ORS 813.130
Rights of and consequences for person asked to take test
(1)
The information about rights and consequences shall be substantially in the form prepared by the Department of Transportation. The department may establish any form it determines appropriate and convenient.(2)
Except as provided in subsection (3) of this section, the information about rights and consequences shall be substantially as follows:(a)
Driving under the influence of intoxicants is a crime in Oregon, and the person is subject to criminal penalties if a test under ORS 813.100 (Implied consent to breath or blood test) shows that the person is under the influence of intoxicants. If the person fails a test, evidence of the failure may also be offered against the person.(b)
The person will fail a test under ORS 813.100 (Implied consent to breath or blood test) for purposes of criminal penalties if the test discloses a blood alcohol content of 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. The person will fail a test for purposes of the Motorist Implied Consent Law if the test discloses a blood alcohol content of:(A)
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 if the person was not driving a commercial motor vehicle;(B)
0.04 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood if the person was driving a commercial motor vehicle; or(C)
Any amount if the person was under 21 years of age.(c)
If the person fails a test under ORS 813.100 (Implied consent to breath or blood test), the person’s driving privileges will be suspended. The outcome of a criminal charge for driving under the influence of intoxicants will not affect the suspension.(d)
If the person fails a breath test under ORS 813.100 (Implied consent to breath or blood test) and has an Oregon driver license or permit, the license or permit will be taken immediately and, unless the person does not currently have full valid driving privileges, a temporary driving permit will be issued to the person.(e)
After taking a test under ORS 813.100 (Implied consent to breath or blood test), the person will have a reasonable opportunity, upon request, for an additional chemical test for blood alcohol content to be performed at the person’s own expense by a qualified individual of the person’s choosing.(f)
The person has a right to a hearing to challenge the validity of the suspension before the suspension becomes effective. The person must make a written request to the department for such a hearing. If the person wins at the hearing, the person’s driving privileges will not be suspended. If the person loses at the hearing, the suspension will remain in effect during any court review of the hearing.(g)
If the person is issued a temporary driving permit under ORS 813.100 (Implied consent to breath or blood test), the information provided to the person shall include the number of hours before the driving permit will be effective and the number of days the permit will be effective.(h)
The information provided to the person shall include the number of days within which a person must request a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test).(i)
The information provided to the person shall include the number of days within which a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test) will be held.(j)
The person may possibly qualify for a hardship permit in 30 days if the person fails a test, depending on the person’s driving record.(k)
If the person is driving a commercial motor vehicle, and takes a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) after being informed of the rights and consequences under paragraphs (a) to (j) of this subsection, the following additional information shall be provided:(A)
If the level of alcohol in the person’s blood is 0.04 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood, the person’s commercial driving privileges or right to apply for commercial driving privileges will be suspended and no hardship permit authorizing the person to drive a commercial motor vehicle will be issued.(B)
The suspension of the person’s commercial driving privileges or right to apply for commercial driving privileges will be for the person’s lifetime if the person takes a breath or blood test and the level of alcohol in the person’s blood is 0.04 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood and:(i)
The person previously has been convicted of failure to perform the duties of a driver;(ii)
The person previously has been convicted of a crime punishable as a felony and the person was driving a motor vehicle at the time the offense was committed;(iii)
The person previously has been convicted of driving a commercial motor vehicle while the person’s commercial driving privileges or right to apply for commercial driving privileges was suspended or revoked for offenses committed while operating a commercial motor vehicle;(iv)
The person previously has been convicted of any degree of murder, manslaughter or criminally negligent homicide resulting from the operation of a commercial motor vehicle or assault in the first degree resulting from the operation of a commercial motor vehicle;(v)
The person previously has been convicted of driving while under the influence of intoxicants;(vi)
The person’s commercial driving privileges previously have been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test); or(vii)
The person’s right to apply for commercial driving privileges previously has been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) resulting from the operation of a commercial motor vehicle.(3)
