Chemical test at request of arrested person
Source:
Section 813.150 — Chemical test at request of arrested person, https://www.oregonlegislature.gov/bills_laws/ors/ors813.html.
Notes of Decisions
Under former similar statute
Where, upon defendant’s request for independent blood test, officer took him to hospital, test was denied for lack of money, and officer refused to wait for defendant’s wife to bring money, “reasonable opportunity,” within meaning of this section, was denied. State v. Hilditch, 36 Or App 435, 584 P2d 376 (1978)
Where arrestee did not obtain independent test because he was denied reasonable opportunity by police, there was neither “failure nor inability” to obtain test under this section, and suppression of breathalyzer as remedy for statute violation was proper. State v. Hilditch, 36 Or App 435, 584 P2d 376 (1978)
Where defendant had opportunity to have independent chemical blood alcohol test taken, but telephone call revealed hospital would not perform test unless defendant could pay in cash or with credit card, ambiguous statement of police officer that blood test obtained “in the morning” would be of no value did not deny defendant reasonable opportunity to obtain test and suppression of breathalyzer test results was improper. State v. Miller, 41 Or App 687, 598 P2d 1262 (1979)
Driver arrested for DUII has right to independent blood alcohol test regardless of whether breath test registers more or less than 0.08 percent. Wimmer v. MVD, 75 Or App 287, 706 P2d 182 (1985), Sup Ct review denied
In general
Where defendant acted in combative manner, defendant was not denied reasonable opportunity to obtain blood test. State v. Darlin, 122 Or App 172, 857 P2d 859 (1993)
“Reasonable opportunity” for second test does not require that second test be administered by person specified in statute upon request of defendant. State v. Andes, 148 Or App 114, 939 P2d 102 (1997)
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