Amanda Rae Gaylord v. Driver and Motor Vehicle Services Division

The Driver and Motor Vehicle Services Division

(DMV) appeals from a judgment that set aside an administrative

order that suspended petitioner’s driver’s license for

a year. The circuit court ruled that an administrative law

judge (ALJ) had improperly excluded evidence of a urinalysis

of a sample that petitioner gave the morning after her

arrest for driving under the influence of intoxicants (DUII).

Going further, the circuit court concluded, after taking the

urinalysis into consideration, that there was no substantial

evidence to support the order suspending petitioner’s license.

DMV contends that the circuit court erred because the urinalysis

evidence is inadmissible and, in any event, there is

still substantial evidence to support the ALJ’s credibility

findings and, therefore, to support the suspension order.

We first conclude that the circuit court correctly

determined that the ALJ erred when excluding the urinalysis

evidence. We next conclude that the circuit court erred

by re-evaluating the competing credibility of petitioner and

the arresting officer. To do so was error because the court’s

proper role was a limited role of reviewing an agency decision.

We reverse and remand so that the ALJ, on behalf of

DMV, may make a credibility determination after consideration

of all the evidence, including the improperly excluded

urinalysis.

Our review and that of the circuit court is limited to

the record of the agency’s hearing. ORS 813.450(2). Neither

we, nor the circuit court, are the finders of fact. The role of

both courts is to review the DMV order for any errors of law

and to determine whether there is substantial evidence in

the record to support the order. Bianco v. DMV, 257 Or App

446, 448, 307 P3d 470 (2013); see ORS 813.450(4) (providing

standards for review). We begin with the undisputed historical

facts found by the ALJ.

In March 2013, Officer Scott arrived at the scene of

an accident. A witness reported having seen petitioner’s car

“suddenly veer across the lanes of travel and strike” a parked

car. The witness said that petitioner looked impaired. Scott

testified that petitioner showed signs of impairment: she

was unsteady on her feet, her pupils were constricted, she

814 Gaylord v. DMV

had facial tremors, her movements were slow, her speech

was slurred, and she appeared dazed and disoriented.

Scott asked petitioner if she would perform field

sobriety tests, and she initially refused. Scott told petitioner

about the tests and that her refusal to take those tests could

be used against her. Petitioner refused again. Scott arrested

her, and, on the way to the police station, he observed that

she was “nodding off” in the back of the car.

At the police station, petitioner used her phone.

When she was done, she told the officer that she would agree

to perform the field sobriety tests. Scott administered them.

Petitioner exhibited six out of six possible clues for impairment

during the horizontal gaze nystagmus test, eight out

of eight possible clues for impairment during the walk-andturn

test, and two out of four possible clues for impairment

during the one-leg stand test.

During his discussion with petitioner, Scott relied

on the department’s Implied Consent Combined Report

(ICCR). That document contains the admonitions that the

implied consent law requires police to give to a DUII suspect.

According to Scott, his usual practice is to use the

ICCR during discussions with DUII suspects because there

is a “long list” of admonitions to give and it is “easy to skip

one.” Scott testified that he usually will put a check mark

next to each paragraph that he has read to a suspect. In

this instance, the document he used has check marks next

to each paragraph in Section I, the section that contains

admonitions relevant to breath tests for impairment. There

are no check marks next to the paragraphs in Section II,

the section with admonitions relevant to urine tests. Scott

asked petitioner to take a breath test. She cooperated, and

the results indicated a blood alcohol content of 0.00 percent

alcohol by volume. Scott also asked petitioner to take a urine

test, but she refused. As a consequence, Scott told petitioner

that her license would be suspended. Using the ICCR, Scott

reported to DMV that petitioner had refused the request for

a urine sample.

DMV proposed to suspend petitioner’s license for

a year. To challenge the suspension, petitioner requested a

hearing. It was conducted live, albeit by telephone. In the

Cite as 283 Or App 811 (2017) 815

hearing, the parties disagreed about the events that led to

petitioner refusing to take a urine test. According to the

DMV, Scott informed petitioner of all the “rights and consequences”

provided by Oregon’s Motorist Implied Consent

Law. Scott testified that he told petitioner that, if she refused

to submit to either a breath test or a urine test, her refusal

to the tests could be used against her in subsequent court

proceedings.

