Driving Under the Influence of Intoxicants

ORS 813.160
Methods of conducting chemical analyses

  • duties of Department of State Police
  • reports
  • costs


(1)

A chemical analysis is valid under ORS 813.300 (Use of blood alcohol percentage as evidence) if:

(a)

It is an analysis of a person’s blood for alcohol content and is performed in:

(A)

A laboratory certified or accredited under 42 C.F.R. part 493 and approved for toxicology testing;

(B)

A laboratory licensed under ORS 438.110 (Standards for issuance and renewal of laboratory license) and approved for toxicology testing; or

(C)

A forensic laboratory established by the Department of State Police under ORS 181A.150 (Forensic laboratories) that is accredited by a national forensic accrediting organization.

(b)

It is an analysis of a person’s breath and is performed by an individual possessing a valid permit to perform chemical analyses issued by the Department of State Police and is performed according to methods approved by the Department of State Police. For purposes of this paragraph, the Department of State Police shall do all of the following:

(A)

Approve methods of performing chemical analyses of a person’s breath.

(B)

Prepare manuals and conduct courses throughout the state for the training of police officers in chemical analyses of a person’s breath, which courses shall include, but are not limited to, approved methods of chemical analyses, use of approved equipment and interpretation of test results together with a written examination on these subjects.

(C)

Test and certify the accuracy of equipment to be used by police officers for chemical analyses of a person’s breath before regular use of the equipment and periodically thereafter at intervals of not more than 90 days. Tests and certification required by this subparagraph must be conducted by trained technicians. Certification under this subparagraph does not require a signed document.

(D)

Ascertain the qualifications and competence of individuals to conduct chemical analyses in accordance with one or more methods approved by the department.

(E)

Issue permits to individuals according to their qualifications. Permits may be issued to police officers only upon satisfactory completion of the prescribed training course and written examination. A permit must state the methods and equipment that the police officer is qualified to use. Permits are subject to termination or revocation at the discretion of the Department of State Police.

(2)

In conducting a chemical test of the blood, only a duly licensed physician or a person acting under the direction or control of a duly licensed physician may withdraw blood or pierce human tissue. A licensed physician, or a qualified person acting under the direction or control of a duly licensed physician, is not civilly liable for withdrawing any bodily substance, in a medically acceptable manner, at the request of a peace officer.

(3)

An individual who performs a chemical analysis of breath or blood under ORS 813.100 (Implied consent to breath or blood test) or 813.140 (Chemical test with consent) shall prepare and sign a written report of the findings of the test that must include the identification of the police officer upon whose request the test was administered.

(4)

Any individual having custody of the report mentioned in subsection (3) of this section shall, upon request of the person tested, furnish that person or that person’s attorney, a copy of the report.

(5)

The expense of conducting a chemical test as provided by ORS 813.100 (Implied consent to breath or blood test) or 813.140 (Chemical test with consent) must be paid by the governmental unit on whose equipment the test is conducted or by the governmental unit upon whose request the test was administered if no governmental unit’s equipment is used to conduct the test. [1983 c.338 §173; 1985 c.16 §57; 1985 c.337 §2; 1995 c.351 §1; 2003 c.19 §1]

Notes of Decisions

Under Former Similar Statute

Police officer was properly certified to administer alcohol breath test. State v. Zimmerman, 14 Or App 17, 510 P2d 1336 (1973), Sup Ct review denied

State has burden of proving that the equipment used in the test was tested and certified in compliance with this section. State v. Kaser, 15 Or App 411, 515 P2d 1330 (1973)

Court must make preliminary determination as to whether witness had valid current permit to operate breathalyzer at time of test, and comment of court that officer was qualified to operate machine did not invade province of jury. State v. Winters, 34 Or App 157, 578 P2d 439 (1978), Sup Ct review denied

Blood test results were admissible in trial for manslaughter though performed by criminologists not in possession of valid permit as required by this section, as [former] ORS 487.820 permits introduction of any competent, relevant evidence in proceeding other than for driving under influence of intoxicants notwithstanding violations of implied consent law. State v. Heintz, 34 Or App 175, 578 P2d 447 (1978), as modified by 35 Or App 155, 580 P2d 1064 (1978), aff'd 286 Or 239, 594 P2d 385 (1979)

Where proof was offered that breathalyzer was tested and certified as accurate, proper foundation was laid for admissibility of test results, and defect discovered subsequent to defendant's examination related only to weight to be accorded such results. State v. Palomino, 37 Or App 309, 587 P2d 107 (1978)

Where persons performing blood alcohol tests did not have permit issued under this section, results of tests were inadmissible. State v. Hilton, 49 Or App 927, 620 P2d 970 (1980), Sup Ct review denied

It was not error to admit evidence of certification of breath testing machine which was made after machine was used to test defendant's breath as evidence was relevant and probative. State v. Mattila, 52 Or App 743, 629 P2d 845 (1981)

