When I meet with new clients, they are often embarrassed, confused, and overwhelmed. Among the confusion is the fact that a DUII arrest frequently institutes two separate proceedings against the driver:
(1) The criminal case; and
(2) DMV’s proposed license suspension for failing or refusing a chemical test.
After requesting a DMV hearing, people often ask, “When will it be set?” To which I respond, “It should be within 30 days of the date of your arrest.” Sometimes I’ll add, “It is supposed to be, from a Due Process standpoint, a ‘pre-deprivation hearing.’ Meaning the hearing is supposed to happen before any suspension.”
Most DMV hearings are in fact set and litigated within the 30 days after the date of the arrest. However, police officers can ask for one (1) reset of a DMV hearing based on “illness, vacation, or official duty conflict.” ORS 813.330(1)(d). Those reasons are subject to cross-examination at the eventual hearing. Higgins v. MVD, 139 Or App 314 (1996) (counsel must be permitted to cross-examine the officer on the grounds for reset); Blaisdell v. MVD, 145 Or App 468 (1996) (officer’s car trouble does not support a hearing reset). “A hearing may not be rescheduled more than once for reasons described in this paragraph.” ORS 813.440(1)(d).
However, a hearing may be rescheduled more than once for “error of the department.” ORS 813.440(1)(c). There’s a laundry list in the administrative rules, but the most common reason in my experience is double-booking — either the lawyer or the police officer. See OAR 735-090-0000(2).
Point being, how should a lawyer answer the question, “When will my DMV hearing be?” I think the most honest, least confusing is the one I’ve come up with above: “It should be within 30 days of the date of your arrest.” It should be. But sometimes, it’s not. I think it’s a better answer than, “It’s complicated.”
On the up-side, government resets give petitioners and their lawyers one more basis to develop evidence at the eventual evidentiary hearing. Like the lawyers in Higgins and Blaisdell, I’ve had lengthy proposed suspensions overturned when the basis for the reset turns out, in retrospect, to be bunk.