Petitioner agreed that Scott told her of the consequences

of refusing a breath test, but she contended that

Scott did not tell her of the consequences of refusing a urine

test. Petitioner testified that, after she was released from

custody, she went to an emergency care clinic to see if it could

perform a urinalysis. Reportedly, the clinic refused, because

petitioner did not have any acceptable identification, given

that the police had confiscated her driver’s license. Later,

petitioner found a lab that would perform the test, and, at

around 8:00 a.m. the following morning, she provided the

lab with a urine sample.

During the hearing, petitioner attempted to have

the results of her privately-obtained urinalysis admitted as

evidence. The ALJ concluded that the belated urinalysis was

not relevant to any issue and refused to allow it to be admitted

into evidence. The ALJ rejected petitioner’s argument to

the effect that the test results were relevant because they

made more likely her testimony that she was not told that

a refusal to take a urine test would result in a license suspension.

Rejecting petitioner’s rationale, the ALJ observed

that “the issue is not whether there was actually something

in her system, it is just whether she refused the urine test.”

The ALJ reasoned that the issue of whether Scott recited

the admonitions about a urine sample would be resolved

through the direct testimony of Scott and petitioner.

As for that competing testimony, the ALJ had

observed that there are “factors that cut both ways regarding

the witnesses’ credibility.” On one hand, the ALJ noted

that Scott’s ICCR lacked check marks next to Section II concerning

a urine test. According to the ALJ, the lack of check

marks indicated that, “if [Scott] followed his usual practice,

he did not read those required paragraphs to petitioner prior

816 Gaylord v. DMV

to asking her to submit to the urine test.” On the other hand,

the ALJ acknowledged that Scott testified under oath that

“he did, in fact, read those paragraphs to petitioner.” Taken

together, the ALJ found Scott to be credible. The ALJ reasoned

that Scott’s sworn testimony about his specific interaction

with petitioner outweighed the doubt from deviation

from his usual practice.

When evaluating both witnesses’ credibility, the

ALJ relied on the factors discussed in Tew v. DMV, 179

Or App 443, 449, 40 P3d 551 (2002). The ALJ found that,

according to petitioner’s own testimony, she was “dazed

and disoriented from the accident”; that she “exhibited several

indicia of impairment”; that petitioner had a substantial

personal interest in the outcome of the case; that Scott

had no personal interest in the case; and that Scott was a

“trained observer.” The ALJ found that, although petitioner

“sincerely believed that her testimony was truthful,” Scott’s

testimony was more credible than hers. Consequently, the

ALJ found that Scott had read “Section II of the ICCR in its

entirety to petitioner prior to asking her to submit to a urine

test.” The ALJ concluded that DMV had “established all of

the requirements for a valid suspension.”

Petitioner sought judicial review of that order and

argued, among other things, that the ALJ erred when he

excluded evidence of the results of the privately obtained

urinalysis and that there was no substantial evidence to

support the ALJ’s credibility determinations. The circuit

court ruled that the urinalysis results were relevant and

that the ALJ should have admitted the evidence. The circuit

court reasoned that petitioner’s clean results were relevant

because “whether petitioner was under the influence is probative

of her ability to accurately recall whether the officer

gave her implied consent warnings.”

Going further, the circuit court concluded that the

suspension order, which turned on the ALJ’s credibility

determination, was not supported by substantial evidence.

To reach that conclusion, the circuit court criticized several

of the ALJ’s findings of fact. First, the court accepted petitioner’s

argument that Scott’s credibility was impeached

by the results of the breath test. Scott had testified at the

Cite as 283 Or App 811 (2017) 817

hearing that he could smell alcohol on petitioner’s breath.