Where state failed to provide defendant with certified copies of intoxilyzer results as required by this section, but did provide him with accurate copies of those results and offered to cure defect before trial, there was no prejudice to defendant and suppression of results by trial court was error. State v. Sarratt, 52 Or App 443, 628 P2d 752 (1981)

Letter certifying testing of equipment's accuracy was admissible where it stated officer tested machine "in accordance with" statutory requirements, and only reasonable reading of that phrase was that machine was tested and certified by a trained technician, as required by this section. State v. Pfortmiller, 53 Or App 394, 632 P2d 459 (1981), Sup Ct review denied

This section does not prohibit Oregon State Police from using an intoxilyzer checklist form prepared by Health Division. State v. Zipf, 54 Or App 305, 634 P2d 495 (1981)

Transfer of authority for issuance of intoxilyzer operator permits from Health Division to Department of State Police did not invalidate properly issued Health Division permits, so results of intoxilyzer test performed by operator with Health Division permit were not subject to suppression. State v. Jones, 55 Or App 1, 637 P2d 162 (1981)

Defendant may introduce breathalyzer test results having exculpatory tendency without laying foundation of certification of machine as required for state to introduce test results; if state believes test unreliable, it may offer evidence in rebuttal. State v. Milstead, 57 Or App 658, 646 P2d 63 (1982), Sup Ct review denied

This section and rules authorized under it provide the requirement for admissibility of breath test results; rule does not require removal of dentures, which may go to weight of test results but not admissibility. State v. Allen, 74 Or App 275, 702 P2d 1118 (1985), Sup Ct review denied

In General

State police are not required to preserve equilibrator solution used to certify Intoxilyzer machine in order to introduce Intoxilyzer certification into evidence. State v. Buche, 87 Or App 505, 742 P2d 1196 (1987), Sup Ct review denied

In order for police officer to validly "possess" permit to administer blood alcohol test, officer does not have to prove actual physical possession of written document. Fleming v. MVD, 87 Or App 613, 743 P2d 764 (1987)

Where officer, in marking checklist for Intoxilyzer test required by this section marked every box except that which attests to actual taking of breath sample, but, nevertheless, filled in blank space corresponding to that box which asks for time that sample was taken, and testified that he completed every step, test result was admissible. State v. Olson, 88 Or App 271, 744 P2d 1327 (1987)

Though Intoxilyzer operator failed to sign evidence card, operator's failure did not affect test result or make it untrustworthy and results were admissible in evidence. State v. Sweeney, 88 Or App 358, 745 P2d 809 (1987), Sup Ct review denied

Trial court erred in excluding evidence of Intoxilyzer test when person who administered test was not available to testify as defendant did not have right to cross-examine that person and it was sufficient that state offered testimony of person who had observed test, was licensed to administer test and could testify from personal knowledge whether test administration procedures were followed. State v. McCormack, 92 Or App 84, 756 P2d 1281 (1988), Sup Ct review denied

Failure to properly enter information on Inoxilyzer checklist does not render breath test results invalid where improper recording does not affect performance of test or accuracy of test as evidence. State v. Roe, 95 Or App 477, 770 P2d 69 (1989), Sup Ct review denied; State v. Hemkin, 102 Or App 79, 792 P2d 483 (1990)

Card showing results of Intoxilyzer test was admissible even though card had been used during calibration of Intoxilyzer and results on card were unclear, because there was other evidence of result and reuse of card only affected weight to be given evidence. State v. Holcomb, 99 Or App 156, 781 P2d 396 (1989)

Mere failure to memorialize properly performed test does not require suppression of test results, since defect goes to weight of evidence, not admissibility of evidence. State v. Miller, 103 Or App 303, 796 P2d 1253 (1990)

Requirement that technician "certify" machine test result means that form attesting to machine accuracy must bear technician's signature. Lake v. MVD, 133 Or App 550, 892 P2d 1025 (1995), Sup Ct review denied

Evidence of noncompliance with breath testing procedures does not automatically render test result invalid. State v. Balderson, 138 Or App 531, 910 P2d 1138 (1996)

Failure to establish that blood sample was withdrawn by licensed physician or person acting under direction or control of physician does not require suppression of test result. State v. Warner, 181 Or App 622, 47 P3d 497 (2002), Sup Ct review denied

Individual other than police officer may hold valid permit for performing chemical analysis of person's breath. State v. Schaff, 185 Or App 61, 57 P3d 907 (2002), Sup Ct review denied

Where defendant is hospitalized or receiving medical care, state is relieved under ORS 813.320 from demonstrating that blood test results otherwise competent as evidence were obtained in compliance with this section. State v. Snyder, 337 Or 410, 97 P3d 1181 (2004)

Certificate of equipment accuracy does not violate constitutional right to confront witnesses because certificate falls under public records exception and is not testimonial. State v. Norman, 203 Or App 1, 125 P3d 15 (2005), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021