Driving Under the Influence of Intoxicants

ORS 813.010
Driving under the influence of intoxicants

  • penalty


(1)

A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

(a)

Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100 (Implied consent to breath or blood test), 813.140 (Chemical test with consent) or 813.150 (Chemical test at request of arrested person);

(b)

Is under the influence of intoxicating liquor, cannabis, a controlled substance or an inhalant; or

(c)

Is under the influence of any combination of intoxicating liquor, cannabis, a controlled substance and an inhalant.

(2)

A person may not be convicted of driving while under the influence of intoxicants on the basis of being under the influence of a controlled substance or an inhalant unless the fact that the person was under the influence of a controlled substance or an inhalant is pleaded in the accusatory instrument and is either proved at trial or is admitted by the person through a guilty plea.

(3)

A person convicted of the offense described in this section is subject to ORS 813.020 (Fee to be paid on conviction) in addition to this section.

(4)

Except as provided in subsection (5) of this section, the offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any premises open to the public.

(5)

(a) Driving while under the influence of intoxicants is a Class C felony if the current offense was committed in a motor vehicle and the person has, at least three times in the 10 years prior to the date of the current offense, been convicted of, or been found to be within the jurisdiction of the juvenile court for an act that if committed by an adult would be, any of the following offenses in any combination:

(A)

Driving while under the influence of intoxicants in violation of:

(i)

This section; or

(ii)

The statutory counterpart to this section in another jurisdiction.

(B)

A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination thereof.

(C)

A driving offense in another jurisdiction that involved operating a vehicle, an aircraft or a boat while having a blood alcohol content above that jurisdiction’s permissible blood alcohol content.

(b)

For the purposes of paragraph (a) of this subsection, a conviction or adjudication for a driving offense in another jurisdiction based solely on a person under 21 years of age having a blood alcohol content that is lower than the permissible blood alcohol content in that jurisdiction for a person 21 years of age or older does not constitute a prior conviction or adjudication.

(6)

In addition to any other sentence that may be imposed, the court shall impose one or more of the following fines on a person convicted of driving while under the influence of intoxicants as follows:

(a)

For a person’s first conviction, a minimum of $1,000.

(b)

For a person’s second conviction, a minimum of $1,500.

(c)

For a person’s third or subsequent conviction, a minimum of $2,000 if the person is not sentenced to a term of imprisonment.

(d)

For a person who drives a vehicle while the person has 0.15 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100 (Implied consent to breath or blood test), 813.140 (Chemical test with consent) or 813.150 (Chemical test at request of arrested person), a minimum of $2,000.

(7)

Notwithstanding ORS 161.635 (Fines for misdemeanors), $10,000 is the maximum fine that a court may impose on a person convicted of driving while under the influence of intoxicants if:

(a)

The current offense was committed in a motor vehicle; and

(b)

There was a passenger in the motor vehicle who was under 18 years of age and was at least three years younger than the person driving the motor vehicle. [1983 c.338 §587; 1985 c.16 §293; 1987 c.138 §5; 1991 c.835 §7; 1999 c.619 §3; 1999 c.1049 §1; 2003 c.14 §495; 2003 c.445 §1; 2007 c.879 §3; 2009 c.525 §1; 2009 c.613 §1; 2017 c.21 §80]

See also annotations under ORS 483.992 (2) in permanent edition.

Notes of Decisions

Under Former Similar Statute

Evidence of blood-alcohol content produced by a chemical test of defendant shortly after drunk driving arrest raises rebuttable presumption that defendant's blood-alcohol content was no less than shown thereby when he was driving and arrested. State v. Kohlasch, 11 Or App 459, 502 P2d 1158 (1972)

Arresting officer's testimony concerning defendant's performance of manual dexterity tests relevant and admissible in prosecution for violation of this section. State v. Swarengin, 12 Or App 290, 506 P2d 729 (1973)

The question whether ampule containing chemical re-agent used in test of defendant's blood-alcohol level was actually certified held properly submitted to jury. State v. Ramsey, 17 Or App 665, 523 P2d 601 (1974)