The breath test, however, was negative for alcohol. Next, the

circuit court accepted petitioner’s argument that the ALJ’s

finding that petitioner felt “dazed and disoriented” may have

overstated her testimony. Petitioner argued that she felt

dazed around the time of the accident, not necessarily that

she felt dazed around the time that Scott purportedly gave

her the implied consent warnings. Finally, the circuit court

questioned the Tew consideration that petitioner had an

interest in the outcome of the case. In the court’s view, that

point alone could not be a basis for determining petitioner’s

credibility because, “[o]therwise, no petitioner would ever be

found credible.” Adding the clean urinalysis to the circumstances,

the circuit court concluded that Scott’s testimony

could not be found more credible than petitioner’s, and, all

in all, no substantial evidence supported the suspension

order. The court set aside petitioner’s license suspension.

The court’s reasoning implicates two aspects of our

review of the ALJ’s order. Our review of the evidentiary

issue calls upon our responsibility to determine whether

“the department has erroneously interpreted a provision of

law and that a correct interpretation compels a particular

action.” ORS 813.450(4)(a). Our review of the issue of competing

credibility calls upon our more limited responsibility

to review for “substantial evidence in the record.” ORS

813.450(4)(c). The latter responsibility means that “a judge

may not substitute his or her opinion for that of the hearings

officer on a finding of fact if there is substantial evidence in

the administrative record to support that fact, even though

there also might be substantial evidence to support a contrary

finding.” Wood v. MVD, 93 Or App 575, 577, 763 P2d

190 (1988).

Under Oregon’s implied consent law, “[a]ny person

who operates a motor vehicle upon premises open to the public

or the highways of this state” and who is arrested for

DUII, “shall be deemed to have given consent * * * to a chemical

test of the person’s breath,” ORS 813.100(1), and to “a

chemical test of the person’s urine,” ORS 813.131(1). Police

are required to confiscate a person’s driver’s license if the

person refuses to consent to those tests and several other

conditions, set by statute, are present. ORS 813.100(3)(a);

818 Gaylord v. DMV

ORS 813.131; ORS 813.132. One of those conditions is that

police must inform the person that a refusal to take either

of those tests will result in the suspension of driving privileges.

ORS 813.130(2)(c); ORS 813.132(2).

A person may request a hearing to contest a proposed

license suspension. ORS 813.410. The scope of that

hearing is prescribed by ORS 813.410(6).1 As the ALJ

observed, a person who refuses a breath or urine test may

have their driver’s license suspended regardless of whether

they actually drove under the influence of an intoxicant. See

ORS 813.100(3) (refusal of a breath or urine test required by

the implied consent law is an independent basis for a license

suspension).

On appeal, DMV argues that the ALJ correctly

excluded the results of petitioner’s urinalysis and that the

1 In relevant part, ORS 813.410(6) provides:

“This subsection shall be narrowly construed so as to effect the legislative

purpose of limiting the scope of hearings under this section. The scope

of a hearing under this section shall be limited to whether the suspension is

valid as described in this subsection. A suspension under this section is valid

if all of the following requirements have been met:

“(a) The person, at the time the person was requested to submit to a test

under ORS 813.100, was under arrest for driving while under the influence of

intoxicants in violation of ORS 813.010 or a municipal ordinance.

“(b) The police had reasonable grounds to believe, at the time the request

was made, that the person arrested had been driving under the influence of

intoxicants in violation of ORS 813.010 or of a municipal ordinance.

“(c) The person refused a test under ORS 813.100, or took a breath or

blood test and the test disclosed that the level of alcohol in the person’s blood

at the time of the test was [in violation of described standards].

“* * * * *

“(e) The person had been informed under ORS 813.100 of rights and consequences

as described under ORS 813.130.

“(f) The person was given written notice required under ORS 813.100.”

As for a urine test, in relevant part, ORS 813.132 provides:

“(1) Except as otherwise provided in this section, a refusal to take a

urine test requested under ORS 813.131 shall be treated for all purposes as a

refusal to take a breath test. * * *

“(2) Before any test of urine may be administered under ORS 813.131, in

addition to information described in ORS 813.130, the person asked to take

the test shall be informed that if the person refuses the test, the person’s

driving privileges will be suspended for the same time period and with the

same consequences as if the person had refused the breath test and that a

suspension for refusal of the urine test will be consecutive to any other suspension

under the Motorist Implied Consent Law.”

