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Oregon Bulletin

January 1, 2012

 

Department of Transportation,
Driver and Motor Vehicle Services Division
Chapter 735

Rule Caption: Action Taken Upon Failure to Establish Identity when Committing an Act in ORS 809.310(a) through (h).

Adm. Order No.: DMV 11-2011

Filed with Sec. of State: 11-23-2011

Certified to be Effective: 11-23-11

Notice Publication Date: 10-1-2011

Rules Amended: 735-062-0016, 735-070-0004

Subject: Before issuing a driver license or identification card (ID card), a person must submit to collection of biometric data in order to establish the person’s identity. This means DMV takes a digital photograph of an applicant for an original, renewal or replacement driver license or ID card, which is then compared to all other digital photos in the DMV database using facial recognition software. Based on this new technology, DMV has identified many cases where a person was issued a driver license or ID card in a false name. Often this occurred many years before when the person obtained identification because he or she was under 21 years of age.

      It has been DMV’s policy to suspend a person’s driving privileges and cancel any driver license or identification card, and to suspend the person’s right to apply for driving privileges and an identification card for one year when it is determined the person has committed an act listed in ORS 809.310(3). These acts include submitting false information to DMV, using an invalid license obtained by fraud, or giving false information to a police officer. DMV recently reviewed this policy and determined the sanction is too harsh in most instances, particularly since the majority of these situations arise because the person applied for a false driver license or ID card several years ago in order to misrepresent his or her age. State issued identification, either in the form of a driver license or ID card, is a necessity in today’s world. Taking both a driver license and ID card away from a person for a year can have a devastating effect on the person’s ability to maintain a job, complete financial transactions and travel. DMV has therefore changed its policy and will not suspend an identification card and a person’s right to apply for an identification card under these circumstances, although DMV will cancel an ID card that has been issued in a false name.

      DMV amended OAR 735-062-0016 and 735-070-0004 to delete the requirement that DMV suspend an ID card or the right to apply for an ID card when the person commits an act set forth in ORS 809.310(3). The rule amendments also correct a statutory citation in OAR 735-062-0016. The amendments to OAR 735-070-0004 also clarify that DMV will suspend driving privileges and the right to apply for driving privileges in all cases where DMV has determined that the person has knowingly committed an act listed in ORS 809.310(3)(a) through (h).

Rules Coordinator: Lauri Kunze—(503) 986-3171

735-062-0016

Requirements for Establishing Identity Under ORS 807.024 and Consequences of Applicant’s Failure to Establish Identity

(1) An applicant for an original, renewal or replacement driver license, driver permit or identification card must submit to the collection of biometric data, as provided in ORS 807.024, for the purpose of establishing identity, unless the applicant meets the requirements of OAR 735-062-0120 or 735-062-0125.

(2) To collect biometric data DMV will take a digital photograph of the applicant which must:

(a) Be full-faced;

(b) Clearly show the iris and pupil of each eye; and

(c) Capture the applicant’s natural appearance in accordance with the requirements set forth in section (3) of this rule.

(3) To comply with Section (2) of this rule, DMV will require the applicant to:

(a) Remove any eyeglasses;

(b) Remove any contact lens that significantly changes the appearance of the applicant’s eye;

(c) Remove any clothing or similar material that partially or completely covers the applicant’s face;

(d) Remove any head covering, including a hat or cap, unless the head covering is for medical or religious reasons. A head covering worn for medical or religious reasons must not cover or distort the applicant’s face; and

(e) Remove makeup, face paint, jewelry, sticker or other temporary substance that covers or distorts all or part of the face so as to significantly alter the applicant’s natural appearance and which DMV determines is likely to affect the biometric measurements of the digital photograph.

(4) Except as provided in OAR 735-062-0120 and 735-062-0125, if an applicant’s identity is not established by the biometric data submitted pursuant to subsection (1) of this rule, the applicant must provide documentation or other evidence sufficient to establish the applicant’s identity to the satisfaction of DMV. The documents or other evidence may include, but are not limited to, one or more of the following:

(a) Documents listed in OAR 735-062-0020 that provide proof of the applicant’s identity and date of birth to the satisfaction of DMV.

(b) The applicant’s SSN and proof and verification of the SSN as provided in OAR 735-062-0005.

(c) A letter from a treating physician that identifies the person and states a medical reason for the person’s change in appearance.

