
permit to the person only if, in addition to any requirements under
ORS 807.240, the person enters an alcohol or drug information program
approved by the Director of Human Services and the department
determines that issuance of a permit is appropriate. If the department
issues a permit to a person described in this subsection, the
department shall require, under ORS 807.240, that the person complete
the program as a condition of retaining the permit.
809.428 Schedule of suspension or revocation periods for certain
offenses.
This section establishes schedules of suspension or revocation periods.
The schedules are applicable upon conviction for the offense when made
applicable under ORS 809.411 and 813.400. The schedules are as follows:
(1) Schedule I. The suspension or revocation periods under Schedule I
are as provided in this subsection. The period of suspension or
revocation under this schedule shall be:
(a) Ninety days for a first offense or for any offense not described in
paragraph (b) or (c) of this subsection.
(b) One year for a second offense, where the commission of the second
offense and a conviction for a separate offense occur within a
five-year period. This paragraph applies to any combination of offenses
for which the length of suspension is determined under this subsection.
(c) Three years for a third or subsequent offense where the commission
of the third or subsequent offense and two or more convictions for
separate offenses occur within a five-year period. This paragraph
applies to any combination of offenses for which the length of
suspension is determined under this subsection.
(2) Schedule II. The suspension or revocation periods under Schedule II
are as provided in this subsection. The period of suspension or
revocation under this schedule shall be:
(a) One year for a first offense or for any offense not described in
paragraph (b) or (c) of this subsection.
(b) Three years for a second offense, where the commission of the
second offense and a conviction for a separate offense occur within a
five-year period.
(c) Three years for a third or subsequent offense, where the commission
of the third or subsequent offense and a conviction for a separate
offense occur within a five-year period.
813.040 Standards for determination of problem condition involving
alcohol, inhalants or controlled substances.
This section establishes, for purposes of ORS 471.432, 807.060 and
813.500, when a person has a problem condition involving alcohol,
inhalants or controlled substances. For purposes of ORS 471.432,
807.060 and 813.500, a person has a problem condition involving
alcohol, inhalants or controlled substances if it is determined that
the person has a problem condition in which the person's health or that
of others is substantially impaired or endangered or the person's
social or economic function is substantially disrupted because of the
person's:
(1) Habitual or periodic use of alcoholic beverages; or
(2) Use of or loss of the ability to control the use of controlled
substances, inhalants or other substances with abuse potential
including a condition that may have developed:
(a) A physical dependence in which the body requires a continuing
supply of a drug, inhalant or controlled substance to avoid
characteristic withdrawal symptoms; or
(b) A psychological dependence characterized by an overwhelming mental
desire for continued use of a drug, inhalant or controlled substance.
807.240 Hardship permit; fees; rules.
The Department of Transportation shall provide for issuance of
hardship driver permits in a manner consistent with this section. A
hardship driver permit grants the driving privileges provided in this
section or under the permit. Except as otherwise provided in this
section, a hardship driver permit is subject to the fees, provisions,
conditions, prohibitions and penalties applicable to a license. The
following apply to a hardship driver permit:
(1) The department may only issue a permit to a person whose driving
privileges under the vehicle code have been suspended.
(2) Except as provided in ORS 813.520, the department may reinstate
the privilege to operate a motor vehicle of any person whose license
to operate a motor vehicle has been suspended by issuing the person a
hardship permit described under this section if such person qualifies
under this section, ORS 807.250, 807.252 and 813.500. However, the
department may not issue a hardship permit authorizing a person to
drive a commercial motor vehicle.
(3) To qualify for a hardship permit, a person must do all of the
following in addition to any applicable provisions under ORS 807.250,
807.252 and 813.500:
(a) The person must submit to the department an application for the
permit that demonstrates the person's need for the permit.
(b) The person must present satisfactory evidence, as determined by
the department by rule:
(A) That the person must operate a motor vehicle as a requisite of the
person's occupation or employment;
(B) That the person must operate a motor vehicle to seek employment or
to get to or from a place of employment;
(C) That the person must operate a motor vehicle to get to or from an
alcohol or drug treatment or rehabilitation program;
(D) That the person or a member of the person's immediate family
requires medical treatment on a regular basis and that the person must
operate a motor vehicle in order that the treatment may be obtained;
or
(E) That the person's driving privileges are suspended for driving
uninsured in violation of ORS 806.010 or for violation of ORS 165.805
or 471.430 and are not suspended for any other reason and that the
person must operate a motor vehicle in order to provide necessary
services to the person or to a member of the person's family. The
department shall determine by rule what constitutes necessary services
for purposes of this subparagraph. The rule shall include as necessary
services, but need not be limited to, grocery shopping, driving the
person or the person's children to school, driving to medical
appointments and caring for elderly family members.
(c) If the person is applying for a permit because the person or a
member of the person's immediate family requires medical treatment on
a regular basis, the person must present, in addition to any evidence
required by the department under paragraph (b) of this subsection, a
statement signed by a licensed physician or certified nurse
practitioner that indicates that the person or a member of the
person's immediate family requires medical treatment on a regular
basis.
(d) The person must show that the person is not incompetent to drive
nor a habitual incompetent, reckless or criminally negligent driver as
established by the person's driving record in this or any other
jurisdiction.
(e) The person must make a future responsibility filing.
(f) The person must submit any other information the department may
require for purposes of determining whether the person qualifies under
this section, ORS 807.250, 807.252, 813.500 and 813.520.
