Can Oregon use Highway Fund money to administer commercial-driver drug-testing recordkeeping under HB 3292?

Plain-English summary

The 1999 Oregon Legislature passed HB 3292 (Oregon Laws 1999, ch. 1099), expanding commercial-driver drug testing. Under the new law, motor carriers had to run a federal-compliant drug-testing program (49 CFR Part 382), report positive results to ODOT, and ODOT had to record those results on the driver's employment driving record after notice and hearing. The Driver and Motor Vehicle Services Division asked whether Highway Fund money could pay for the ODOT side of the program.

Attorney General Hardy Myers said no. The Oregon Constitution dedicates Highway Fund revenue to highway-related purposes, narrowly defined. The Oregon Supreme Court in Rogers v. Lane County limited that to projects "that primarily and directly facilitate motorized vehicle travel." Recording drug-test results on an employment driving record (which by statute could not be used to suspend driving privileges or affect vehicle registration without separate authority) did not primarily facilitate highway travel. It served employer-screening and federal-compliance purposes. So Highway Fund money was off-limits; the opinion noted ODOT would have to implement the program with non-dedicated funds or, if it had none, seek funding from the Emergency Board.

Currency note

This opinion was issued in 2000. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: Why isn't a commercial-driver drug-test record "highway-related"?
A: It indirectly relates to commercial vehicles, but Article IX, section 3a's "highway purposes" clause has been read narrowly. The information is used principally by motor carriers and the federal compliance system, not by ODOT to regulate driving privileges or vehicle registration. Indirect links to motor vehicles do not satisfy the constitutional dedication.

Q: What if a positive test eventually leads ODOT to suspend a CDL?
A: The opinion found nothing in the statute that authorized ODOT to use the test result for any regulatory action against the driver's privileges or the carrier's authority. Because the record could not be used to regulate driving privileges, vehicle registration, or operating authority, the AG treated maintaining it and holding the hearing as a non-highway purpose.

Q: What's the practical effect if ODOT can't use Highway Funds?
A: ODOT must implement the program if it has non-dedicated funding. If it doesn't, it must ask the Emergency Board for an appropriation. Footnote 6 of the opinion explains: an agency must do its statutory duty if existing non-dedicated funds allow; otherwise it must seek funds through the Emergency Board process. An agency is not required to perform statutory functions when both the Legislature and Emergency Board refuse funding.

Q: What is the Highway Fund?
A: Money derived from taxes and fees on motor vehicles and motor vehicle fuels that are constitutionally dedicated to highway purposes under Article IX, section 3a of the Oregon Constitution.

Q: How strict is the "primarily and directly facilitate" test from Rogers?
A: Strict. The Rogers court struck down Highway Fund spending on an airport parking lot and a covered walkway from the parking lot to the airport. Even with a clear motor-vehicle connection (passengers driving to the airport), the purpose was air travel, not highway travel. Drug-test recordkeeping for commercial drivers fits the same pattern: the connection is real but the primary purpose is not highway travel.

Background and statutory framework

Article IX, section 3a of the Oregon Constitution dedicates motor vehicle taxes and fuel taxes to "the construction, reconstruction, improvement, repair, maintenance, operation and use of public highways, roads, streets and roadside rest areas." It also allows use of those funds for "costs of administration" and, for taxes on commercial vehicles, "enforcement of commercial vehicle weight, size, load, conformation and equipment regulation."

The Oregon Supreme Court read this strictly in Rogers v. Lane County (1989) and Automobile Club of Oregon v. State of Oregon (1992). Expenditures must be limited to projects "that primarily and directly facilitate motorized vehicle travel." Underground storage tank assessments and emission fees, for example, even though they were "taxes or excises" within section 3a, could not be used for environmental remediation or public transportation.

HB 3292 created a federally compliant commercial-driver drug-testing scheme. Under ORS 825.410, carriers must establish a program meeting 49 CFR Part 382. Positive results flow to ODOT, which must give the driver notice and a hearing under ORS 825.412. The result lands on the driver's employment driving record (ORS 802.200(10)) but cannot be released without the driver's permission (ORS 802.202).

