Chapter 813

 

      813.010

 

      See also annotations under ORS 483.992 (2) in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Evidence of blood-alcohol content produced by a chemical test of defendant shortly after drunk driving arrest raises rebuttable presumption that defendant’s blood-alcohol content was no less than shown thereby when he was driving and arrested. State v. Kohlasch, 11 Or App 459, 502 P2d 1158 (1972)

 

      Arresting officer’s testimony concerning defendant’s performance of manual dexterity tests relevant and admissible in prosecution for violation of this section. State v. Swarengin, 12 Or App 290, 506 P2d 729 (1973)

 

      The question whether ampule containing chemical re-agent used in test of defendant’s blood-alcohol level was actually certified held properly submitted to jury. State v. Ramsey, 17 Or App 665, 523 P2d 601 (1974)

 

      In trial of defendant for crime of driving under influence of intoxicants, conviction for lesser-included infraction of driving under influence of intoxicants was permissible, where trial was to the court and not before jury. State v. Mink, 30 Or App 339, 567 P2d 1033 (1977), Sup Ct review denied

 

      Former statute was sufficient statutory counterpart of current driving-under-influence-of-intoxicants statute to convert second offense to Class A misdemeanor. State v. Coleman, 32 Or App 627, 574 P2d 1147 (1978), Sup Ct review denied

 

      Breathalyzer test results were 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 officer stopped defendant suspected of intoxication and tape recorded all conversation with defendant from time he approached car until shortly after arrest, and tape showed officer informed defendant their conversation was being recorded two minutes after they began talking, error in admitting portion of tape recording which occurred before officer informed defendant of its existence was nonprejudicial. State v. Cooney, 36 Or App 217, 584 P2d 329 (1978)

 

      Breathalyzer results were properly suppressed where defendant did not obtain independent blood test because he was denied reasonable opportunity by police. State v. Hilditch, 36 Or App 435, 584 P2d 376 (1978)

 

      Where jury heard prejudicial evidence of prior conviction, order of mistrial should have been entered, however judgment of acquittal barred any further proceeding. State v. Offet, 36 Or App 865, 585 P2d 765 (1978)

 

      In prosecution under this section, neither probable cause to arrest nor actual consent to breathalyzer use are questions for jury. State v. Hawk, 38 Or App 117, 589 P2d 1136 (1979), Sup Ct review denied

 

      In prosecution under this section where charging portion of complaint ended with phrase “in violation of state statute in such case made and provided” and defendant appeared with counsel at arraignment and demurred to complaint on ground it was not definite and certain because prior conviction on which state relied to raise offense to misdemeanor was not in charging portion of complaint as required by [former] ORS 484.380, complaint gave defendant reasonable notice of prior conviction on which state intended to rely and withstood demurrer. State v. Land, 38 Or App 127, 589 P2d 1141 (1979)

 

      Repeal of statute defining cocaine as a “narcotic drug” and substitution of Uniform Controlled Substances Act was not intended to eliminate from prosecutions under this section evidence that defendant had been driving under the influence of cocaine or to require state to establish that cocaine was “narcotic” or “dangerous drug.” State v. Gray, 40 Or App 799, 596 P2d 611 (1979)

 

      Attire of arresting officer is not element of crime of driving under influence of intoxicants and fact that arresting officer was not in uniform was not ground for reversal of conviction. State v. Gerttula, 41 Or App 675, 598 P2d 1257 (1979)

 

      In a prosecution for violation of this section, defendant could offer nonexpert testimony relating to symptoms of intoxication to impeach a breathalyzer test. State v. Clark, 286 Or 33, 593 P2d 123 (1979)

 

      On remand, charge of DUII properly dismissed due to inadvertent destruction of videotape of defendant’s performance of physical dexterity tests where evidence would have been material and favorable to defendant in rebutting breathalyzer results. State v. Smith, 42 Or App 543, 600 P2d 949 (1979)

 

      Since this section allows conviction for DUII only on basis of blood tests administered pursuant to [former] ORS 487.815, results of blood tests performed by person who did not have valid permit from Health Division were inadmissible. State v. Hilton, 49 Or App 927, 620 P2d 970 (1980), Sup Ct review denied

