(2) Recklessly endangering another person is a Class A misdemeanor.

(a) The person violates ORS 164.345, and as a result thereof, damages property in an amount exceeding $100; or

(b) Having no right to do so nor reasonable ground to believe that the person has such right, the person intentionally damages property of another, or, the person recklessly damages property of another in an amount exceeding $100.

(2) Criminal mischief in the second degree is a Class A misdemeanor.

(a) Drives a vehicle on an interstate highway at a speed greater than 65 miles per hour or, if a different speed is posted under ORS 810.180 (3), at a speed greater than the posted speed.

(b) Notwithstanding paragraph (a) of this subsection, drives any of the following vehicles at a speed greater than 55 miles per hour on any highway or, if a different speed is posted under ORS 810.180 (3), at a speed greater than the posted speed:

(A) A motor truck with a gross vehicle weight rating of more than 10,000 pounds or a truck tractor with a gross vehicle weight rating of more than 8,000 pounds.

(B) A school bus.

(C) A school activity vehicle.

(D) A worker transport bus.

(E) A bus operated for transporting children to and from church or an activity or function authorized by a church.

(F) Any vehicle used in the transportation of persons for hire by a nonprofit entity as provided in ORS 825.017(9).

(c) Drives a vehicle or conveyance on any part of the ocean shore in this state at a speed greater than any of the following:

(A) Any designated speed for ocean shores that is established and posted under ORS 810.180.

(B) If no designated speed is posted under ORS 810.180, 25 miles per hour.

(d) Drives a vehicle upon a highway in any city at a speed greater than a speed posted by authority granted under ORS 810.180 or, if no speed is posted, the following:

(A) Fifteen miles per hour when driving on an alley or a narrow residential roadway.

(B) Twenty miles per hour in a business district.

(C) Twenty-five miles per hour in a public park.

(D) Twenty-five miles per hour on a highway in a residence district if the highway is not an arterial highway.

(E) Sixty-five miles per hour on an interstate highway.

(F) Fifty-five miles per hour in locations not otherwise described in this paragraph.

(e) Drives a vehicle in a school zone at a speed greater than 20 miles per hour if the school zone is:

(A) A segment of highway described in ORS 801.462 (1)(a) and:

(i) The school zone has a flashing light used as a traffic control device and operated under ORS 811.106 and the flashing light indicates that children may be arriving at or leaving school; or

(ii) If the school zone does not have a flashing light used as a traffic control device, the person drives in the school zone between 7 a.m. and 5 p.m. on a day when school is in session.

(B) A crosswalk described in ORS 801.462 (1)(b) and:

(i) A flashing light used as a traffic control device and operated under ORS 811.106 indicates that children may be arriving at or leaving school; or

(ii) Children are present, as described in ORS 811.124.

(2) The offense described in this section, violating a speed limit, is punishable as provided in ORS 811.109.

(2) The offense described in this section, careless driving, applies on any premises open to the public and is a Class B traffic violation unless commission of the offense contributes to an accident. If commission of the offense contributes to an accident, the offense is a Class A traffic violation.

(2) The use of the term "recklessly" in this section is as defined in ORS 161.085.

(3) The offense described in this section, reckless driving, is a Class A misdemeanor and is applicable upon any premises open to the public.

(a) Drinks any alcoholic liquor in a motor vehicle when the vehicle is upon a highway.

(b) Possesses on one's person, while in a motor vehicle upon a highway, any bottle, can or other receptacle containing any alcoholic liquor, which has been opened, or a seal broken, or the contents of which have been partially removed.

(c) Keeps in a motor vehicle when the vehicle is upon any highway, any bottle, can or other receptacle containing any alcoholic liquor, which has been opened, or a seal broken, or the contents of which have been partially removed. The following apply to this paragraph:

(A) This paragraph applies only to the registered owner of any motor vehicle or, if the registered owner is not then present in the vehicle, to the driver of the vehicle.

(B) This paragraph does not apply if the bottle, can or other receptacle is kept in the trunk of the vehicle, or kept in some other area of the vehicle not normally occupied by the driver or passengers if the vehicle is not equipped with a trunk.

(C) For purposes of this paragraph, a utility compartment or glove compartment is considered within the area occupied by the driver and passengers.

(D) This paragraph does not apply to the living quarters of a camper or motor home.

(2) The offense described in this section does not apply to passengers in a motor vehicle operated by a common carrier and used primarily to carry passengers for hire.

(3) The offense described in this section, violation of the open container law in a motor vehicle, is a Class B traffic violation.

(a) Drives a motor vehicle upon a highway during a period when the person's driving privileges or right to apply for driving privileges have been suspended or revoked in this state by a court or by the Department of Transportation.

