A DUII Conviction That Is Set aside in Another State Is Still Subject to Continued Suspension in Oregon


Dyrdahl v. DOT
Court of Appeals of Oregon
March 8, 2006

Holding: A defendant whose driver’s license is suspended for driving under the influence of intoxicants is subject to continued suspension, even if the conviction occurred and was set-aside in another state.

Why This Case is Important: Oregon Revised Statutes § 813.400 authorizes the Department of Transportation (DOT) to suspend the driving privileges of those convicted of driving under the influence of intoxicants (DUII). The statute’s key word is “convicted.” As such, if a defendant is convicted of the crime, the DOT is required to suspend the individual’s driver’s license.

This rule of law holds true even if the defendant is convicted in another state and has subsequently set aside his DUII conviction. The crux of this case hinged on whether a defendant convicted in Arizona of DUII, who has subsequently set aside his conviction, is still subject to the suspension under Oregon law.

There is a key difference between Oregon law and Arizona law when it comes to DUII convictions. In Oregon, a person charged with DUII is given the opportunity to enter a diversion program. Upon successful completion of the diversion program, the defendant is not convicted of the crime. As such, section 813.400 does not apply, and the DOT is not authorized to suspend the defendant’s driver’s license.

On the other hand, a defendant in Arizona is not offered a diversion program until after he has been convicted of DUII. As such, a DUII conviction occurs first. This is not similar to Oregon law, where a defendant may enter the diversion program prior to a conviction. Because in Arizona a defendant is convicted, then Oregon law authorizes the DMV to suspend the defendant’s driver’s license. The fact that the defendant has set aside his conviction has no bearing on the authority to suspend his driver’s license, as section 813.400 clearly states those that are convicted are subject to suspension.

Facts of This Case: In April of 2003, the petitioner in this case pleaded guilty to misdemeanor driving while under the influence of intoxicants (DUII) while in Arizona. The petitioner was an Oregon resident and had an Oregon driver’s license. The DOT subsequently suspended the petitioner’s driver’s license for one year.

In November of 2003, the petitioner successfully set aside his conviction after completion of a diversion program. The petitioner thereby sought reinstatement of his Oregon driving privileges, but the DOT refused.

The petitioner appealed to the circuit court, which ruled in the petitioner’s favor and ordered the DOT to reinstate the license. The court of appeals reversed the circuit court’s decision.

The Court of Appeals of Oregon held that section 813.400(1) authorized the DMV to suspend driving privileges where the defendant has been convicted of DUII. The court of appeals determined that the Oregon DUII law and Arizona DUII law were similar. Because of the similarity, the court of appeals held that the out-of-state conduct must be treated the same as if it were in state.

The court of appeals established that section 813.400(1) required the DOT to suspend driving privileges for those who have been convicted. The court of appeals determined that the petitioner was convicted in Arizona, and was therefore subject to the DOT’s suspension authorized by Oregon law. The court of appeals found that there was no authority in Oregon law that authorized the reinstatement of driving privileges upon another state’s order setting aside the conviction.

As a result, the Oregon Court of Appeals reversed the circuit court’s decision and ordered the DOT to reinstate the petitioner’s suspension of driving privileges.

Key Language: ORS 831.400(1) unambiguously requires the DOT to suspend an Oregon Driver’s driving privileges upon receipt of a record of a misdemeanor DUII conviction in any state. That statute does not authorize the DOT to reinstate driving privileges upon receipt of another state’s order setting aside the conviction, and petitioner points to no statute that would authorize such action.

Expert Advise: “A basic premise of ORS 831.400(1) is whether a defendant is convicted. A defendant convicted of DUII will have his driving privileges suspended, even if the conviction occurred in another state. This case demonstrates how courts tend to strictly follow the language of the law when determining what the State Legislature intended. As such, it is important for attorneys to pay particular attention to the language of a given statute.” Attorney Mathew Higbee.

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