 

      Only fact of defendant’s refusal to take intoxilyzer test is admissible evidence, and any statements made by accused in conjunction with refusal are testimonial or communicative and admissible only under general Fifth Amendment principles. State v. Anderson, 53 Or App 246, 631 P2d 822 (1981)

 

      Where, at trial, arresting officer testified concerning defendant’s refusal to take intoxilyzer test and, during closing argument, prosecutor commented on refusal, prosecutor’s comment, if evidence of refusal was properly admitted, was proper. City of Portland v. Stanley, 53 Or App 254, 631 P2d 826 (1981), Sup Ct review denied

 

      Since Intoxilyzer determines a person’s blood-alcohol content by measuring alcohol content of the person’s breath, instrument accomplishes “chemical analysis of the breath” within the meaning of this section. State v. Dorsey, 58 Or App 521, 648 P2d 1304 (1982), Sup Ct review denied

 

      This section, making it unlawful for person with .10 percent blood-alcohol reading to drive, is not unconstitutionally vague. State v. Gainer, 70 Or App 199, 689 P2d 323 (1984)

 

      In investigating DUII offense, need to secure evidence might justify warrantless entry of home if state proves arresting officers could not obtain warrant before alcohol in suspect’s body dissipated. State v. Roberts, 75 Or App 292, 706 P2d 564 (1985)

 

      Fact that legislature has adopted certain percentage of alcohol in the blood as legally constituting being under influence of intoxicants is not relevant circumstantial evidence in civil case to show driver was visibly intoxicated. Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985)

 

      Driving under influence of intoxicants is strict liability crime and state need not prove culpable mental state and mental disease or defect cannot be defense. State v. Maguire, 78 Or App 459, 717 P2d 226 (1986), aff’d 303 Or 368, 736 P2d 193 (1987); State v. Bunch, 87 Or App 386, 742 P2d 74 (1987)

 

      This section did not require that defendant, hearing-impaired person, make voluntary and informed choice on decision to take or refuse test and, accordingly, it was not necessary that defendant understand statutory information before taking test. State v. Weishar, 78 Or App 468, 717 P2d 231 (1986), Sup Ct review denied

 

      DUII statute applies to bicyclists. State v. Woodruff, 81 Or App 484, 726 P2d 396 (1986), Sup Ct review denied

 

      Person who is steering and braking vehicle being towed is “driving” for purposes of former driving under influence of intoxicants statute. State v. Dean, 84 Or App 108, 733 P2d 105 (1987)

 

In general

 

      Legislature intended that separate sentences were permissible for driving under the influence of intoxicants and driving while suspended when they arise out of same driving episode. State v. Hale, 80 Or App 361, 722 P2d 1269 (1986)

 

      Because all chemical tests offered to prove DUII violation must comply with chemical analysis qualification and methodology requirements of ORS 813.160 to be admissible, trial court erred when it admitted hospital blood test drawn for diagnostic purposes. State v. Broyles, 94 Or App 334, 765 P2d 239 (1988)

 

      Because DUII is strict liability offense, defendant cannot assert defense of involuntary intoxication. State v. Miller, 95 Or App 439, 769 P2d 788 (1989), aff’d 309 Or 362, 788 P2d 974 (1990)

 

      Where Oregon Admission Act granted Oregon and Washington concurrent jurisdiction for offenses occurring on bridges that span Columbia River, state did not have to prove venue on conviction of defendant for driving under influence of intoxicants when stopped on bridge spanning Columbia River. State v. Nearing, 99 Or App 724, 784 P2d 121 (1989), Sup Ct review denied

 

      This section does not require state to present evidence that controlled substance was intoxicant and it is question for trier of fact whether controlled substance by itself or in combination with intoxicating liquor did in fact impair person such that person was “under the influence.” State v. Huck, 100 Or App 193, 785 P2d 785 (1990)

 

      In order to support giving of Miles instruction, state must present evidence that controlled substance made defendant more susceptible to effects of alcohol than he otherwise would have been. State v. Huck, 100 Or App 193, 785 P2d 785 (1990)