(d) A document or letter from a law enforcement agency verifying identity.

(e) A court document verifying identity.

(5) Except as provided in OAR 735-062-0120 and 735-062-0125, DMV will not issue a driver license, driver permit or identification card, if the applicant’s identity is not established under this rule.

(6) Pursuant to ORS 809.310(3) and OAR 735-070-0004, DMV will suspend an applicant’s driving privileges and the person’s right to apply for driving privileges if the person fails to establish his or her identity as required by this rule and the failure to establish identity is the result of the applicant’s committing any of the acts identified in ORS 809.310(3)(a) through (h).

(7) Pursuant to ORS 809.310(1), 807.400(15), and OAR 735-070-0004, DMV will cancel a driver license, driver permit or identification card issued to an applicant who fails to establish his or her identity as required by this rule when applying for the license, permit or identification card.

(8) Pursuant to ORS 809.310(2), 807.400(15), and OAR 735-070-0004, DMV will cancel a driver license, driver permit or identification card issued to an applicant who fails to establish his or her identity as required by this rule when applying for the license, permit or identification card, and the failure to establish identity is the result of the applicant’s providing false information to DMV.

(9) If, based on the identification procedures required under section (1) or section (2) of this rule, DMV determines that an applicant has used different names to identify himself or herself in different applications submitted to DMV and the different names are not the result of the applicant’s having legally changed his or her name, DMV may take the actions authorized by ORS 809.135.

Stat. Auth.: ORS 184.616, 184.619, 802.010, 807.021 & 807.024

Stats. Implemented: ORS 807.021, 807.024, 807.400, 809.135, 809.310, 807.400 & 809.411

Hist.: DMV 16-2008, f. 6-23-08, cert. ef. 7-1-08; DMV 13-2010, f. & cert. ef. 7-30-10; DMV 6-2011, f. & cert. ef. 6-21-11; DMV 11-2011, f. & cert. ef. 11-23-11

735-070-0004

Cancellation and Suspension Actions Under ORS 809.310

(1) Pursuant to ORS 809.310(1) and (2) and 807.400(15), DMV will cancel any driver license, driver permit or identification card when DMV determines that it was issued on the basis of false information given to DMV or determines that the person is not entitled to driving privileges or the identification card. The cancellation action may be taken in addition to the suspension actions authorized by section (3) of this rule.

(2) When DMV cancels a person’s driver license, driver permit or identification card under section (1) of this rule, DMV may cancel any other driver license, driver permit or identification card issued to the person to which the person is not entitled or which was issued on the basis of false information given to DMV.

(3) Pursuant to ORS 809.310(3) and 809.415(5), DMV will suspend driving privileges and the right to apply for driving privileges if DMV determines that a person has knowingly committed any of the acts identified in ORS 809.310(3)(a) through (h). The suspension will be imposed regardless of when the act occurred.

(4) When DMV suspends a person’s driving privileges pursuant to ORS 809.411(9) because the person has been convicted of any of the acts identified in 809.310(3) (a) through (h), or because DMV has determined the person knowingly committed any of the acts identified in 809.310(3)(a) through (h), DMV will suspend any other driving privileges issued to the person and the person’s right to apply for driving privileges.

Stat. Auth.: ORS 184.616, 184.619 & 802.010

Stat. Imp.: ORS 809.310 & 809.320

Hist.: MV 8-1989, f. & cert. ef. 2-1-89; MV 18-1993, f. 12-17-93, cert. ef. 1-1-94; DMV 16-1994, f. & cert. ef. 12-20-94; DMV 16-2008, f. 6-23-08, cert. ef. 7-1-08; DMV 11-2011, f. & cert. ef. 11-23-11

 

Rule Caption: Police Reports for Implied Consent Suspension.

