Implied consent to breath or blood test
- confiscation of license upon refusal or failure of test
Source:
Section 813.100 — Implied consent to breath or blood test; confiscation of license upon refusal or failure of test, https://www.oregonlegislature.gov/bills_laws/ors/ors813.html.
See also annotations under ORS 483.634 in permanent edition.
Notes of Decisions
Under former similar statute
Constitutionality
Once probable cause plus exigent circumstances are established the person’s consent to the test or lack thereof is irrelevant for constitutional purposes. State v. Osburn, 13 Or App 92, 508 P2d 837 (1973)
Assent or refusal of test
Officer is not required to read each provision of implied consent law to violator nor to elaborate on legal mechanics of administrative process or trial on appeal. Palmer v. Dept. of Motor Vehicles, 7 Or App 219, 490 P2d 526 (1971)
Petitioner driver as a matter of law was not justified or excused in refusing to submit to a breathalyzer test a second time after machine failed to operate the first time. Kauffman v. Motor Vehicles Div., 10 Or App 582, 500 P2d 473 (1972), Sup Ct review denied
The statutory right of refusal to a chemical test is not limited to occasions when the person is under arrest for driving under the influence of intoxicating liquor. State v. Annen, 12 Or App 203, 504 P2d 1400 (1973), Sup Ct review denied
Although it is required that driver be informed of certain rights and consequences of refusal to take breathalyzer test, there is no requirement that driver understand information given. Stavros v. Dept. of Motor Vehicles, 12 Or App 356, 507 P2d 45 (1973)
As a matter of law, the voluntary postponement for a specified period of time of the administration of a breathalyzer test by a police officer to enable the driver to contact his attorney does not itself constitute the waiver of a valid previous demand to take the test beyond the time allowed by the officer. Cavagnaro v. Motor Vehicles Div., 19 Or App 725, 528 P2d 1090 (1974)
Inquiry by an arrested driver as to whether he has to take a breathalyzer test triggers the officer’s duty to inform him of the same statutory rights and consequences that a driver who refuses the test must be told. State v. Freymuller, 26 Or App 411, 552 P2d 867 (1976)
Refusal to take a breathalyzer test until after an unobserved conference with counsel constituted a refusal to submit to the test. Capretta v. Motor Vehicles Div., 29 Or App 241, 562 P2d 1236 (1977)
Breathalyzer test results were properly 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 arresting officer said to defendant “Bill, would you step over here and blow into the machine,” and defendant complied without any requests for further information respecting right to refuse test, requirement that test be administered “upon the request of a police officer” was met and test results were properly admitted. State v. Malpass, 34 Or App 971, 580 P2d 209 (1978), Sup Ct review denied
In prosecution under [former] ORS 487.540, actual consent to use of breathalyzer is not question for jury. State v. Hawk, 38 Or App 117, 589 P2d 1136 (1979), Sup Ct review denied
Where there was neither inquiry by defendant concerning right or consequences of refusal, nor any misinformation concerning that right, fact that officer did not give defendant complete information concerning consequences of refusal to take breathalyzer did not warrant suppression of test results. State v. Burnham, 44 Or App 617, 606 P2d 214 (1980), Sup Ct review denied
Where defendant did not indicate desire to refuse breathalyzer test, but only indicated a wish to take blood test, this was not unequivocal refusal which would trigger officer’s obligation to advise defendant of consequences of refusal. State v. Coy, 48 Or App 267, 616 P2d 1194 (1980)
Where defendant submitted to breathalyzer test only after demanding and being denied permission to telephone attorney for advice, test results were not obtained with defendant’s voluntary and informed assent. State v. Scharf, 288 Or 451, 605 P2d 690 (1980)
Arrested person has right to call attorney before making decision to take test or not; whether counsel is present or not when person decided to refuse to submit to test does not affect right to fair trial; counsel need not be present during administration of breath test itself. State v. Gardner, 52 Or App 663, 629 P2d 412 (1981), Sup Ct review denied
