Driving Under the Influence of Intoxicants

ORS 813.150
Chemical test at request of arrested person


In addition to a chemical test of the breath, blood or urine administered under ORS 813.100 (Implied consent to breath or blood test) or 813.140 (Chemical test with consent), upon the request of a police officer, a person shall be permitted upon request, at the person’s own expense, reasonable opportunity to have any licensed physician and surgeon, licensed professional nurse or qualified technician, chemist or other qualified person of the person’s own choosing administer a chemical test or tests of the person’s breath or blood for the purpose of determining the alcoholic content of the person’s blood or a chemical test or tests of the person’s blood or urine, or both, for the purpose of determining the presence of cannabis, a controlled substance or an inhalant in the person. The failure or inability to obtain such a test or tests by a person shall not preclude the admission of evidence relating to a test or tests taken upon the request of a police officer. [1983 c.338 §594; 1985 c.16 §300; 1999 c.619 §12; 2017 c.21 §84]

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)


Source

Last accessed
Jun. 26, 2021