 

      It is not necessary under this section or implied consent law that person know they are under arrest for DUII only that person is, in fact, under arrest. Oviedo v. MVD, 102 Or App 110, 792 P2d 1244 (1990)

 

      Being under influence of intoxicant is strict liability element of driving under the influence of intoxicants and no proof is required of culpable mental state. State v. Miller, 309 Or 362, 788 P2d 974 (1990)

 

      Defense of guilty except for insanity is available to persons charged under this section. State v. Olmstead, 310 Or 455, 800 P2d 277 (1990)

 

      Three-year suspension under this section was appropriate where defendant committed first offense, became subject to diversion program, and, after diversion was terminated for second offense, defendant was convicted of both offenses simultaneously. State v. Kamali, 106 Or App 230, 806 P2d 728 (1991)

 

      “Driving” covers any operation, towing, pushing, movement or other propulsion of a motor vehicle, including conduct of passenger who grabs steering wheel. State v. Cruz, 121 Or App 241, 855 P2d 191 (1993)

 

      Officer had option to discard questionable breath analyzer printout card and request that driver retake test. State v. Galli, 125 Or App 218, 865 P2d 361 (1993)

 

      Neither state law nor federal due process requires jury to reach unanimous finding regarding which of three sets of circumstances described by statute applies in order to convict for DUII. State v. King 316 Or 437, 852 P2d 190 (1993)

 

      Where, inter alia, police officer informed defendant of Miranda rights, informed defendant that particular test was last one and referred to subsequent requested information as question, clear break existed between sobriety test and questioning. State v. Dill, 127 Or App 6, 870 P2d 851 (1994)

 

      Results of properly executed horizontal gaze nystagmus test are admissible to establish that defendant was under influence of intoxicating liquor, but not to show that blood alcohol content exceeded legal limit. State v. O’Key, 321 Or 285, 899 P2d 663 (1995)

 

      Only chemical test result may be used to establish blood alcohol content as part of state’s case in chief. State v. Ross, 147 Or App 634, 938 P2d 797 (1997)

 

      Charge of being under combined influence of alcohol and controlled substance is subject to requirement that influence of controlled substance be pleaded in accusatory instrument. State v. Stiles, 165 Or App 584, 998 P2d 703 (2000)

 

      Where state proceeds solely under theory of intoxication due to alcohol, court may not instruct jury that taking controlled substances is physical condition that can affect susceptibility to alcohol. State v. McFeron, 166 Or App 110, 999 P2d 470 (2000)

 

      Procedures and results of Drug Recognition Expert protocol are admissible to show defendant was under influence of controlled substance, provided qualified officer properly administered test and accurately recorded results. State v. Sampson, 167 Or App 489, 6 P3d 543 (2000), Sup Ct review denied

 

      Police have probable cause to conduct blood alcohol content analysis on driver suspected of being intoxicated notwithstanding that police believe source of driver intoxication is inhalant or controlled substance. State v. Burshia, 201 Or App 678, 120 P3d 487 (2005), Sup Ct review denied

 

      “Statutory counterpart” means statutes of other states that deal with narrow subject of driving while under influence of intoxicants rather than broader subject of using intoxicants and driving. State v. Ortiz, 202 Or App 695, 124 P3d 611 (2005)

 

      Where defendant is charged with felony, state must prove existence of predicate conviction beyond reasonable doubt, but validity of proven prior conviction is presumed. State v. Probst, 339 Or 612, 124 P3d 1237 (2005)

 

      Where person is convicted of third or subsequent offense under this section, sentencing person to term of imprisonment does not prevent court from imposing fine. State v. Eades, 208 Or App 173, 144 P3d 1003 (2006)

 

      Statute of another jurisdiction is “counterpart” to this section if statute and this section are remarkably similar or have same use, role or characteristics. State v. Mersman, 216 Or App 194, 172 P3d 654 (2007), Sup Ct review denied

 

      At trial, state may offer relevant evidence to explain how driver’s blood alcohol content at time of test shows that driver had .08 percent or more by weight of alcohol in bloodstream at time that driver was driving. State v. Eumana-Moranchel, 352 Or 1, 277 P3d 549 (2012)