One has right to consult with counsel before being required to decide to submit to breath test unless: 1) the delay inherent in making call would defeat purpose of test; 2) no telephone is available; or 3) some other reason exists which would make an individual’s exercise of the right likely to invalidate the test. Bunten v. MVD, 55 Or App 515, 639 P2d 135 (1982), aff’d Moore v. MVD, 293 Or 715, 652 P2d 794 (1982)
Request by defendant to delay decision on whether to take breath test until defendant’s attorney arrived was properly considered a refusal. State v. Kniesteadt, 55 Or App 878, 640 P2d 642 (1982)
Defendant’s request to speak to lawyer prior to taking breath test is not refusal. State v. Battenberg, 60 Or App 531, 654 P2d 1146 (1982); Moore v. MVD, 293 Or 715, 652 P2d 794 (1982)
Where petitioner, appealing administrative suspension of driving privileges, argued merely that there was unreasonable delay in requesting him to submit to breath test, delay was not relevant inquiry and issue was not why but whether test was refused. Updegraff v. Motor Vehicles Div., 80 Or App 378, 722 P2d 1270 (1986), Sup Ct review denied
Unavailability of Intoxilyzer at time individual refuses to submit to breath test does not prevent refusal to submit from constituting “refusal” in absence of consequent prejudice and lack of causal relationship between individual’s refusal and unavailability of Intoxilyzer. Jones v. MVD, 83 Or App 209, 730 P2d 1273 (1986)
Where delay of 29 minutes occurred between time petitioner arrived at jail and time petitioner was able to speak with attorney, delay would not have affected validity of breath test and petitioner’s repeated request to speak with attorney before taking test was not refusal. Morgan v. MVD, 85 Or App 267, 736 P2d 580 (1987), Sup Ct review denied
Reasonable grounds for arrest
Petitioner has the burden to prove by a preponderance of the evidence lack of reasonable ground to believe petitioner was driving under the influence. Mallory v. Motor Vehicles Div., 20 Or App 380, 531 P2d 758 (1975)
The court’s disbelief of the arresting officer’s testimony offered to show reasonable grounds for arrest is no substitute for evidence positively supporting lack of such grounds. Mallory v. Motor Vehicles Div., 20 Or App 380, 531 P2d 758 (1975)
In prosecution under [former] ORS 487.540, probable cause to arrest is not question for jury. State v. Hawk, 38 Or App 117, 589 P2d 1136 (1979), Sup Ct review denied
Existence of probable cause to arrest for violation of [former] ORS 487.540 is not determinative, so where defendant was arrested for violation of invalid municipal ordinance, factual determination as to actual grounds for arrest had to be made. Brinkley v. Motor Vehicles Div., 47 Or App 25, 613 P2d 1071 (1980), aff’d 306 Or 47, 755 P2d 701 (1988)
MVD may not suspend driving privileges based on breath test result unless driver is first validly arrested. Pooler v. MVD, 88 Or App 475, 746 P2d 716 (1987), aff’d 306 Or 47, 755 P2d 701 (1988)
In general
Implied Consent Law, by its terms, applies only to persons who operate motor vehicle and has no application to bicyclist. State v. Woodruff, 81 Or App 484, 726 P2d 396 (1986), Sup Ct review denied
Where defendant refused to submit to intoxilyzer test and was informed of rights and consequences of test, suspension was proper despite defendant subsequently asking to take test. Bergstrom v. Motor Vehicles Division, 104 Or App 141, 799 P2d 673 (1990)
Despite fact that defendant spoke and understood only Vietnamese and sheriff read consequences and rights in English, defendant was sufficiently informed because it is not required that defendant understand consequences and rights. State v. Nguyen, 107 Or App 716, 813 P2d 569 (1991), Sup Ct review denied
Where defendant was placed under arrest for offense of driving while suspended but, by time he was asked to take Intoxilyzer test he had performed series of field sobriety tests, had been advised that DUII was crime and advised that if he refused breath test evidence of refusal would be admissible against him, he was sufficiently informed he was in custody for DUII as well as for driving while suspended and refusal to take Intoxilyzer test was admissible in evidence. State v. Scott, 111 Or App 308, 826 P2d 71 (1992)
Where, when asked to take breath test, respondent said, “No, I want a blood test, not a breath test. I want an attorney,” respondent’s statement constituted refusal to take test. Ahlbin v. MVD, 113 Or App 441, 833 P2d 1291 (1992)
Notwithstanding defendant’s consent to breath test, officer’s failure to give required warnings before administering breath test requires suppression of results. State v. Lyons, 118 Or App 660, 848 P2d 1230 (1993)