(b) Drives a motor vehicle outside the limitations of a probationary permit issued under ORS 807.270 or a hardship driver permit issued under ORS 807.240, including any limitations placed on the permit under ORS 813.510.

(c) Drives a commercial motor vehicle upon a highway during a period when the person's commercial driver license has been suspended, regardless of whether or not the person has other driving privileges granted by this state.

(2) Affirmative defenses to the offense described in this section are established under ORS 811.180.

(3) The offense described in this section is applicable upon any premises open to the public.

(4) The offense described in this section, violation driving while suspended or revoked, is a Class A traffic violation except as otherwise provided in ORS 811.182.

(a) If the person is the driver of any vehicle involved in an accident that results only in damage to a vehicle that is driven or attended by any other person the person must perform all of the following duties:

(A) Immediately stop the vehicle at the scene of the accident or as close thereto as possible. Every stop required under this subparagraph shall be made without obstructing traffic more than is necessary.

(B) Remain at the scene of the accident until the driver has fulfilled all of the requirements under this paragraph.

(C) Give to the other driver or passenger the name and address of the driver and the registration number of the vehicle that the driver is driving and the name and address of any other occupants of the vehicle.

(D) Upon request and if available, exhibit and give to the occupant of or person attending any vehicle damaged the number of any documents issued as evidence of driving privileges granted to the driver.

(b) If the person is the driver of any vehicle that collides with any vehicle that is unattended, the person shall immediately stop and:

(A) Locate and notify the operator or owner of the vehicle of the name and address of the driver and owner of the vehicle striking the unattended vehicle; or

(B) Leave in a conspicuous place in the vehicle struck a written notice giving the name and address of the driver and of the owner of the vehicle doing the striking and a statement of the circumstances thereof.

(c) If the person is the driver of any vehicle involved in an accident resulting only in damage to fixtures or property legally upon or adjacent to a highway, the person shall do all of the following:

(A) Take reasonable steps to notify the owner or person in charge of the property of such fact and of the driver's name and address and of the registration number of the vehicle the driver is driving.

(B) Upon request and if available, exhibit any document issued as official evidence of a grant of driving privileges to the driver.

(2) The offense described in this section, failure to perform the duties of a driver when property is damaged, is a Class A misdemeanor and is applicable on any premises open to the public.

(a) Immediately stop the vehicle at the scene of the accident or as close thereto as possible. Every stop required under this paragraph shall be made without obstructing traffic more than is necessary.

(b) Remain at the scene of the accident until the driver has fulfilled all of the requirements under this subsection.

(c) Give to the other driver or surviving passenger or any person not a passenger who is injured as a result of the accident the name and address of the driver and the registration number of the vehicle that the driver is driving and the name and address of any other occupants of the vehicle.

(d) Upon request and if available, exhibit and give to the persons injured or to the occupant of or person attending any vehicle damaged the number of any document issued as official evidence of a grant of driving privileges.

(e) Render to any person injured in the accident reasonable assistance, including the conveying or the making of arrangements for the conveying of such person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such conveying is requested by any injured person.

(f) Remain at the scene of an accident until a police officer has arrived and has received the required information, if all persons required to be given information under paragraph (c) of this subsection are killed in the accident or are unconscious or otherwise incapable of receiving the information. The requirement of this paragraph to remain at the scene of an accident until a police officer arrives does not apply to a driver who needs immediate medical care, who needs to leave the scene in order to secure medical care for another person injured in the accident or who needs to leave the scene in order to report the accident to the authorities, so long as the driver who leaves takes reasonable steps to return to the scene or to contact the nearest police agency.

(2)(a) Except as otherwise provided in paragraph (b) of this subsection, the offense described in this section, failure to perform the duties of a driver to injured persons, is a Class C felony and is applicable on any premises open to the public.

(b) Failure to perform the duties of a driver to injured persons is a Class B felony if a person suffers serious physical injury as defined in ORS 161.015 or dies as a result of the accident.

(a) Must be filed within 30 days after the date of the defendant's first appearance on the summons, unless a later filing date is allowed by the court upon a showing of good cause. For purposes of this paragraph, the filing of a demurrer, a motion to suppress or a motion for an omnibus hearing does not constitute good cause.

(b) Notwithstanding paragraph (a) of this subsection, may not be filed after entry of a guilty plea or a no contest plea or after commencement of any trial on the charge whether or not a new trial or retrial is ordered for any reason.

(2) The defendant shall pay to the court, at the time of filing a petition for a driving while under the influence of intoxicants diversion agreement, a filing fee established under ORS 813.240. The court may make provision for payment of the filing fee by the defendant on an installment basis. The court may waive all or part of the filing fee in cases involving indigent defendants. The filing fee paid to the court under this subsection shall be retained by the court if the petition is allowed. The filing fee shall be distributed as provided by ORS 813.240.