In trial of defendant for crime of driving under influence of intoxicants, conviction for lesser-included infraction of driving under influence of intoxicants was permissible, where trial was to the court and not before jury. State v. Mink, 30 Or App 339, 567 P2d 1033 (1977), Sup Ct review denied

Former statute was sufficient statutory counterpart of current driving-under-influence-of-intoxicants statute to convert second offense to Class A misdemeanor. State v. Coleman, 32 Or App 627, 574 P2d 1147 (1978), Sup Ct review denied

Breathalyzer test results were suppressed where officer failed to inform defendant fully of rights, including entitlement to independent testing, after he had initially refused test. State v. Creson, 33 Or App 369, 576 P2d 814 (1978)

Where officer stopped defendant suspected of intoxication and tape recorded all conversation with defendant from time he approached car until shortly after arrest, and tape showed officer informed defendant their conversation was being recorded two minutes after they began talking, error in admitting portion of tape recording which occurred before officer informed defendant of its existence was nonprejudicial. State v. Cooney, 36 Or App 217, 584 P2d 329 (1978)

Breathalyzer results were properly suppressed where defendant did not obtain independent blood test because he was denied reasonable opportunity by police. State v. Hilditch, 36 Or App 435, 584 P2d 376 (1978)

Where jury heard prejudicial evidence of prior conviction, order of mistrial should have been entered, however judgment of acquittal barred any further proceeding. State v. Offet, 36 Or App 865, 585 P2d 765 (1978)

In prosecution under this section, neither probable cause to arrest nor actual consent to breathalyzer use are questions for jury. State v. Hawk, 38 Or App 117, 589 P2d 1136 (1979), Sup Ct review denied

In prosecution under this section where charging portion of complaint ended with phrase "in violation of state statute in such case made and provided" and defendant appeared with counsel at arraignment and demurred to complaint on ground it was not definite and certain because prior conviction on which state relied to raise offense to misdemeanor was not in charging portion of complaint as required by [former] ORS 484.380, complaint gave defendant reasonable notice of prior conviction on which state intended to rely and withstood demurrer. State v. Land, 38 Or App 127, 589 P2d 1141 (1979)

Repeal of statute defining cocaine as a "narcotic drug" and substitution of Uniform Controlled Substances Act was not intended to eliminate from prosecutions under this section evidence that defendant had been driving under the influence of cocaine or to require state to establish that cocaine was "narcotic" or "dangerous drug." State v. Gray, 40 Or App 799, 596 P2d 611 (1979)

Attire of arresting officer is not element of crime of driving under influence of intoxicants and fact that arresting officer was not in uniform was not ground for reversal of conviction. State v. Gerttula, 41 Or App 675, 598 P2d 1257 (1979)

In a prosecution for violation of this section, defendant could offer nonexpert testimony relating to symptoms of intoxication to impeach a breathalyzer test. State v. Clark, 286 Or 33, 593 P2d 123 (1979)

On remand, charge of DUII properly dismissed due to inadvertent destruction of videotape of defendant's performance of physical dexterity tests where evidence would have been material and favorable to defendant in rebutting breathalyzer results. State v. Smith, 42 Or App 543, 600 P2d 949 (1979)

Since this section allows conviction for DUII only on basis of blood tests administered pursuant to [former] ORS 487.815, results of blood tests performed by person who did not have valid permit from Health Division were inadmissible. State v. Hilton, 49 Or App 927, 620 P2d 970 (1980), Sup Ct review denied

Only fact of defendant's refusal to take intoxilyzer test is admissible evidence, and any statements made by accused in conjunction with refusal are testimonial or communicative and admissible only under general Fifth Amendment principles. State v. Anderson, 53 Or App 246, 631 P2d 822 (1981)

Where, at trial, arresting officer testified concerning defendant's refusal to take intoxilyzer test and, during closing argument, prosecutor commented on refusal, prosecutor's comment, if evidence of refusal was properly admitted, was proper. City of Portland v. Stanley, 53 Or App 254, 631 P2d 826 (1981), Sup Ct review denied

Since Intoxilyzer determines a person's blood-alcohol content by measuring alcohol content of the person's breath, instrument accomplishes "chemical analysis of the breath" within the meaning of this section. State v. Dorsey, 58 Or App 521, 648 P2d 1304 (1982), Sup Ct review denied