Adm. Order No.: DMV 12-2011

Filed with Sec. of State: 11-23-2011

Certified to be Effective: 11-23-11

Notice Publication Date: 10-1-2011

Rules Amended: 735-070-0054

Subject: OAR 735-070-0054 establishes the information required on the form police send to DMV to suspend driving privileges under the Implied Consent Laws following a driving under the influence arrest and the driver either fails or refuses a chemical test. DMV has removed the requirement that the form indicate if the person holds a commercial driver license, as DMV is also able to determine that information from the person’s driving record and amend the form accordingly. DMV has also removed the requirement that the form contain “a suspension period that conforms to the type of suspension in accordance with ORS 813.404 or 813.420.” At times the form received by DMV will not indicate the length of suspension. However, the form does include the person’s rights and consequences and that section of the form must be read by the police officer to the driver. The rights and consequences clearly state the suspension will be substantially longer if the person refuses a test. The rights and consequences also state: “if you fail or refuse a test, the suspension period will be longer and the wait time for a hardship permit increased if, within the last five years, you have been convicted of DUII, you have had your driving privileges suspended under the Motorist Implied Consent Law, or you have participated in a DUII diversion or similar program.” In Basile v. DMV, the Oregon Court of Appeals ruled that a specific box indicating suspension length need not be marked on the front of the form for the person to understand that his or her driving privileges are suspended and that the time is longer if he or she refused the test rather than failed the test. Further, the person can understand whether he or she will serve the minimum time or the longer time because of some other act within the last five years as mentioned in the rights and consequences. Because of the case law, DMV enters a suspension on a record even if the form does not indicate the length of suspension.

Rules Coordinator: Lauri Kunze—(503) 986-3171

735-070-0054

Police Reports for Implied Consent Suspension Under ORS 813.100, 813.120, 813.132 and 813.410

(1) A police report required by ORS 813.100 must be submitted to the Driver and Motor Vehicle Services Division of the Department of Transportation (DMV) on forms approved and distributed by the department.

(2) For the Driver Suspensions Unit to suspend a person’s non-commercial Class C driving privileges, commercial driver license, or both or right to apply for driving privileges or a commercial driver license under ORS 813.410 for failure of a breath test or for refusal of a breath, blood or urine test, the implied consent form(s) must:

(a) Be received by DMV on or before the 30th day after the date of arrest; and

(b) Contain the following information:

(A) Specify all of the following that apply:

(i) The person failed a breath test;

(ii) The person refused a breath test;

(iii) The person refused a blood test;

(iv)The person refused a urine test;

(v) The person was operating a commercial motor vehicle;

(vi) The person was operating a vehicle transporting hazardous materials.

(B) A date of arrest; and

(C) The reporting officer’s signature below the statement, “I affirm by my signature that the foregoing events occurred.” The officer’s signature will be considered acceptable if located anywhere on the line of the form directly below the statement.

(3) For the Driver Suspensions Unit to suspend a person’s non-commercial Class C driving privileges, commercial driver license, or both or right to apply for driving privileges or a commercial driver license under ORS 813.410 for failure of a blood test, the police report form must be received by DMV on or before the 45th day after the date of arrest and must indicate that the person failed a blood test and whether the person was operating a commercial motor vehicle, as well as the information required in paragraphs (2)(b)(B) and (C) of this rule.

(4) If an implied consent suspension has been posted pursuant to this rule and a timely hearing request has not been submitted as provided for in ORS 813.410(3), the driver may have the implied consent suspension withdrawn only by:

(a) Having the police agency or district attorney’s office follow procedures outlined in OAR 735-070-0055;

(b) Obtaining and prevailing at a hearing under ORS 813.440; or

(c) The Driver Suspension Unit, when it withdraws the suspension pursuant to ORS 813.460 and OAR 735-070-0060.

Stat. Auth.: ORS 184.616, 184.619, 802.010, 813.100 & 813.120.

Stats. Implemented: ORS 813.100, 813.120, 813.130 & 813.404 - 813.460

Hist.: DMV 7-1995, f. & cert. ef. 3-9-95; DMV 12-1995, f. & cert. ef. 12-14-95; DMV 9-1996, f. & cert. ef. 10-10-96; DMV 23-2004, f. & cert. ef. 11-17-04; DMV 12-2011, f. & cert. ef. 11-23-11

Notes
1.) This online version of the OREGON BULLETIN is provided for convenience of reference and enhanced access. The official, record copy of this publication is contained in the original Administrative Orders and Rulemaking Notices filed with the Secretary of State, Archives Division. Discrepancies, if any, are satisfied in favor of the original versions. Use the OAR Revision Cumulative Index found in the Oregon Bulletin to access a numerical list of rulemaking actions after November 15, 2011.

2.) Copyright 2012 Oregon Secretary of State: Terms and Conditions of Use

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