(3) The defendant shall pay to the agency or organization providing the diagnostic assessment, at the time the petition is allowed, the fee required by ORS 813.240 (2).

(4)(a) Unless otherwise provided under paragraph (b) of this subsection, the defendant shall pay to the court any court-appointed attorney fees agreed to under ORS 813.200 (4)(i). Payments shall be made prior to the end of the diversion period on a schedule determined by the court.

(b) The court may waive all or part of the court-appointed attorney fees agreed to under ORS 813.200 (4)(i).

(5) The defendant shall cause a copy of the petition for a driving while under the influence of intoxicants diversion agreement to be served upon the district attorney or city attorney. The district attorney or city attorney may file with the court, within 15 days after the date of service, a written objection to the petition and a request for a hearing.

(1) The defendant had no charge of an offense of driving while under the influence of intoxicants or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement;

(2) The defendant has not been convicted of an offense described in subsection (1) of this section within the period beginning 10 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement;

(3) The defendant was not participating in a driving while under the influence of intoxicants diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in any other jurisdiction on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement;

(4) The defendant did not participate in a diversion or rehabilitation program described in subsection (3) of this section, other than a program entered into as a result of the charge for the present offense, within the period beginning 10 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement;

(5) The defendant had no charge of an offense of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in any other jurisdiction on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement;

(6) The defendant has not been convicted of an offense described in subsection (5) of this section within the period beginning 10 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement;

(7) The defendant did not have a commercial driver license at the time of the offense;

(8) The defendant was not operating a commercial motor vehicle at the time of the offense; and

(9) The present driving while under the influence of intoxicants offense did not involve an accident resulting in:

(a) Death of any person other than the defendant; or

(b) Physical injury as defined in ORS 161.015 to any person other than the defendant.

(1) Shall consider whether the diversion will be of benefit to the defendant and the community.

(2) May take into consideration whether there was an early recognition by the defendant during the proceeding that a course of diagnosis and treatment of problem drinking, alcoholism or drug dependency would be beneficial.

(3) May take into consideration whether there is a probability that the defendant will cooperate with the diagnostic assessment and treatment agencies.

(4) May take into consideration whether the defendant will observe the restrictions contained in the diversion agreement.

(5) May take into consideration whether the offense was committed in a motor vehicle and whether there was a passenger in the motor vehicle who was under 18 years of age and at least three years younger than the defendant.

(6) Shall deny the petition for a driving while under the influence of intoxicants diversion agreement if the defendant failed to appear at an arraignment on the present offense without good cause.

(7) Shall deny the petition for a driving while under the influence of intoxicants diversion agreement if the defendant was charged with or convicted of an offense of driving while under the influence of intoxicants or its statutory counterpart in any jurisdiction after the date the defendant filed the petition.

(8) Shall deny the petition for a driving while under the influence of intoxicants diversion agreement if the defendant participated in a driving while under the influence of intoxicants diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in any other jurisdiction after the date the defendant filed the petition.

(9) Shall deny the petition for a driving while under the influence of intoxicants diversion agreement if the defendant was charged with or convicted of an offense of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle in this state or in any other jurisdiction after the date the defendant filed the petition.

(2) If the department receives from a police officer a report pursuant to ORS 813.120 that discloses that the person holds a commercial driver license and that the person was driving a motor vehicle or commercial motor vehicle and refused to submit to a test under ORS 813.100 or that the person was driving a commercial motor vehicle and submitted to a breath or blood test and the person's blood, as shown by the test, had 0.04 percent or more by weight of alcohol, the department shall suspend the person's commercial driver license on the 30th day after the date of arrest or, if the report indicates that the person failed a blood test, on the 60th day after receipt of the report, unless, at a hearing described under this section, the department determines that the suspension would not be valid as described in this section. A commercial driver license suspension imposed under this subsection shall be for a period of time established under ORS 813.404.

(3) If within 10 days from the date of arrest, or, if the person fails a blood test, within 10 days from the date the department sends notice of suspension, the department receives a written request for a hearing from a person whose driving privileges or commercial driver license the department proposes to suspend under this section, the department shall provide a hearing in accordance with this section. Except as otherwise provided under this section, a hearing held by the department under this section shall be subject to the provisions for contested cases, other than appeal provisions, under ORS chapter 183. The applicable appeal provisions are as provided under ORS 813.450 and section 24, chapter 672, Oregon Laws 1985. Notwithstanding ORS 809.430, the department is not required to give any notice of intent to suspend or suspension in addition to that provided under ORS 813.100.