A person who refuses to submit to a chemical test after being informed of the rights and consequences in subsection (2) of this section shall be provided additional information, substantially as follows:(a)
If the person refuses to provide consent to a breath or blood test, and is thereafter requested to provide only physical cooperation to submit to a breath or blood test, and the person refuses to physically submit to a test, evidence of that refusal may be offered against the person.(b)
If the person refuses to submit to a test under ORS 813.100 (Implied consent to breath or blood test), the person’s driving privileges will be suspended. The outcome of a criminal charge for driving under the influence of intoxicants will not affect the suspension. The suspension will be substantially longer if a person refuses a test.(c)
If the person refuses to submit to a breath test under ORS 813.100 (Implied consent to breath or blood test) and has an Oregon driver license or permit, the license or permit will be taken immediately and, unless the person does not currently have full valid driving privileges, a temporary driving permit will be issued to the person.(d)
If the person refuses to submit to a test under ORS 813.100 (Implied consent to breath or blood test), the person is not eligible for a hardship permit for at least 90 days, and possibly for three years, depending on the following factors set forth in ORS 813.430 (Grounds for increase in duration of suspension):(A)
Whether the person is presently participating in a driving while under the influence of intoxicants diversion program in this state or in any similar alcohol or drug rehabilitation program in this or another jurisdiction; or(B)
Whether within the five years preceding the date of arrest any of the following occurred:(i)
A suspension of the person’s driving privileges under ORS 813.410 (Suspension upon receipt of police report on implied consent test) or 482.540 (1981 Replacement Part) became effective;(ii)
The person was convicted of driving while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or the statutory counterpart to ORS 813.010 (Driving under the influence of intoxicants) in another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension);(iii)
The person was convicted of driving while under the influence of intoxicants in violation of a municipal ordinance in this state or another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension); or(iv)
The person commenced participating in a driving while under the influence of intoxicants diversion program in this state or in any similar alcohol or drug rehabilitation program in this or another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension).(e)
If the person refuses to submit to a breath test under ORS 813.100 (Implied consent to breath or blood test), or refuses to provide a urine sample under ORS 813.131 (Implied consent to urine test) and 813.132 (Consequences of refusing to take urine test), the person is subject to a fine of at least $500 and not more than $1,000.(f)
The person has a right to a hearing to challenge the validity of the suspension before the suspension becomes effective. The person must make a written request to the department for such a hearing. If the person wins at the hearing, the person’s driving privileges will not be suspended. If the person loses at the hearing, the suspension will remain in effect during any court review of the hearing.(g)
If the person is issued a temporary driving permit under ORS 813.100 (Implied consent to breath or blood test), the number of hours before the driving permit will be effective and the number of days the permit will be effective.(h)
The number of days within which a person must request a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test).(i)
The number of days within which a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test) will be held.(j)
The person may possibly qualify for a hardship permit in 30 days if the person fails a test, depending on the person’s driving record.(k)
If the person is driving a commercial motor vehicle, further information as follows:(A)
If the person refuses to submit to a test under ORS 813.100 (Implied consent to breath or blood test), the person’s commercial driving privileges or right to apply for commercial driving privileges will be suspended and no hardship permit authorizing the person to drive a commercial motor vehicle will be issued. The suspension will be substantially longer if the person refuses the test.(B)
The suspension of the person’s commercial driving privileges or right to apply for commercial driving privileges will be for the person’s lifetime if the person refuses to submit to a test under ORS 813.100 (Implied consent to breath or blood test) and:(i)
The person previously has been convicted of failure to perform the duties of a driver;(ii)
The person previously has been convicted of a crime punishable as a felony and the person was driving a motor vehicle at the time the offense was committed;(iii)
The person previously has been convicted of driving a commercial motor vehicle while the person’s commercial driving privileges or right to apply for commercial driving privileges was suspended or revoked for offenses committed while operating a commercial motor vehicle;(iv)