(4) If the department finds that the person meets the requirements of
this section and any applicable requirements under ORS 807.250,
807.252, 813.500 and 813.520, the department may issue the person a
hardship permit, valid for the duration of the suspension or for a
shorter period of time established by the department unless sooner
suspended or revoked under this section. If the department issues the
permit for a period shorter than the suspension period, renewal of the
permit shall be on such terms and conditions as the department may
require. The permit:
(a) Shall limit the holder to operation of a motor vehicle only during
specified times.
(b) May bear other reasonable limitations relating to the hardship
permit or the operation of a motor vehicle that the department deems
proper or necessary. The limitations may include any limitation,
condition or requirement. Violation of a limitation is punishable as
provided by ORS 811.175 or 811.182.
(5) The department, upon receiving satisfactory evidence of any
violation of the limitations of a permit issued under this section or
limitations placed on a hardship permit under ORS 807.252 or 813.510,
may suspend or revoke the hardship permit.
(6) The fee charged for application or issuance of a hardship driver
permit is the hardship driver permit application fee under ORS 807.370.
The department may not refund the fee if the application is denied or
if the driver permit is suspended or revoked. The fee upon renewal of
the driver permit is the same fee as that charged for renewal of a
license. The application fee charged under this subsection is in
addition to any fee charged for reinstatement of driving privileges
under ORS 807.370.
(7) The department may issue a permit granting the same driving
privileges as those suspended or may issue a permit granting fewer
driving privileges, as the department determines necessary to assure
safe operation of motor vehicles by the permit holder.
809.460 Rescission of suspension or revocation upon appeal of
underlying conviction.
(1) Except as provided in subsection (4) of this section, if a
suspension or revocation of driving privileges is based upon a
conviction, the court that entered the judgment of conviction may
direct the Department of Transportation to rescind the suspension or
revocation if:
(a) The person has appealed the conviction; and
(b) The person requests in writing that the court direct the department
to rescind the suspension or revocation pending the outcome of the
appeal.
(2) If directed by a court pursuant to subsection (1) of this section
to do so, the department shall immediately rescind a suspension or
revocation of driving privileges.
(3) The court shall notify the department immediately if the conviction
is affirmed on appeal, the appeal is dismissed or the appeal is not
perfected within the statutory period. Upon receipt of notice under
this subsection, the department shall reimpose any suspension or
revocation that has been rescinded under this section.
(4) If a person's commercial driver license was suspended under
ORS 809.404, 809.413 or 813.403, the department shall not rescind
suspension of the person's commercial driver license because the person
has taken an appeal, unless the conviction is reversed on appeal.
813.400 Suspension or revocation upon conviction; duration; review.
(1) Except as provided in subsection (2) of this section, upon receipt
of a record of conviction for misdemeanor driving while under the
influence of intoxicants, the Department of Transportation shall
suspend the driving privileges of the person convicted. The suspension
shall be for a period described under Schedule II of ORS 809.428,
except the department shall not reinstate any driving privileges to the
person until the person complies with future responsibility filings. A
person is entitled to administrative review under ORS 809.440 of a
suspension imposed under this subsection.
(2) A person convicted of felony driving while under the influence of
intoxicants, or a person convicted of misdemeanor driving while under
the influence of intoxicants for a third or subsequent time, is subject
to revocation of driving privileges as provided in ORS 809.235.
809.235 Permanent revocation of driving privileges upon conviction
of certain crimes; restoration of privileges.
(1)
(a) Notwithstanding ORS 809.409(2), the court shall order that a
person's driving privileges be permanently revoked if the person is
convicted of any degree of murder or of manslaughter in the first
degree and the court finds that the person intentionally used a motor
vehicle as a dangerous weapon resulting in the death of the victim.
(b) The court shall order that a person's driving privileges be
permanently revoked if the person is convicted of felony driving while
under the influence of intoxicants in violation of ORS 813.010 or if
the person is convicted for a third or subsequent time of any of the
following offenses in any combination:
(A) Driving while under the influence 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 intoxicants offense in another
jurisdiction that involved the impaired driving of a vehicle due to the
use of intoxicating liquor, a controlled substance, an inhalant or any
combination thereof.
(C) A driving offense in another jurisdiction that involved operating a
vehicle while having a blood alcohol content above that jurisdiction's
permissible blood alcohol content.
(c) For the purposes of paragraph (b) of this subsection, a conviction
for a driving offense in another jurisdiction based solely on a person
under 21 years of age having a blood alcohol content that is lower than
the permissible blood alcohol content in that jurisdiction for a person
21 years of age or older does not constitute a prior conviction.
(2)
(a) A person whose driving privileges are revoked as described in
subsection (1) of this section may file a petition in the circuit court
of the county in which the person resides for an order restoring the
person's driving privileges. A petition may be filed under this
subsection no sooner than 10 years after the person is:
(A) Released on parole or post-prison supervision; or
(B) Sentenced to probation if the probation is not revoked and the
person is thereafter discharged without the imposition of a sentence of
imprisonment.
(b) The district attorney of the county in which the person resides
shall be named and served as the respondent in the petition.
(3) The court shall hold a hearing on a petition filed in accordance
with subsection (2) of this section. In determining whether to grant
the petition, the court shall consider:
(a) The nature of the offense for which driving privileges were
revoked.
(b) The degree of violence involved in the offense.
(c) Other criminal and relevant noncriminal behavior of the petitioner
both before and after the conviction that resulted in the revocation.
(d) The recommendation of the person's parole officer, which shall be
based in part on a psychological evaluation ordered by the court to
determine whether the person is presently a threat to the safety of the
public.
(e) Any other relevant factors.
(4) If, after a hearing described in subsection (3) of this section,
the court is satisfied by clear and convincing evidence that the
petitioner is rehabilitated and that the petitioner does not pose a
threat to the safety of the public, the court shall order the
petitioner's driving privileges restored.