(4) A hearing required by this section is subject to all of the following:

(a) The hearing shall be before an administrative law judge assigned from the Office of Administrative Hearings established under ORS 183.605.

(b) Unless there is an agreement between the person and the department that the hearing be conducted elsewhere, the hearing shall be held either in the county where the alleged offense occurred or at any place within 100 miles of the place where the offense is alleged to have occurred, as established by the department by rule.

(c) The department may authorize the administrative law judge to issue a final order in any case.

(d) A person who requests a hearing under this section and who fails, without just cause, to appear in person or through an attorney waives the right to a hearing. If a person waives a right to a hearing under this paragraph, the department is not required to make any showing at hearing.

(e) Except as provided in ORS 813.440 or upon remand under ORS 813.450, the department shall hold the hearing and issue a final order within 30 days of the date of the arrest or, if the person fails a blood test, within 60 days from the date the department received the report of the failure.

(f) In connection with the hearing, the department or its authorized representative may administer oaths and shall issue subpoenas for the attendance of witnesses at the hearing requested by the person or the department and the production of relevant documents.

(g) The hearing shall be recorded by whatever means may be determined by the department and shall include testimony and exhibits, if any. The record of the proceedings shall not be transcribed unless requested by a party to the proceeding.

(5) 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:

(A) 0.08 percent or more by weight if the person was not driving a commercial motor vehicle;

(B) 0.04 percent or more by weight if the person was driving a commercial motor vehicle; or

(C) Any amount if the person was under 21 years of age.

(d) If the report under ORS 813.120 indicates that the person was driving a commercial motor vehicle, the vehicle was in fact a commercial motor vehicle as defined in ORS 801.208.

(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.

(g) If the person arrested submitted to a test under ORS 813.100, the person administering the test was qualified to administer the test under ORS 813.160.

(h) If the person arrested submitted to a test under ORS 813.100, the methods, procedures and equipment used in the test complied with requirements under ORS 813.160.

(6) A suspension imposed under this section shall remain in effect pending any appeal or remand of a final order issued under this section and there shall be no stay of the suspension pending appeal or remand.

(7) Unless a person fails, without just cause, to appear in person or through an attorney at a hearing requested under this section, a person shall have the right to appeal any final order by the department after a hearing under this section by filing a petition. The following apply to this subsection:

(a) The person shall file the petition in the circuit court for the county where the person resides or, if the person does not reside in Oregon, in the circuit court of the county in which the arrest took place within 30 days after issuance of the final order of the department.

(b) The court upon receipt of the petition shall set the matter for hearing upon 10 days' notice to the department and the petitioner unless hearing is waived by both the department and the petitioner.

(1) Difficulty in walking or unusual walking.

(2) Difficulty standing.

(3) Difficulty following directions.

(4) Odor of alcoholic beverage on the breath

(5) Flushed or pale appearance.

(6) Speech difficulties or unusual speech patterns.

(7) Disorderly or unusual conduct or demeanor.

(8) Lack of muscular coordination or muscular tremors.

(9) Evidence of mental disturbance.

(10) Visual disorders or difficulties.

(11) Sleepiness or drowsiness.

(12) Dizziness.

(13) Nausea or vomiting.

(14) Mood swings.

(15) Difficultly with divided attention.

(16) Bloodshot and/or watery and/or glassy eyes.

(a) Horizontal Gaze Nystagmus (HGN);

(b) Walk and turn test;

(c) One Leg Stand;

(d) Modified Finger to Nose Test;

(e) Finger Count;

(f) Alphabet;

(g) Counting;

(h) Internal Clock;

(i) Romberg Balance Test.

(2) The following additional approved tests may be performed by police officers who have completed the 8-hour "Drugs That Impair Driving" curriculum:

(a) Lack of Convergence Test;

(b) Pupil Size Estimation;

(c) Pulse Rate Examination.

(3) Officers trained and approved by the Oregon State Police as a Drug Recognition Expert (DRE) may utilize any of the above listed tests plus the following approved tests which are only included in the DRE training. Tests which may be utilized upon successful completion of the 72-hours of DRE training include:

(a) Physical examination tests including the following: the person's vital signs (pulse, temperature and blood pressure); the person's psychophysical responses (coordination of mind and body); signs of administration of drugs (injection sites, etc.); eye responses (horizontal/vertical gaze nystagmus, eye convergence, pupil size under varying light intensities); and physical and behavioral characteristics (muscle rigidity or flaccidity, hyperactivity, etc.).

(4) These rules are necessary for the implementation of ORS 801.272. No stop, arrest, civil or criminal proceeding commenced prior to the effective date of these rules is affected by the requirements of these rules.