 

      Minimal voluntary act requirement of ORS 161.095 (1) applies to driving element of DUII. State v. Newman, 353 Or 632, 302 P3d 435 (2013)

 

LAW REVIEW CITATIONS

 

Under former similar statute

 

      10 WLJ 12 (1973)

 

In general

 

      27 WLR 301 (1991)

 

      813.012

 

NOTES OF DECISIONS

 

      Use of prior convictions to elevate current offense to felony and to enhance defendant’s criminal history score does not constitute imposition of additional punishment for past offenses. State v. McCoin, 190 Or App 532, 79 P3d 342 (2003), Sup Ct review denied

 

      813.020

 

NOTES OF DECISIONS

 

      This section does not restrict trial court’s general sentencing power or court’s flexibility in fashioning suitable sentence, except that court must require defendant to spend at least 48 hours in jail. State v. Oary, 109 Or App 580, 820 P2d 857 (1991), as modified by 112 Or App 296, 829 P2d 90 (1992); State v. Taylor, 115 Or App 76, 836 P2d 755 (1992)

 

      813.095

 

NOTES OF DECISIONS

 

      Violation proceeding for refusal to take breath test is not criminal in nature for purposes of double jeopardy provision of section 12, Article I of Oregon Constitution. State v. Roeder, 209 Or App 199, 147 P3d 363 (2006), Sup Ct review denied

 

      813.100

 

      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)

 

      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)

 

LAW REVIEW CITATIONS

 

Under former similar statute

 

      19 WLR 807 (1983)

 

In general

 

      30 WLR 723 (1994); 48 WLR 521 (2012)

 

      813.120

 

      See also annotations under ORS 483.634 in permanent edition.

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 487.805)

 

      Statement whether officer had reasonable belief that person was under influence at time of request need not recite grounds for officer’s belief. Vaughn v. Motor Vehicles Div., 25 Or App 543, 550 P2d 477 (1976)

 

      Where report prepared pursuant to this section contained all the essential statements and declarations, fact that another officer later inserted additional statements in the report did not cause it to be legally insufficient to confer jurisdiction on Motor Vehicles Division. Lucas v. Motor Vehicles Division, 55 Or App 797, 639 P2d 1306 (1982), Sup Ct review denied

 

In general

 

      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)

 

LAW REVIEW CITATIONS

 

Under former similar statute (ORS 487.805)

 

      19 WLR 807 (1983)

 

      813.130

 

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)

 

      813.131

 

NOTES OF DECISIONS

 

      Quantitative testing is not required for urinalysis evidence to be admissible. State v. Fong, 226 Or App 493, 204 P3d 146 (2009), Sup Ct review denied

 

      Admissibility of urinalysis that complies with this section remains subject to foundational requirements for introduction of scientific evidence. State v. Tripathi, 226 Or App 552, 204 P3d 134 (2009)

 

      813.135

 

NOTES OF DECISIONS

 

      Because of protective procedures in this section and general circumstances of request to perform sobriety tests, request to perform sobriety test does not create inherently compelling circumstances for Miranda purposes. State v. Schaffer, 114 Or App 328, 835 P2d 134 (1992)

 

      Where police officer failed to inform defendant of consequences of refusing to perform sobriety tests and defendant performed test anyway, results of field sobriety test were admissible. State v. Trenary, 316 Or 172, 850 P2d 356 (1993)

 

      Because implied consent statute is invalid, officer is no longer required to issue warning concerning consequence of refusing test. State v. Maddux, 144 Or App 34, 925 P2d 124 (1996)

 

      Police officer may request voluntary consent to test based on less than probable cause. State v. Ramos, 149 Or App 269, 942 P2d 841 (1997)

 

LAW REVIEW CITATIONS: 74 OLR 697 (1995); 32 WLR 677 (1996)

 

      813.136

 

NOTES OF DECISIONS

 