Defendant does not have constitutional right to have attorney present during administration of test. City of Roseburg v. Dykstra, 121 Or App 317, 854 P2d 985 (1993), Sup Ct review denied
Reasonable opportunity for defendant to communicate with attorney does not require that conference be free from police observance. Gildroy v. MVD, 315 Or 617, 848 P2d 96 (1993)
Validity of arrest preceding request for chemical breath test is at issue at Motor Vehicles Division hearing only if issue is raised by defendant. Warner v. MVD, 126 Or App 164, 868 P2d 6 (1994)
Operation of vehicle need not be volitional for person to be subject to implied consent law. Moe v. MVD, 133 Or App 75, 889 P2d 1334 (1995)
License suspension is remedial measure taken for purpose of public safety and therefore is not punishment for double jeopardy purposes. State v. Phillips, 138 Or App 468, 909 P2d 882 (1996), Sup Ct review denied
That statutory consent cannot be implied to second breathalyzer test does not render second test involuntary as matter of law. State v. McCann, 144 Or App 403, 927 P2d 129 (1996), Sup Ct review denied
Where defendant is requested to take breath test, subject to right to request consultation with attorney, any response other than unqualified, unequivocal consent constitutes refusal. Caldeira v. DMV, 181 Or App 168, 45 P3d 489 (2002), Sup Ct review denied
Where police violated individual’s right to confer with counsel privately prior to taking breath test, violation required exclusion of breath test results. State v. Durbin, 335 Or 183, 63 P3d 576 (2003)
Where chemical test is performed while person is receiving medical care or pursuant to valid search warrant, ORS 813.320 prohibits suppression of test results as remedy for violation of defendant’s right to refuse test. State v. Shantie, 193 Or App 813, 92 P3d 746 (2004)
Right of defendant to reasonable opportunity for consulting privately with counsel before deciding whether to take breath test applies in situations where defendant faces prospect of charges other than driving under influence of intoxicants and breath test could furnish incriminating evidence regarding those other charges. State v. Dinsmore, 200 Or App 432, 116 P3d 226 (2005), aff’d 342 Or 1, 147 P3d 1146 (2006)
Constitutional right of person to consult with attorney prior to taking breath test is dependent upon person making request to consult with attorney. State v. Schneider, 201 Or App 546, 120 P3d 16 (2005), on reconsideration 204 Or App 710, 131 P3d 842 (2006), Sup Ct review denied
Right to reasonable opportunity for consulting counsel does not give indigent driver right to have counsel provided before deciding whether to take breath test. State v. Smalls, 201 Or App 652, 120 P3d 506 (2005), Sup Ct review denied
Where officer does not treat initial test refusal as decisive response ending transaction between officer and arrestee, whether arrestee refused test is determined by later response. State v. McHenry, 205 Or App 310, 134 P3d 1016 (2006)
Driver’s initial refusal to take breath test does not preclude police officer from inviting driver to reconsider or preclude driver from accepting invitation. State v. Kirsch, 215 Or App 67, 168 P3d 318 (2007)
Provision of incorrect information about consequences and rights concerning test is not grounds for suppressing test result. State v. Bloom, 216 Or App 245, 172 P3d 663 (2007), Sup Ct review denied
Where police officer obtains consent by threatening action officer is not authorized to perform, consent is invalid. Hays v. DMV, 228 Or App 689, 209 P3d 405 (2009). But see Murdoch v. DMV, 311 Or App 386, 492 P3d 89 (2021), Sup Ct review allowed
Police officer who informs person of consequences and rights related to refusing to take breath or blood test is not required to make determination that informed person understands those consequences and rights. State v. Cabanilla, 351 Or 622, 273 P3d 125 (2012)
Defendant is entitled to suppression of evidence from breath test that immediately followed custodial interrogation when interrogation continued in violation of Art. I, Section 12. State v. Swan, 363 Or 121, 420 P3d 9 (2018)
Requirement that person be informed of “rights and consequences” before chemical test is “administered” does not mean that officer must inform person of rights prior to requesting that person takes test. Murdoch v. DMV, 311 Or App 386, 492 P3d 89 (2021), Sup Ct review allowed
Law Review Citations
Under former similar statute
19 WLR 807 (1983)
In general
30 WLR 723 (1994); 48 WLR 521 (2012)
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