The person previously has been convicted of any degree of murder, manslaughter or criminally negligent homicide resulting from the operation of a commercial motor vehicle or assault in the first degree resulting from the operation of a commercial motor vehicle;(v)
The person previously has been convicted of driving while under the influence of intoxicants;(vi)
The person’s commercial driving privileges previously have been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test); or(vii)
The person’s right to apply for commercial driving privileges previously has been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) resulting from the operation of a commercial motor vehicle.(4)
Nothing in this section prohibits the department from providing additional information concerning rights and consequences that the department considers convenient or appropriate. [1985 c.672 §22; 1987 c.673 §3; 1987 c.801 §11; 1989 c.171 §92; 1989 c.636 §43; 1991 c.185 §15; 1991 c.860 §10; 1993 c.305 §4; 1995 c.568 §4; 2003 c.814 §3; 2005 c.649 §28; 2009 c.607 §2; 2009 c.614 §2; 2013 c.237 §27; 2019 c.475 §2](2)
Except as provided in subsection (3) of this section, the information about rights and consequences shall be substantially as follows:(a)
Driving under the influence of intoxicants is a crime in Oregon, and the person is subject to criminal penalties if a test under ORS 813.100 (Implied consent to breath or blood test) shows that the person is under the influence of intoxicants. If the person fails a test, evidence of the failure may also be offered against the person.(b)
The person will fail a test under ORS 813.100 (Implied consent to breath or blood test) for purposes of criminal penalties if the test discloses a blood alcohol content of 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. The person will fail a test for purposes of the Motorist Implied Consent Law if the test discloses a blood alcohol content of:(A)
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 if the person was not driving a commercial motor vehicle;(B)
0.04 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood if the person was driving a commercial motor vehicle; or(C)
Any amount if the person was under 21 years of age.(c)
If the person fails a test under ORS 813.100 (Implied consent to breath or blood test), the person’s driving privileges will be suspended. The outcome of a criminal charge for driving under the influence of intoxicants will not affect the suspension.(d)
If the person fails a breath test under ORS 813.100 (Implied consent to breath or blood test) and has an Oregon driver license or permit, the license or permit will be taken immediately and, unless the person does not currently have full valid driving privileges, a temporary driving permit will be issued to the person.(e)
After taking a test under ORS 813.100 (Implied consent to breath or blood test), the person will have a reasonable opportunity, upon request, for an additional chemical test for blood alcohol content to be performed at the person’s own expense by a qualified individual of the person’s choosing.(f)
The person has a right to a hearing to challenge the validity of the suspension before the suspension becomes effective. The person must make a written request to the department for such a hearing. If the person wins at the hearing, the person’s driving privileges will not be suspended. If the person loses at the hearing, the suspension will remain in effect during any court review of the hearing.(g)
If the person is issued a temporary driving permit under ORS 813.100 (Implied consent to breath or blood test), the information provided to the person shall include the number of hours before the driving permit will be effective and the number of days the permit will be effective.(h)
The information provided to the person shall include the number of days within which a person must request a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test).(i)
The information provided to the person shall include the number of days within which a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test) will be held.(j)
The person may possibly qualify for a hardship permit in 30 days if the person fails a test, depending on the person’s driving record.(k)
If the person is driving a commercial motor vehicle, and takes a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) after being informed of the rights and consequences under paragraphs (a) to (j) of this subsection, the following additional information shall be provided:(A)
If the level of alcohol in the person’s blood is 0.04 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood, the person’s commercial driving privileges or right to apply for commercial driving privileges will be suspended and no hardship permit authorizing the person to drive a commercial motor vehicle will be issued.(B)
The suspension of the person’s commercial driving privileges or right to apply for commercial driving privileges will be for the person’s lifetime if the person takes a breath or blood test and the level of alcohol in the person’s blood is 0.04 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood and:(i)
The person previously has been convicted of failure to perform the duties of a driver while holding commercial driving privileges or while driving a commercial motor vehicle;(ii)
The person previously has been convicted of a crime punishable as a felony and the person was driving a motor vehicle while holding commercial driving privileges at the time the offense was committed;(iii)
