Suspension of the Driving Privileges of Hause v. Motor Vehicles Division , 127 Or. App. 421 ( 1994 )

RIGGS, J.

Petitioner seeks review of a judgment affirming a final order of the Motor Vehicles Division (MVD) suspending his driving privileges for driving while under the influence of intoxicants. We affirm.

A police sergeant saw petitioner, astride a motorcycle, weaving erratically across two lanes of traffic. The sergeant stopped petitioner and smelled alcohol on his breath. The sergeant called a deputy officer to the scene and asked the deputy to perform a sobriety check. The sergeant then left. Petitioner told the deputy that he had drunk “four or five, six or seven” vodka and grapefruit drinks that day. When the deputy asked petitioner if he felt the vodka’s effects, petitioner said, “You bet I do.” The deputy administered several field sobriety tests. On those tests requiring balance, petitioner swayed; on those tests requiring proficiency in counting and the alphabet, he became confused. Concluding that petitioner had driven under the influence of intoxicants, the deputy arrested him. At the police station, petitioner took a chemical breath test, which showed a blood alcohol content of .21 percent.

The deputy reported the results of the breath test to MVD, which suspended petitioner’s driving privileges. Petitioner requested an Implied Consent hearing, at which he and the deputy were the only witnesses. MVD offered the hearsay testimony of the deputy to establish that the sergeant saw petitioner weaving. Petitioner admitted to weaving, hut objected to the admission of the deputy’s hearsay testimony. After the hearing, MVD issued an order suspending petitioner’s driving privileges for one year. He sought judicial review of the order, and the circuit court affirmed.

On appeal, petitioner argues that the stop was invalid because the deputy had no reasonable suspicion to believe that he had been weaving in traffic; he stresses the fact that the deputy did not see him weave. However, MVD must prove only that the sergeant who made the stop had a reasonable suspicion that the person stopped has committed a crime. See ORS 131.615(1). A police officer who sees erratic driving can form a reasonable suspicion that someone is committing a crime such as driving under the influence. State v. Wright, 94 Or App 468, 471, 765 P2d 1251 (1988), rev den 307 Or 514 (1989). Here, the sergeant’s observations justified the stop.

Petitioner argues in the alternative that the deputy should not have been permitted to testify that the sergeant observed him weaving and that this hearsay testimony is insufficient to support the agency’s finding that the sergeant had a reasonable suspicion that petitioner had committed a crime. A license suspension hearing is governed by the Administrative Procedures Act (APA) and MVD rules. ORS 813.410(3). Under the APA, a hearings officer can admit “evidence of a type commonly relied upon by reasonably prudent persons in conduct of their serious affairs.” ORS 183.450(1). Hearsay testimony may meet this test and may constitute substantial evidence to support an agency’s finding. Reguero v. Teacher Standards and Practices, 312 Or 402, 822 P2d 1171 (1991).

Reguero sets forth a framework for determining whether hearsay is substantial evidence that supports a finding. That determination is case specific and must take into account countervailing as well as supporting evidence. 312 Or at 418. In making that determination, we examine a number of factors, including

“the alternative to relying on the hearsay evidence, the importance of the facts sought to be proved by the hearsay statements to the outcome of the proceeding and considerations of economy; the state of the supporting or opposing evidence, if any; the degree of lack of efficacy of cross-examination with respect to the particular hearsay statements; and the consequences of the decision either way. ”312 Or at 418.

In Reguero, the agency’s finding was based entirely on the hearsay testimony. Here, other evidence in the record supports the agency’s determination. Petitioner himself testified that he may well have been weaving. Also, unlike Reguero, there is only slight opposing evidence in the record, and no evidence that casts doubt on the hearsay testimony. Defendant’s testimony was that he was weaving because the road was bumpy. Additionally, the consequences of the agency’s decision are arguably less severe than the con sequences in Reguero. See Pierce v. MVD, 125 Or App 79, 864 P2d 1355 (1993).

The record does not indicate whether the sergeant was available to testify; thus, we do not know if there was an alternative to relying on the hearsay testimony. In addition, the fact of whether the sergeant saw defendant weave was important to the outcome of the hearing.¹ Nevertheless, after considering the evidence, the alternatives and the consequences, we conclude that the agency’s finding was supported by substantial evidence.

Petitioner’s other assignments of error do not require discussion.

Affirmed.

1 If the traffic stop was not valid, then the arrest and the ensuing suspension may not be valid. Pooler v. MVD, 306 Or 47, 755 P2d 701 (1988).