      Forcing person to choose between self-incrimination through consent to field sobriety test and self-incrimination by inference through admission of evidence that person refused test violates constitutional prohibition against compelled self-incrimination. State v. Fish, 321 Or 48, 893 P2d 1023 (1995)

 

      Officer request that person take sobriety tests must specify tests to be given in order for refusal to be admissible. State v. Rohrs, 157 Or App 494, 970 P2d 262 (1998), aff’d 333 Or 397, 40 P3d 505 (2002)

 

LAW REVIEW CITATIONS: 32 WLR 677 (1996)

 

      813.140

 

NOTES OF DECISIONS

 

Under former similar statute

 

      As an alternative to a breath test, an arresting officer may request the arrested person to submit to a test of his blood, urine or saliva. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

 

      Introduction of a blood sample taken from an unconscious person when the police have probable cause to believe that person was driving under the influence of alcoholic liquor is not made inadmissible by anything in the Implied Consent Law. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

 

      A blood test cannot be compelled over the driver’s refusal. State v. Annen, 12 Or App 203, 504 P2d 1400 (1973), Sup Ct review denied

 

      This section did not preclude introduction into evidence of blood-alcohol test results from a test made by an investigating officer of blood taken by the hospital for treatment purposes, at a time when defendant’s condition was too serious for the investigating officer to interview him. State v. Enoch, 21 Or App 652, 536 P2d 460 (1975)

 

      Though state violated this section in taking defendant’s blood sample without obtaining consent of defendant or showing defendant incapable of consenting, suppression of evidence for such violation was not required where police had probable cause to seize blood and exigent circumstances excused failure to obtain search warrant. State v. Reddish, 78 Or App 219, 715 P2d 495 (1986)

 

      Where blood test was not requested by officer nor test performed at request of officer, this section was inapplicable. State v. Luttrell, 80 Or App 771, 723 P2d 1071 (1986)

 

In general

 

      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)

 

      Because prosecution for criminally negligent homicide was not prosecution for driving under influence of intoxicants, this section did not require exclusion of blood tests even though they were not obtained according to procedures set out in this section. State v. Milligan, 304 Or 659, 748 P2d 130 (1987)

 

      Absence of reading from breath test on Intoxilyzer checklist is not basis to suppress because its completion or lack of it had no bearing on performance of test or its accuracy as evidence. State v. Hemkin, 102 Or App 79, 792 P2d 483 (1990)

 

      “Expressly consents” means actually consents, therefore consent may be manifested by means other than verbalization. State v. Doran, 133 Or App 698, 893 P2d 569 (1995)

 

      813.150

 

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 .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)

 

      813.160

 

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

 

      813.200 to 813.270

 

NOTES OF DECISIONS

 

      Effect of defendant’s previous participation in diversion program is not affected by whether or not he acted on counsel’s advice. State v. Maynard, 85 Or App 631, 738 P2d 210 (1987), Sup Ct review denied

 

LAW REVIEW CITATIONS: 20 WLR 319 (1984)

 

      813.200

 

NOTES OF DECISIONS

 

      Defendant could not collaterally challenge prior counseled conviction as means of qualifying for diversion. State v. Boyer, 87 Or App 643, 743 P2d 1116 (1987)

 

      813.210

 

NOTES OF DECISIONS

 

Under former similar statute

 

      It was not error to require defendant to show that he was not disqualified because offense involved accident required to be reported before trial court decided whether to exercise discretion to grant diversion. State v. Dendurent, 64 Or App 575, 669 P2d 361 (1983), Sup Ct review denied

 

      This section does not violate Article I, Section 20 of the Oregon Constitution. State v. Dendurent, 64 Or App 575, 669 P2d 361 (1983), Sup Ct review denied

 

      Existence of prior conviction divests trial court of any discretion to allow diversion petition and of authority to consider whether prior conviction was valid. State ex rel Schrunk v. Bearden, 66 Or App 209, 673 P2d 585 (1983)

 

      Under this section, denial of diversion from criminal prosecution because of prior uncounseled conviction violates defendant’s federal Sixth Amendment right to counsel. City of Pendleton v. Standerfer, 297 Or 725, 688 P2d 68 (1984)

 