This section, making it unlawful for person with .10 percent blood-alcohol reading to drive, is not unconstitutionally vague. State v. Gainer, 70 Or App 199, 689 P2d 323 (1984)

In investigating DUII offense, need to secure evidence might justify warrantless entry of home if state proves arresting officers could not obtain warrant before alcohol in suspect's body dissipated. State v. Roberts, 75 Or App 292, 706 P2d 564 (1985)

Fact that legislature has adopted certain percentage of alcohol in the blood as legally constituting being under influence of intoxicants is not relevant circumstantial evidence in civil case to show driver was visibly intoxicated. Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985)

Driving under influence of intoxicants is strict liability crime and state need not prove culpable mental state and mental disease or defect cannot be defense. State v. Maguire, 78 Or App 459, 717 P2d 226 (1986), aff'd 303 Or 368, 736 P2d 193 (1987); State v. Bunch, 87 Or App 386, 742 P2d 74 (1987)

This section did not require that defendant, hearing-impaired person, make voluntary and informed choice on decision to take or refuse test and, accordingly, it was not necessary that defendant understand statutory information before taking test. State v. Weishar, 78 Or App 468, 717 P2d 231 (1986), Sup Ct review denied

DUII statute applies to bicyclists. State v. Woodruff, 81 Or App 484, 726 P2d 396 (1986), Sup Ct review denied

Person who is steering and braking vehicle being towed is "driving" for purposes of former driving under influence of intoxicants statute. State v. Dean, 84 Or App 108, 733 P2d 105 (1987)

In General

Legislature intended that separate sentences were permissible for driving under the influence of intoxicants and driving while suspended when they arise out of same driving episode. State v. Hale, 80 Or App 361, 722 P2d 1269 (1986)

Because all chemical tests offered to prove DUII violation must comply with chemical analysis qualification and methodology requirements of ORS 813.160 to be admissible, trial court erred when it admitted hospital blood test drawn for diagnostic purposes. State v. Broyles, 94 Or App 334, 765 P2d 239 (1988)

Because DUII is strict liability offense, defendant cannot assert defense of involuntary intoxication. State v. Miller, 95 Or App 439, 769 P2d 788 (1989), aff'd 309 Or 362, 788 P2d 974 (1990)

Where Oregon Admission Act granted Oregon and Washington concurrent jurisdiction for offenses occurring on bridges that span Columbia River, state did not have to prove venue on conviction of defendant for driving under influence of intoxicants when stopped on bridge spanning Columbia River. State v. Nearing, 99 Or App 724, 784 P2d 121 (1989), Sup Ct review denied

This section does not require state to present evidence that controlled substance was intoxicant and it is question for trier of fact whether controlled substance by itself or in combination with intoxicating liquor did in fact impair person such that person was "under the influence." State v. Huck, 100 Or App 193, 785 P2d 785 (1990)

In order to support giving of Miles instruction, state must present evidence that controlled substance made defendant more susceptible to effects of alcohol than he otherwise would have been. State v. Huck, 100 Or App 193, 785 P2d 785 (1990)

It is not necessary under this section or implied consent law that person know they are under arrest for DUII only that person is, in fact, under arrest. Oviedo v. MVD, 102 Or App 110, 792 P2d 1244 (1990)

Being under influence of intoxicant is strict liability element of driving under the influence of intoxicants and no proof is required of culpable mental state. State v. Miller, 309 Or 362, 788 P2d 974 (1990)

Defense of guilty except for insanity is available to persons charged under this section. State v. Olmstead, 310 Or 455, 800 P2d 277 (1990)

Three-year suspension under this section was appropriate where defendant committed first offense, became subject to diversion program, and, after diversion was terminated for second offense, defendant was convicted of both offenses simultaneously. State v. Kamali, 106 Or App 230, 806 P2d 728 (1991)

"Driving" covers any operation, towing, pushing, movement or other propulsion of a motor vehicle, including conduct of passenger who grabs steering wheel. State v. Cruz, 121 Or App 241, 855 P2d 191 (1993)