(a) Horizontal Gaze Nystagmus: The police officer must have received training in the administration of the Horizontal Gaze Nystagmus (HGN) test by the Oregon State Police, BPSST, or other governmental entity prior to its administration under this rule. The officer shall use a stimulus (such as a finger, pencil or penlight) held vertically in front of the person's face approximately 12 to 15 inches away from the person's face. The person tested must hold their head still. The officer, during the administration of the testing procedures, should conduct the testing procedures in the order listed unless circumstances or conditions dictate otherwise:

(A) The officer shall move the stimulus from the center of the face to the side, checking for the lack of smooth pursuit of the eyes as they track the stimulus;

(B) The officer shall check for distinct nystagmus at the maximum deviation of each eye;

(C) The officer shall check for the onset of nystagmus prior to 45 degrees in each eye.

(b) Walk and Turn Test: The officer will instruct the person, while standing, to place the person's left foot on a line (if no line is available, use a general direction for the person to walk an imaginary line) then place the right foot on the line with the heel of that foot ahead of the toes of the left foot. Instruct the person to take nine steps down the line, keeping arms at sides, looking at feet, and counting each step while walking heel-to-toe. Instruct the person how to turn (at the discretion of the officer) and to walk back in the same manner previously described. Generally demonstrate the test.

(c) One Leg Stand: Instruct the person to stand straight with the person's feet together and arms at the sides. Instruct the person to raise one foot approximately six inches off the ground while looking at the foot, and to count "1001, 1002, 1003," etc., until told to stop by the officer. The officer will then time the person for thirty seconds. The person will count 1001, 1002, 1003, etc., until told to stop by the officer. The officer may conduct the same test with the other foot. Generally demonstrate the test.

(d) Romberg Balance Test:

(A) Instruct the person to stand straight with feet together with arms at the person's sides.

(B) While standing as described above, instruct the person to tilt their head backward, close their eyes and estimate the passage of thirty seconds before opening their eyes again. Generally demonstrate the test.

(e) Modified Finger to Nose Test: Instruct the person to stand straight with heels together, eyes closed, arms at sides, and head tilted back. Instruct the person to touch the end of the person's nose with end of the index finger by bringing the person's arm and hand from the person's side directly to the end of the nose. Have the person repeat for the other index finger and repeat the test in the same manner, if deemed appropriate. Generally demonstrate the test.

(f) Finger count: Have the person hold a hand out and touch each of the four fingers with the thumb of that hand and count 1-2-3-4, 4-3-2-1,or any other order deemed appropriate by the officer. Generally demonstrate the test.

(g) Alphabet: Have the person say the alphabet or any portion of the alphabet the officer may choose. This test may be used as part of the Romberg test.

(h) Counting: Have the person count any length of numbers, forward or backward, as the officer may require. This test may be used as part of the Romberg test.

(i) Internal Clock: Ask the person to tell you when 30 seconds has elapsed. Time the person's estimation.

(2) Pursuant to OAR 257-025-0012 a police officer may administer any, all, or none of the field sobriety tests described in this rule as deemed appropriate in the sole discretion of the police officer.

(2) A "valid breath sample" means a sample of a person's breath provided in such a manner to be acceptable for analysis by the instrument.

(3) Severability: If any part or provision of OAR 257-030-0105 to 257-030-0170 or the application thereof is held invalid, the remaining part(s) or provision(s) shall remain in full force and effect.

(1) Submission by the manufacturer or distributor of the instrument of at least two reports of studies correlating blood analysis and breath tests performed with this instrument, conducted by two separate laboratories of governmental health or law enforcement agencies, or independent organizations, financially unrelated to the manufacturer or distributor of such instruments.

(2) Provision of a production model of the instrument by the manufacturer or distributor to the Oregon State Police for a sufficient period of time to allow Oregon State Police technician(s) to conduct sufficient investigation and laboratory tests to adequately ascertain accuracy and reproducibility of the breath testing equipment.

(3) Those instruments which have been found by the National Highway Traffic Safety Administration to conform to the model specifications for evidential breath testing devices, and which are listed on the Conforming Products List in the Federal Register.

(4) Subsequent series of above instruments, so long as the subsequent changes and series do not diminish the instrument's ability to accurately determine blood alcohol content.

(1) Test Identification: A check list containing an outline of the approved procedures shall be used and completed by all operators of this instrument. Failure to record information specified in this section does not invalidate the test result obtained if the testing procedures were otherwise followed.