Cite as 283 Or App 811 (2017) 819

circuit court erred by concluding otherwise.2 In an administrative

proceeding, the law of evidence is governed generally

by ORS 183.450, which provides, in part:

“Irrelevant, immaterial or unduly repetitious evidence

shall be excluded but erroneous rulings on evidence shall

not preclude agency action on the record unless shown to

have substantially prejudiced the rights of a party. All

other evidence of a type commonly relied upon by reasonably

prudent persons in conduct of their serious affairs

shall be admissible. * * *”

ORS 183.450(1). The Oregon Administrative Procedures

Act does not define the term “irrelevant” or its antonym

“relevant.” But we may refer to the related provisions of the

Oregon Evidence Code. See PGE v. Bureau of Labor and

Industries, 317 Or 606, 611, 859 P2d 1143 (1993) (when interpreting

the meaning of a statutory term we consider “the

context of the statutory provision at issue, which includes

other provisions of the same statute and other related statutes”);

see also Arlington Ed. Assn. v. Arlington Sch. Dist.

No. 3, 177 Or App 658, 663, 34 P3d 1197 (2001), rev den, 333

Or 399 (2002) (defining a term in ORS 183.450 with reference

to a related term in the evidence code). Under OEC 401,

evidence is relevant if it has any “tendency to make the existence

of any fact that is of consequence to the determination

of the action more probable or less probable than it would be

without the evidence.”

2 DMV also argues that we may affirm the ALJ’s ruling on the alternative

ground that petitioner did not lay an adequate foundation for the admission of the

urine test results. Specifically, DMV asserts:

“There is no evidence in this record showing what was tested for, or how,

or whether the lab was certified to do any testing. Nor is there any evidence

as to how long common central nervous system depressants persist in urine,

and whether they would have been discovered in a test performed the day

following the arrest.”

That argument was not raised before the ALJ. Had it been, petitioner would have

had the opportunity to respond by supplementing the record. As a result, we cannot

affirm the ALJ’s ruling based on DMV’s argument about an improper foundation.

See Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634, 660, 20

P3d 180 (2001) (we may exercise our discretion to affirm on an alternative basis

only when certain conditions are met, including that “the record materially be

the same one that would have been developed had the prevailing party raised the

alternative basis for affirmance below”).

820 Gaylord v. DMV

According to the ALJ, petitioner’s urinalysis was

not relevant because the validity of the suspension of petitioner’s

driver’s license does not depend on whether she was

under the influence of an intoxicating substance while she

was driving. It is certainly true that, in relevant part here,

the state was only required to prove that (1) petitioner was

under arrest for driving under the influence, (2) petitioner’s

breath test disclosed a blood alcohol content of less than

0.08 percent, (3) police had a reasonable suspicion that she

had been driving under the influence, (4) she was informed

that her license would be suspended if she refused a urine

test, and (5) she refused the test. See ORS 813.410(6); ORS

813.132(2).

We conclude, however, that, due to the way that this

case developed, the question of petitioner’s sobriety became

relevant because her sobriety became a factor in the determination

about the reliability of her memory and, thus, to

her credibility and, in turn, to that of the officer. In Tew,

we identified several factors “other than the manner of testifying”

that may be used to assess a witness’s credibility:

“the inherent probability of the evidence, internal inconsistencies,

whether or not the evidence is corroborated, and

whether human experience demonstrates that the evidence

is logically incredible.” 179 Or App at 449. As important here,

we recognized in Tew that the consumption of intoxicating

substances “can affect a person’s ability to perceive and

remember.” Id. at 450. In this case, the ALJ’s assessment of

petitioner’s credibility expressly relied on the finding that,

while there was little to indicate that petitioner’s testimony

was meant to be intentionally deceptive, her memory of the

events was suspect because she “exhibited several indicia

of impairment” around the time of the events in question.

If she was not under the influence, then her memory would

not be suspect for that reason. Because her memory was at

issue, her sobriety was relevant, after all.