Officer had option to discard questionable breath analyzer printout card and request that driver retake test. State v. Galli, 125 Or App 218, 865 P2d 361 (1993)

Neither state law nor federal due process requires jury to reach unanimous finding regarding which of three sets of circumstances described by statute applies in order to convict for DUII. State v. King 316 Or 437, 852 P2d 190 (1993)

Where, inter alia, police officer informed defendant of Miranda rights, informed defendant that particular test was last one and referred to subsequent requested information as question, clear break existed between sobriety test and questioning. State v. Dill, 127 Or App 6, 870 P2d 851 (1994)

Results of properly executed horizontal gaze nystagmus test are admissible to establish that defendant was under influence of intoxicating liquor, but not to show that blood alcohol content exceeded legal limit. State v. O'Key, 321 Or 285, 899 P2d 663 (1995)

Only chemical test result may be used to establish blood alcohol content as part of state's case in chief. State v. Ross, 147 Or App 634, 938 P2d 797 (1997)

Charge of being under combined influence of alcohol and controlled substance is subject to requirement that influence of controlled substance be pleaded in accusatory instrument. State v. Stiles, 165 Or App 584, 998 P2d 703 (2000)

Where state proceeds solely under theory of intoxication due to alcohol, court may not instruct jury that taking controlled substances is physical condition that can affect susceptibility to alcohol. State v. McFeron, 166 Or App 110, 999 P2d 470 (2000)

Procedures and results of Drug Recognition Expert protocol are admissible to show defendant was under influence of controlled substance, provided qualified officer properly administered test and accurately recorded results. State v. Sampson, 167 Or App 489, 6 P3d 543 (2000), Sup Ct review denied

Police have probable cause to conduct blood alcohol content analysis on driver suspected of being intoxicated notwithstanding that police believe source of driver intoxication is inhalant or controlled substance. State v. Burshia, 201 Or App 678, 120 P3d 487 (2005), Sup Ct review denied

"Statutory counterpart" means statutes of other states that deal with narrow subject of driving while under influence of intoxicants rather than broader subject of using intoxicants and driving. State v. Ortiz, 202 Or App 695, 124 P3d 611 (2005)

Where defendant is charged with felony, state must prove existence of predicate conviction beyond reasonable doubt, but validity of proven prior conviction is presumed. State v. Probst, 339 Or 612, 124 P3d 1237 (2005)

Where person is convicted of third or subsequent offense under this section, sentencing person to term of imprisonment does not prevent court from imposing fine. State v. Eades, 208 Or App 173, 144 P3d 1003 (2006)

Statute of another jurisdiction is "counterpart" to this section if statute and this section are remarkably similar or have same use, role or characteristics. State v. Mersman, 216 Or App 194, 172 P3d 654 (2007), Sup Ct review denied

At trial, state may offer relevant evidence to explain how driver's blood alcohol content at time of test shows that driver had 0.08 percent or more by weight of alcohol in bloodstream at time that driver was driving. State v. Eumana-Moranchel, 352 Or 1, 277 P3d 549 (2012)

Minimal voluntary act requirement of ORS 161.095 (1) applies to driving element of DUII. State v. Newman, 353 Or 632, 302 P3d 435 (2013)

As used in this section "term of imprisonment" means incarceration in any correctional facility; it does not refer exclusively to confinement in state prison. State v. Frier, 264 Or App 541, 333 P3d 1093 (2014)

Where court suspended judgment and placed defendant on probation following defendant's no contest plea to DUII charge, defendant was "convicted" of DUII for purposes of this section. State v. Donathan, 281 Or App 781, 383 P3d 946 (2016), Sup Ct review denied

Where defendant, convicted of driving under influence of intoxicants, traveled in motorized wheelchair from sidewalk into crosswalk to reach other side of street, defendant was pedestrian, not operator of motor vehicle, under this section. State v. Greene, 283 Or App 120, 388 P3d 1132 (2016)

Law Review Citations

Under Former Similar Statute

10 WLJ 12 (1973)

In General

27 WLR 301 (1991)


Source

Last accessed
Jun. 26, 2021