(2) Pre-Test Requirement:

(a) The operator is certain that the subject has not taken anything by mouth (drinking, smoking, eating, taking medication, etc.), vomited, or regurgitated liquid from the stomach into mouth, for at least fifteen minutes before taking the test;

(b) There is no requirement that the operator be the person who makes observation of the subject. The person performing the Pre-Test Requirement (observation period) need not possess a permit for the testing of alcoholic content of blood;

(c) The Pre-Test Requirement (observation period) does not require that the subject rinse the mouth or remove dentures prior to providing a breath sample;

(d) The use of a mouthpiece by the subject during the testing sequence does not constitute a violation of the Pre-Test Requirement.

(3) Test Procedure: The operator shall administer the test (consisting of two valid breath samples, provided within a single testing sequence and culminating in a printed report with a completed test result) as follows:

(a) Ensure that the instrument display indicates "Ready to Start";

(b) Push "Start Test" button to initiate the test sequence;

(c) Once the operator initiates the testing sequence by pressing the "Start Test" button, the testing sequence shall be conducted without interruption until:

(A) The instrument completes the test sequence and the operator obtains a completed test report; or

(B) The operator depresses the "Start Test" button or the "R" key on the keyboard to indicate that the subject refused the test; or

(C) The operator or the instrument aborts the testing sequence.

(d) Using the instrument's bar code scanner and/or keyboard, the operator shall enter sufficient information to:

(A) identify the operator conducting the test; and

(B) establish that the operator possesses a valid operator permit and PIN combination. The operator should also enter sufficient information to link the test report to the test subject. The instrument will start the testing sequence when the operator's permit has been validated and the data entry process is complete;

(e) After instructing the subject on how to give a proper breath sample, have the subject provide a breath sample through the mouthpiece when "Please blow into mouthpiece to activate tone" appears on the display;

(f) Continued Observation Period: The operator shall continue to observe the subject and remain certain that the subject does not take anything by mouth (drink, smoke, eat, take medication(s), etc.), vomit, or regurgitate liquid from the stomach into mouth until the second breath sample request period is completed. The use of a mouthpiece by the subject during the testing sequence does not constitute a violation of the observation period.

(g) When "Please blow into mouthpiece to activate tone" again appears on the display, have the subject provide a second breath sample;

(h) Once the instrument accepts the second breath sample, it will automatically perform an analysis of a gaseous sample containing a known alcohol vapor concentration ("control sample") to test the accuracy and proper working order of the instrument. The operator does not need to take any action with the instrument at this time other than to monitor the progression of the instrument through the remainder of the test sequence. If all parameters are met, the instrument will proceed to the next step;

(i) When the instrument has successfully completed the test sequence, the operator will be afforded an opportunity to enter into and review comments added to the test report. The test report will then be printed with the test result.

(k) If at any time the operator has questions concerning the breath testing procedures or sequence, the operator should consult the Intoxilyzer 8000 Operator's Guide located near the instrument.

(4) Testing Sequence: The instrument will conduct the test as follows:

(a) Test Authorization: The operator shall enter into the instrument a permit and Personal Identification Number (PIN) information through the bar code scanner and/or keyboard for the purpose of: (1) identifying the operator conducting the test, and (2) establishing that the operator possesses a valid operator permit and PIN combination. Only operators who possess both a valid permit and PIN will be authorized to conduct a test sequence. If all parameters are met, the instrument will proceed to the next step;

(b) Data Entry: The operator should enter information into the instrument through the bar code scanner and/or keyboard for the purposes of linking a breath test document to the test subject. The instrument will proceed to the next step when the data entry process is complete;

(c) Air Blank: The instrument will draw in outside air to purge the unit of any alcohol or other material which may be present in the sample cell. It is also looking at the operational environment and analyzing for any possible contaminant which may be present in the room air. If all parameters are met, the instrument will proceed to the next step;

(d) Diagnostics: The instrument will perform a complete diagnostic check on its components and operational standards. If all the operational components and standards are within proper parameters, the instrument will proceed to the next step;

(e) Air Blank: The instrument will draw in outside air to purge the unit of any alcohol or other material which may be present in the sample cell. It is also looking at the operational environment and analyzing for any possible contaminant which may be present in the room air. If all parameters are met, the instrument will proceed to the next step;

(f) Breath Sample: At this time the instrument will display "Please blow into mouthpiece to activate tone." The subject is instructed on how to give a proper breath sample. The subject has approximately three minutes to comply with this request. The breath sample collection phase has been completed and will proceed to the next step when:

(A) The instrument accepts the breath sample; or

(B) The operator depresses the "Start Test" button or the "R" key on the keyboard to indicate that the subject has refused the test; or

(C) The three minute request period lapses; or

(D) The operator or the instrument aborts the testing sequence.