In addition, petitioner’s urinalysis is relevant for

another reason. The test results tend to corroborate petitioner’s

testimony about what she did after she was released

from custody and, therefore, to reflect on her relative willingness

or resistance to have given a sample if actually

advised. She testified that as soon as she was released from

Cite as 283 Or App 811 (2017) 821

custody she tried to find a facility that would perform a urinalysis

for her. The urinalysis provides some probative support

for the suggestion that petitioner was willing to provide

a urine sample to maintain her driver’s license—consistent

with her testimony that she asked Scott, after her refusal

and his announcement of her suspension, to take the test,

after all. The urinalysis provides probative support for the

argument that, if petitioner had actually been told that it

would result in a driver’s license suspension, she would not

have refused the urine test. Put in petitioner’s terms, the

urinalysis shows that she had “no motive” to refuse cooperation

because she had nothing to hide. Therefore, the urinalysis

has a tendency to make more likely that she was

not informed of the consequences of refusal. For all of those

reasons, we conclude that it was indeed error for the ALJ to

exclude petitioner’s belated, privately-obtained urinalysis.

We conclude that the ALJ’s decision to exclude

that evidence “substantially prejudiced” petitioner. ORS

183.450(1). The hearing on petitioner’s license suspension

was primarily a credibility battle between petitioner and

Scott, who were the only two witnesses to testify about the

events leading to petitioner’s refusal to submit to a urine

test. The results of petitioner’s urinalysis go to the heart

of that case because, as we have explained, those results

would have bolstered petitioner’s credibility by reducing the

probability that petitioner was intoxicated and by increasing

the probability that she was not provided the requisite

warnings. See OR-OSHA v. Tom O’Brien Construction Co.,

Inc., 148 Or App 453, 462, 941 P2d 550 (1997), aff’d, 329

Or 348, 986 P2d 1171 (1999) (where excluded evidence had

the tendency to rebut testimony of a witness for opposing

party on which the ALJ expressly relied, the exclusion was

prejudicial).

Although we agree with the circuit court on the

evidentiary issue, we disagree with the circuit court in its

“substantial evidence” review of the suspension order. Our

disagreement is based on the limited role of a reviewing

court of an agency decision and the effect of a legal error on

substantial evidence review. Under ORS 813.450(2) and (4),

both the circuit court and this court serve a review function

that is “limited to the record of the department’s hearing.”

822 Gaylord v. DMV

See Bianco, 257 Or App at 448 (the DMV order is the focus

of the two courts’ appellate-style review); Shakerin v. DMV,

101 Or App 357, 360, 790 P2d 1180 (1990) (explaining statute).

In its review of a suspension order, the circuit court

is not a trial court in the typical sense of making findings

of fact. As noted above, a court’s review function is not to

substitute a court’s findings of fact for an ALJ’s findings of

fact, when there is substantial evidence in the record for

the ALJ’s finding. This is true even when there is also substantial

evidence to the contrary. Wood, 93 Or App at 577.

When in a review role, a court does not review for the better

evidence. A “substantial evidence review does not entail or

permit the reviewing tribunal to reweigh or to assess the

credibility of the evidence that was presented to the factfinding

body.” Golliher v. DMV, 173 Or App 586, 590, 22 P3d

780 (2001) (internal quotation marks omitted). Review for

substantial evidence is “review to determine whether a reasonable

person could have made the findings supporting the

decision, not whether a reasonable person could have made

different findings.” Shakerin, 101 Or App at 360.

After concluding that the ALJ committed legal

error, the circuit court proceeded to assess the relative credibility

of Scott and petitioner. However, the consequence

of legal error in this circumstance is that the court must

remand the case to DMV for the ALJ to assess the record in

the first instance. Therefore, we remand the matter to DMV

in order that the ALJ may reassess credibility in light of all

admissible evidence. See Bianco, 257 Or App at 460 (reversing

judgment of the circuit court and remanding to DMV “so

that the ALJ, on behalf of DMV, can reconsider the issue”).

Reversed and remanded with instructions to

remand to DMV for further proceedings consistent with this

opinion.