The person previously has been convicted of a crime punishable as a felony and the person was driving a commercial motor vehicle;(iv)
The person previously has been convicted of driving a commercial motor vehicle while the person’s commercial driving privileges or right to apply for commercial driving privileges was suspended or revoked for offenses committed while operating a commercial motor vehicle;(v)
The person previously has been convicted of any degree of murder, manslaughter or criminally negligent homicide resulting from the operation of a commercial motor vehicle or assault in the first degree resulting from the operation of a commercial motor vehicle;(vi)
The person previously has been convicted of aggravated vehicular homicide while holding commercial driving privileges or while driving a commercial motor vehicle;(vii)
The person previously has been convicted of aggravated driving while suspended or revoked while holding commercial driving privileges or while driving a commercial motor vehicle;(viii)
The person previously has been convicted of driving while under the influence of intoxicants while holding commercial driving privileges or while driving a commercial motor vehicle;(ix)
The person’s commercial driving privileges previously have been suspended under ORS 809.510 (Conviction of crime) for a diversion agreement entered into under ORS 813.230 (Diversion agreement) with respect to conduct that occurred while the person held commercial driving privileges;(x)
The person’s commercial driving privileges previously have been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) for conduct that occurred while the person held commercial driving privileges or was operating a commercial motor vehicle; or(xi)
The person’s right to apply for commercial driving privileges previously has been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) resulting from the operation of a commercial motor vehicle or resulting from the operation of a motor vehicle while holding commercial driving privileges.(3)
A person who refuses to submit to a chemical test after being informed of the rights and consequences in subsection (2) of this section shall be provided additional information, substantially as follows:(a)
If the person refuses to provide consent to a breath or blood test, and is thereafter requested to provide only physical cooperation to submit to a breath or blood test, and the person refuses to physically submit to a test, evidence of that refusal may be offered against the person.(b)
If the person refuses to submit to a test under ORS 813.100 (Implied consent to breath or blood test), the person’s driving privileges will be suspended. The outcome of a criminal charge for driving under the influence of intoxicants will not affect the suspension. The suspension will be substantially longer if a person refuses a test.(c)
If the person refuses to submit to a breath test under ORS 813.100 (Implied consent to breath or blood test) and has an Oregon driver license or permit, the license or permit will be taken immediately and, unless the person does not currently have full valid driving privileges, a temporary driving permit will be issued to the person.(d)
If the person refuses to submit to a test under ORS 813.100 (Implied consent to breath or blood test), the person is not eligible for a hardship permit for at least 90 days, and possibly for three years, depending on the following factors set forth in ORS 813.430 (Grounds for increase in duration of suspension):(A)
Whether the person is presently participating in a driving while under the influence of intoxicants diversion program in this state or in any similar alcohol or drug rehabilitation program in this or another jurisdiction; or(B)
Whether within the five years preceding the date of arrest any of the following occurred:(i)
A suspension of the person’s driving privileges under ORS 813.410 (Suspension upon receipt of police report on implied consent test) or 482.540 (1981 Replacement Part) became effective;(ii)
The person was convicted of driving while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or the statutory counterpart to ORS 813.010 (Driving under the influence of intoxicants) in another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension);(iii)
The person was convicted of driving while under the influence of intoxicants in violation of a municipal ordinance in this state or another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension); or(iv)
The person commenced participating in a driving while under the influence of intoxicants diversion program in this state or in any similar alcohol or drug rehabilitation program in this or another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension).(e)
If the person refuses to submit to a breath test under ORS 813.100 (Implied consent to breath or blood test), or refuses to provide a urine sample under ORS 813.131 (Implied consent to urine test) and 813.132 (Consequences of refusing to take urine test), the person is subject to a fine of at least $500 and not more than $1,000.(f)
The person has a right to a hearing to challenge the validity of the suspension before the suspension becomes effective. The person must make a written request to the department for such a hearing. If the person wins at the hearing, the person’s driving privileges will not be suspended. If the person loses at the hearing, the suspension will remain in effect during any court review of the hearing.(g)