(g) Air Blank: This air blank is to purge the instrument of the collected sample and once again check the operational environment for any possible contaminants. If all parameters are met, the instrument will proceed to the next step;

(h) Air Blank: In preparation for the next breath sample, the instrument will delay for approximately ninety (90) seconds and then will draw in outside air to purge the unit of any alcohol or other material which may be present in the sample cell. It is also looking at the operational environment and analyzing for any possible contaminant which may be present in the room air. If all parameters are met, the instrument will proceed to the next step;

(i) Breath Sample: At this time, the instrument will again display "Please blow into mouthpiece to activate tone." The subject has approximately three minutes to comply with this request. The breath sample collection phase is complete and the instrument will proceed to the next step when:

(A) The instrument accepts the breath sample; or

(B) The operator depresses the "Start Test" button or the "R" key on the keyboard to indicate that the subject refused the test; or

(C) The three minute request period lapses; or

(D) The operator or the instrument aborts the testing sequence.

(j) Air Blank: The instrument will draw in outside air to purge the unit of any alcohol or other material which may be present in the sample cell. It is also looking at the operational environment and analyzing for any possible contaminant which may be present in the room air. If all parameters are met, the instrument will proceed to the next step;

(k) Control Sample: The instrument will perform an analysis of a gaseous sample containing a known alcohol vapor concentration, the result of which must be within a range of 0.010 high to 0.020 low of the expected value, to test the accuracy and proper working order of the instrument. If all parameters are met, the instrument will proceed to the next step;

(l) Air Blank: This air blank is to purge the instrument of the collected sample and once again check the operational environment for any possible contaminants. If all parameters are met, the instrument will proceed to the next step;

(m) Comments: The instrument will display three (3) prompts for the operator to enter any observations made during the test sequence. This information will be printed on the test report by the instrument. Entry of comment information is not required and does not preclude the operator from placing handwritten comments on the test report. The instrument will proceed to the next step when the comment entry process is complete.

(n) Test Report: The final phase of the testing sequence is the printing of the test report. If all parameters and every operational aspect of the instrument were proper, a completed test report is produced by the instrument. The test report will be titled "Breath Test Report" with the result of the chemical test printed in the "Test Result" box. If at any time there was a malfunction, event, or condition that would affect the validity of the test, or any section of the instrument was not in correct working order, the instrument would have aborted the test sequence and not produced a completed test report.

(5) Completed Test Report: A "Completed" test report is one which indicates a numeric test result, a refusal, or the presence of an interfering substance:

(a) A test report obtained using the "Reprint" option contains the identical information as would be printed on the original report and may be used in addition to or in place of the original test report. A "Reprint" may be performed either locally at the instrument location or remotely by the Oregon State Police;

(b) If during either of the breath sample collection periods, the subject refuses, through some willful act, to follow the instructions to provide an adequate breath sample, the operator may depress the "Start Test" button or the "R" key on the instrument keyboard to terminate the breath testing sequence. The instrument will indicate "Refused" on the display and a test result of "Refused" will be produced. A printed test report, as described in this subsection, is not required to document the operator's decision to terminate the breath test request phase as refused.

(c) If the instrument detects the presence of acetone or other substances which could interfere with the instrument's ability to accurately measure the amount of ethyl alcohol in the breath, it will display the message "Interfering Substance Detected" and abort the testing sequence. The printout on the test report will indicate "Interfering Substance" and "*Invalid Test -- Interfering Substance Detected". This is a completed test and the operator should not restart the testing sequence.

(6) Incomplete Test Report: The following conditions will result in an incomplete test report:

(a) If the subject did not provide a breath sample or blow with sufficient force to activate the minimum breath flow requirements of the instrument at any time within either of the three minute breath sample collection periods, the instrument will indicate "No Sample Given" and print "*Invalid Test -- No Sample Given". If the test report indicates "No Sample Given", the operator should restart the testing sequence and proceed until a completed test report is obtained;

(b) If the operator receives an exception message and printout from the instrument, such as "*Invalid Sample -- Residual Alcohol Present", or "*Invalid Test --" (not to include "*Invalid Test -- Interfering Substance Detected"), etc., the operator should consult the "Suggested Corrective Action" outlined near the bottom of the test report, take appropriate action, and restart the testing sequence. Nothing in this subsection precludes an operator from terminating the breath testing sequence as "Refused" if the subject refuses, through a willful act, to follow the instructions of the operator. A printed test report, as described in section (5)(b), is not required to document the operator's decision to terminate the breath test sequence as "Refused".

(7) Failure to record information specified in section (1) and subsection (4)(b) of this rule does not invalidate the test result obtained if the testing procedures were otherwise followed.