Citations and references

Constitutional provisions, statutes, and federal regulations:

• Article IX, section 3a, Oregon Constitution
• Oregon Laws 1999, chapter 1099 (HB 3292)
• ORS 825.410, ORS 825.412, ORS 802.200(10), ORS 802.202, drug-test reporting and recordkeeping
• ORS 801.208, ORS 801.210, commercial vehicle definitions
• 49 CFR Part 382, federal commercial-driver drug-testing program

Cases:

• Rogers v. Lane County, 307 Or 534, 771 P2d 254 (1989), narrow construction of highway purposes
• Automobile Club of Oregon v. State of Oregon, 314 Or 479, 840 P2d 674 (1992), invalid fund uses

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/2000/02/op8271.pdf

Original opinion text

February 23, 2000

No. 8271
This opinion is issued in response to a question from Lorna Youngs, Deputy Director,
Driver and Motor Vehicle Services Division of the Oregon Department of Transportation,
concerning the use of Highway Funds.1/
QUESTION PRESENTED
May Highway Funds be used to implement and administer those provisions
of Oregon Laws 1999, chapter 1099 (House Bill 3292) that require ODOT to
place a positive drug test result on an employment driving record and provide an
opportunity for hearing?
ANSWER GIVEN
No. Highway Funds cannot constitutionally be used for this purpose
DISCUSSION
I.

House Bill 3292

House Bill 3292 enacted several new statutes and amended several existing provisions
effective March 1, 2000,2/ related to alcohol and drug testing of persons who drive commercial
vehicles.3/ Under these new provisions, motor carriers are required to establish or participate in
an alcohol and drug testing program that meets the federal requirements of 49 CFR Part 382, and
the medical review officer of the testing program must report all positive drug test results to the
Oregon Department of Transportation (ODOT). ORS 825.410(1), (3). When ODOT receives a
positive drug test report, ODOT must notify the driver of the right to an administrative hearing to

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determine if the test result should be placed on the driver's employment driving record. ORS
825.412(1). If the driver requests an administrative hearing, the issues are:
•
•
•

whether the person named in the report is the person who took the test,
whether the motor carrier or consortium has a program that meets the requirements of
49 CFR Part 382, and
whether the medical review officer making the report correctly followed the procedures
for testing established by the motor carrier or consortium.

ORS 825.412(3). If the driver fails to request a hearing or if, after a hearing, ODOT determines
that the above requirements are met, ODOT must place the positive drug test result on the
driver's employment driving record.4/ ORS 802.200(10)(b), 825.412(4), (6).
We are asked whether Highway Funds may be used to pay ODOT's cost in carrying out
these statutory mandates.
II.

Use of Highway Funds

Article IX, section 3a, of the Oregon Constitution provides that revenues from motor
vehicle taxes and motor vehicle fuel "shall be used exclusively for the construction,
reconstruction, improvement, repair, maintenance, operation and use of public highways, roads,
streets and roadside rest areas in this state."5/ These revenues may also be used for costs of
administration and, to the extent derived from taxes levied on commercial vehicles, "for
enforcement of commercial vehicle weight, size, load, conformation and equipment regulation."
Or Const Art IX, § 3a(2)(a), (d).
The language of Article IX, section 3a that allows use of Highway Funds for the
"improvement, * * * operation and use" of highways has been narrowly construed by the Oregon
Supreme Court. In Rogers v. Lane County, 307 Or 534, 771 P2d 254 (1989), the court found
that construction of an airport parking lot and covered walkway from the parking lot to the
airport itself was not a highway-related project and therefore not a constitutionally permissible use
of Highway Funds. The Court concluded that the expenditure of Highway Funds must be limited
exclusively to expenditures on highways, roads, streets and roadside rest areas themselves or for
other projects or purposes "that primarily and directly facilitate motorized vehicle travel." Id. at

545. See also Automobile Club of Oregon v. State of Oregon, 314 Or 479, 490-491, 840 P2d
     674 (1992) (underground storage tank assessments and emission fees are taxes or excises for
     purposes of Article IX, section 3a; because their use to aid gasoline stations in meeting federal
     environmental regulations and for public transportation projects is not constitutionally permissible,
     the fees are invalid).
     Article IX, section 3a(2)(a) also permits the use of Highway Funds for "the costs of
     administration." This office has previously concluded that Highway Funds may be used for the
     administrative costs of a statutorily mandated program only if the program is a permissible use of