If the person is issued a temporary driving permit under ORS 813.100 (Implied consent to breath or blood test), the number of hours before the driving permit will be effective and the number of days the permit will be effective.(h)
The number of days within which a person must request a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test).(i)
The number of days within which a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test) will be held.(j)
The person may possibly qualify for a hardship permit in 30 days if the person fails a test, depending on the person’s driving record.(k)
If the person is driving a commercial motor vehicle, further information as follows:(A)
If the person refuses to submit to a test under ORS 813.100 (Implied consent to breath or blood test), the person’s commercial driving privileges or right to apply for commercial driving privileges will be suspended and no hardship permit authorizing the person to drive a commercial motor vehicle will be issued. The suspension will be substantially longer if the person refuses the test.(B)
The suspension of the person’s commercial driving privileges or right to apply for commercial driving privileges will be for the person’s lifetime if the person refuses to submit to a test under ORS 813.100 (Implied consent to breath or blood test) and:(i)
The person previously has been convicted of failure to perform the duties of a driver while holding commercial driving privileges or while driving a commercial motor vehicle;(ii)
The person previously has been convicted of a crime punishable as a felony and the person was driving a motor vehicle while holding commercial driving privileges at the time the offense was committed;(iii)
The person previously has been convicted of a crime punishable as a felony and the person was driving a commercial motor vehicle;(iv)
The person previously has been convicted of driving a commercial motor vehicle while the person’s commercial driving privileges or right to apply for commercial driving privileges was suspended or revoked for offenses committed while operating a commercial motor vehicle;(v)
The person previously has been convicted of any degree of murder, manslaughter or criminally negligent homicide resulting from the operation of a commercial motor vehicle or assault in the first degree resulting from the operation of a commercial motor vehicle;(vi)
The person previously has been convicted of aggravated vehicular homicide while holding commercial driving privileges or while driving a commercial motor vehicle;(vii)
The person previously has been convicted of aggravated driving while suspended or revoked while holding commercial driving privileges or while driving a commercial motor vehicle;(viii)
The person previously has been convicted of driving while under the influence of intoxicants while holding commercial driving privileges or while driving a commercial motor vehicle;(ix)
The person’s commercial driving privileges previously have been suspended under ORS 809.510 (Conviction of crime) for a diversion agreement entered into under ORS 813.230 (Diversion agreement) with respect to conduct that occurred while the person held commercial driving privileges;(x)
The person’s commercial driving privileges previously have been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) for conduct that occurred while the person held commercial driving privileges or was operating a commercial motor vehicle; or(xi)
The person’s right to apply for commercial driving privileges previously has been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) resulting from the operation of a commercial motor vehicle or resulting from the operation of a motor vehicle while holding commercial driving privileges.(4)
Nothing in this section prohibits the department from providing additional information concerning rights and consequences that the department considers convenient or appropriate.
Source:
Section 813.130 — Rights of and consequences for person asked to take test, https://www.oregonlegislature.gov/bills_laws/ors/ors813.html.
Notes of Decisions
Where defendant has been given Miranda warnings and signed consent form to “a search of my person” which advises him that search “may result in criminal charges against me” defendant has expressly consented to blood tests. State v. Davidson, 88 Or App 615, 746 P2d 753 (1987)
Person taken into formal custody on potentially criminal charge is involved in “criminal prosecution” for purposes of Article I, section 11, Oregon Constitution, and for that reason arrested driver has right, on request, to reasonable opportunity to obtain legal advice before deciding whether to submit to breathalyzer exam. State v. Spencer, 305 Or 59, 750 P2d 147 (1988)
Request by officer that driver take breath test did not need to follow particular form. Altree v. MVD, 125 Or App 215, 865 P2d 441 (1993)
Officer reporting that driver was informed of rights and consequences of refusing test need not be same officer who informed driver of rights and consequences. Adams v. MVD, 132 Or App 431, 888 P2d 1078 (1995)
Officer is not required to inform defendant of exact length of suspension that may result from defendant refusal of test. Basile v. DMV, 167 Or App 335, 1 P3d 481 (2000)
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
Law Review Citations
30 WLR 723 (1994)
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