(1) "Agency" means Driver and Motor Vehicle Services Division (DMV) of the Oregon Department of Transportation.

(2) "Hearings Program" means and is a section of the Office of Administrative Hearings that performs services under contract for DMV and includes the Hearings Case Management Unit.

(3) "Error of the Department," as used in ORS 813.440(1)(c), means:

(a) An act or omission of the agency, which by its occurrence, prevented the petitioning party from being present at a recorded or reported hearing that determines the validity of a suspension of driving privileges; or

(b) An act or omission of the agency in issuing a subpoena to a witness, including a police officer, to a recorded or reported hearing that determines the validity of a suspension of driving privileges and where the witness' presence at the reported or recorded hearing is required in order for the agency to establish the required elements under ORS 813.410(5); or

(c) An act or omission of the agency in issuing a subpoena to a necessary witness where:

(A) The agency receives the petitioning party's request to subpoena a necessary witness more than 72 hours prior to the time and date that a recorded or reported hearing that determines the validity of a suspension of driving privileges is scheduled; and

(B) The act or omission, by its occurrence, prevented the necessary witness from being present at the hearing; or

(d) An act or omission of the agency that prevents a recorded or reported hearing that determines the validity of a suspension of driving privileges from being conducted.

(4) "Other just cause" as used in ORS 813.440(1)(f) means:

(a) Circumstances beyond the reasonable control of the petitioning party and beyond the ability of a reasonable person to foresee, which:

(A) Prevented the petitioning party from filing of a timely request for a hearing as set forth in ORS 813.410(3); or

(B) Prevented the petitioning party from requesting the agency to subpoena a necessary witness more than 72 hours prior to the time and date that a recorded or reported hearing that determines the validity of a suspension of driving privileges is scheduled; or

(C) Prevented the petitioning party from being present at a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(b) Circumstances where a petitioning party moves for a continuance of a hearing or a request that a necessary witness be subpoenaed to a hearing and, due to circumstances beyond the control of the petitioning party:

(A) The necessary witness does not appear at the hearing because the necessary witness was unknown to the petitioning party prior to a recorded or reported hearing that determines the validity of a suspension of driving privileges; or

(B) The necessary witness does not appear at the hearing and could not be served with a subpoena at least 72 hours prior to a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(c) Circumstances beyond the control of the agency that prevented a hearing officer from conducting a recorded or reported hearing that determines the validity of a suspension of driving privileges.

(5) "Necessary witness" means a witness whose testimony is essential to support a material fact or position of the petitioning party. The fact or position to be supported by the necessary witness must be within the scope of an implied consent hearing as set forth in ORS 813.410(5).

(6) "Offense" means the alleged Driving While Under the Influence of Intoxicants incident.

(7) "Petitioner" means the person whose driving privileges may be suspended.

(8) "Petitioning Party" means the petitioner or the petitioner's attorney.

(9) "Received by DMV" means:

(a) Personally delivered to DMV Headquarters. 1905 Lana Ave. NE, Salem, OR;

(b) Delivered by mail to DMV Headquarters, 1905 Lana Ave. NE, Salem, OR 97314; or

(c) Received by facsimile machine at telephone number (503) 945-5521.

(a) Petitioner's full name;

(b) Petitioner's complete mailing address;

(c) Date of arrest;

(d) Petitioner's Oregon driver license number;

(e) Petitioner's date of birth;

(f) Telephone number where petitioner can be called between 8 a.m. and 5 p.m.;

(g) Brief statement of the issues the petitioner proposes to raise at the hearing;

(h) Dates and times the petitioner or attorney cannot appear at a hearing;

(i) A request to have the hearing held by telephone, if desired.

(j) A request for an interpreter for a non-English speaking petitioner must be made at the time of the hearing request.

(2) To be considered timely, a hearing request submitted pursuant to ORS 813.132 or 813.410(3), for failure of a breath test or refusal of a breath, blood or urine test, must be received by DMV by the tenth day following the arrest of the petitioner. Oregon Rules of Civil Procedure 10A (ORCP 10A) shall be used to determine the computation of time.

(3) To be considered timely, a hearing request submitted pursuant to ORS 813.410(3), for failure of a blood test, must be received by DMV by the tenth day from the date the department sends notice of suspension. ORCP 10A shall be used to determine the computation of time.

(4) The Office of Administrative Hearings shall issue a final order denying an untimely hearing request unless the petitioning party demonstrates that the request should be granted under ORS 813.440.

(2) If there is a mutual agreement between the petitioning party and DMV, a hearing or telephone hearing may be held at a location outside of either the county where the alleged offense occurred or 100 air miles of the place where the offense is alleged to have occurred.