What is an Implied Consent Hearing?

When a person is arrested for driving under the influence of intoxicants, DUII, they face the possibility of getting his or her license suspended several different ways. If convicted of a DUI, a person will face a license sanction of a suspension ranging from 1 year to 3 years or a lifetime revocation of driving privileges. However, a person also can get his or her license suspended even if not convicted of a DUII. Oregon has what is called an "Implied Consent Law." The Implied Consent Law states that a person, when operating a vehicle on a public highway or premises open to the public in Oregon, consents to a blood, breath, or urine test if requested by an officer. If a person refuses, there is a license suspension that will be imposed. If the person blows .08 or above, there also is a corresponding license suspension. A person does have the right to contest a suspension under the Implied Consent Law. But, if the person does not win the hearing or does not request one, he or she will have his or her driving privileges suspended.

An implied consent hearing has nothing to do with court or the DUII criminal charge. The implied consent hearing is conducted at the office of administrative hearings and is an administrative suspension. It is possible not to get suspend through the court system, but still get suspended through the administrative hearing. It also is possible to avoid a suspension at the administrative level, but get suspended through the court.

Implied consent hearings do not automatically happen because a person has been arrested and either blew over the legal limit or refused to provide a breath test sample. In order to have a hearing, a person must request a hearing, though the Office of Administrative Hearings, within 10 days of the date of arrest. The Office of Administrative Hearings will not consider a request submitted after 10 days from the date of arrest.

A person may request a hearing through email, fax, or letter. It is my preference, in representing clients facing implied consent suspensions, to request the hearing on their behalf. I do this for several reasons. One reason is I want to include a notice to the hearing officer about all of the issues I intend to raise at a hearing. I also am able to inform the schedulers about times I am available to conduct a hearing. Generally, the schedulers try to accommodate my schedule. This is important because if the hearing has to be rescheduled because of my unavailability, then the proposed suspension would still go into affect on the listed date pending the outcome of the hearing.

Implied Consent Hearings also can provide valuable information that could be used at a trial. These hearings are recorded and witnesses are sworn to tell the truth in the same way they swear to tell the truth at trial. Sometimes we are able to gather valuable information from witnesses that we might not otherwise obtain before trial. The more information we can discover before trial will make us that much more prepared to fight the DUII charge in court.

From the Author: Implied Consent Hearing