2

Highway Funds. See 48 Op Atty Gen 345 (1997) (use of Highway Funds for start-up and
administrative costs of special license plate programs that generate revenue for non-highway
purposes would violate constitution); 39 Op Atty Gen 400 (1978) (use of Highway Funds for
administrative expenses of the Advisory Committee on Bicycles allowable in proportion to
services directly connected to its advice on bicycle paths, lanes and trails); see also Letter of
Advice dated October 19, 1993, to Gary Weeks, Director of the Department of Administrative
Services (OP-6474) (use of Highway Funds for costs of providing motor vehicle records to
criminal justice agencies via the Law Enforcement Data System (LEDS) is not constitutionally
permissible, but cost of using LEDS for vehicle registration purposes is allowable administrative
expense).
Under ORS 825.412, when ODOT receives a report of a positive drug test, ODOT must
notify the tested driver and provide an opportunity for an administrative hearing. If the statutory
criteria are met, ODOT must place the test result on the driver's employment driving record.
ORS 825.412(4), 802.200(10). We find nothing in ORS 825.412, 802.200 or any other law that
authorizes ODOT to use this information for any regulatory purpose related to the driving
privileges of the tested driver, to the vehicle registration or operating authority of a motor carrier
or for any other program that "primarily and directly facilitate[s] motorized vehicle travel." We
conclude therefore that ODOT's maintaining the test-result information and providing an
administrative hearing to the tested driver constitutes a non-highway purpose. Because Highway
Funds cannot constitutionally be used for non-highway purposes, Highway Funds cannot be used
to implement and administer those provisions of HB 3292 that require ODOT to place a positive
drug test result on an employment driving record and provide an opportunity for hearing.6/

HARDY MYERS
Attorney General
SC:PAG:ALV/GEN42491.DOC

1/ "Highway Funds" refer to moneys derived from taxes and fees on motor vehicles and motor vehicle fuels that are dedicated for highway purposes as specified in Article IX, section 3a, of the Oregon Constitution.

2/ In discussing this legislation, we cite to the new or amended provisions of the Oregon Revised Statutes rather than the provisions of House Bill 3292.

3/ House Bill 3292 applies to motor carriers who operate commercial vehicles or commercial motor vehicles, as those terms are defined in ORS 801.208 and 801.210. For ease of reference, we use "commercial vehicle" when referring to these terms.

4/ ODOT may release information about positive drug test results only to persons who provide ODOT with written permission to release the information from the driver who is the subject of the test. ORS 802.202. ODOT is exempt from civil liability for placement of a positive drug test result on an employment driving record and for the release of this information if it occurs in the normal course of business. ORS 825.412(7).

5/ Article IX, section 3a, of the Oregon Constitution provides:
(1) Except as provided in subsection (2) of this section, revenue from the following shall be used exclusively for the construction, reconstruction, improvement, repair, maintenance, operation and use of public highways, roads, streets and roadside rest areas in this state:
(a) Any tax levied on, with respect to, or measured by the storage, withdrawal, use, sale, distribution, importation or receipt of motor vehicle fuel or any other product used for the propulsion of motor vehicles; and
(b) Any tax or excise levied on the ownership, operation or use of motor vehicles.
(2) Revenues described in subsection (1) of this section:
(a) May also be used for the cost of administration and any refunds or credits authorized by law.
(b) May also be used for the retirement of bonds for which such revenues have been pledged.
(c) If from levies under paragraph (b) of subsection (1) of this section on campers, mobile homes, motor homes, travel trailers, snowmobiles, or like vehicles, may also be used for the acquisition, development, maintenance or care of parks or recreation areas.
(d) If from levies under paragraph (b) of subsection (1) of this section on vehicles used or held out for use for commercial purposes, may also be used for enforcement of commercial vehicle weight, size, load, conformation and equipment regulation.

Article IX, section 3a was adopted by vote of the people of Oregon on May 20, 1980. It replaced former section 3, which similarly dedicated revenues from fuel taxes and vehicle operation fees as Highway Funds, except that it also authorized use of these revenues for policing highways and development and maintenance of parks and historic places. Former Or Const Art IX, § 3 (repealed May 20, 1980).

6/ Although ODOT cannot use Highway Funds for this purpose, ODOT must implement this portion of HB 3292 if it has funds that are not constitutionally, statutorily or otherwise dedicated to some other purpose. If ODOT does not have such non-dedicated funds, ODOT must seek funding from the Emergency Board to implement this portion of HB 3292. See 38 Op Atty Gen 1908 (1978) (advising DMV to implement program for which Emergency Board refused to appropriate funds if its existing appropriation and budget do not prohibit necessary expenditures); 34 Op Atty Gen 1114 (1970) (agency not required to perform statutory functions after legislature and Emergency Board refuse funding).