      Language of section, “[t]he present driving while under the influence of intoxicant offense” refers not to filing or hearing of petition for diversion, but to accident, which took place on date of commission of offense; context of entire section makes it clear that determinative date for all disqualification provisions is date of violation. State v. Ambrose, 74 Or App 59, 701 P2d 472 (1985), Sup Ct review denied

 

      Court should not have used conviction as basis for mandatory denial of diversion where record did not demonstrate that defendant voluntarily and intelligently waived right to counsel. State v. Winkler, 80 Or App 455, 722 P2d 59 (1986)

 

      813.215

 

NOTES OF DECISIONS

 

      Under this section, person who has participated in driving under influence diversion program in last 10 years is disqualified from another diversion even if previous program did not include drug or alcohol component. State v. Underwood, 91 Or App 668, 756 P2d 72 (1988), Sup Ct review denied

 

      Court should not have used conviction as basis for mandatory denial of diversion where there was complete absence of any evidence that defendant voluntarily and intelligently waived right to counsel at time of that conviction. State v. Manfredonia, 105 Or App 537, 805 P2d 738 (1991)

 

      Participation in “similar drug or alcohol rehabilitation program” includes program participation ordered for reasons other than DUII conviction. State v. Dunbrasky, 122 Or App 90, 856 P2d 1054 (1993); State v. Young, 196 Or App 708, 103 P3d 1180 (2004), Sup Ct review denied; State v. Lagrassa, 235 Or App 150, 230 P3d 96 (2010), Sup Ct review denied

 

      Drug or alcohol rehabilitation program may be “similar” to diversion program, notwithstanding that sanction avoided through attending rehabilitation program was not criminal in nature. State v. Wright, 204 Or App 724, 131 P3d 838 (2006)

 

      Person who holds, but is not qualified to use, commercial driver license is barred from entering diversion program. State v. Orueta, 343 Or 118, 164 P3d 267 (2007)

 

      Barring commercial drivers from entering diversion program available to noncommercial drivers does not violate constitutional guarantee of equal protection. State v. Orueta, 343 Or 118, 164 P3d 267 (2007)

 

      Statute of other jurisdiction may be “statutory counterpart” of Oregon statute for driving under influence of intoxicants if statutes share sufficient common uses, roles and characteristics, despite possible difference in substantive scope. State v. Rawleigh, 222 Or App 121, 192 P3d 292 (2008)

 

      Diversion program means all special and general conditions that, if satisfied, permit defendant to avoid conviction. State v. Ellis, 224 Or App 478, 199 P3d 359 (2008), Sup Ct review denied

 

      Participation in diversion or rehabilitation program requires interactive involvement with program. State v. Parker, 235 Or App 40, 230 P3d 55 (2010)

 

      Statutory counterpart to ORS 813.010 in another jurisdiction may include statutory offense involving impaired driving of vehicle due to use of intoxicating liquor or involving operation of vehicle while having impermissible blood alcohol content. State v. Donovan, 243 Or App 187, 256 P3d 196 (2011)

 

      813.220

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Trial court exceeded discretion in requiring plea of “guilty” or “no contest” as condition precedent to diversion agreement. Erickson v. Municipal Court Judge of City of Corvallis, 71 Or App 339, 692 P2d 628 (1984)

 

In general

 

      Where defendant did not see alcohol evaluation in period of over seven months between his arrest and trial, trial court did not abuse its discretion in denying defendant’s petition for diversion. State v. Thomas, 85 Or App 460, 737 P2d 143 (1987)

 

      Alcohol rehabilitation program that defendant undertakes on own initiative for purpose other than avoiding legal sanctions is not “similar” to driving under influence of intoxicants diversion program. State v. Warrington, 219 Or App 566, 184 P3d 1160 (2008)

 

      813.225

 

NOTES OF DECISIONS

 

      Hearing on petition to extend time for completion of diversion program is critical stage in criminal proceeding for which defendant has right to counsel. State v. Gaino, 210 Or App 107, 149 P3d 1229 (2006)

 

      813.250

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Trial court’s revocation of diversion agreement, which provided that defendant was not to use intoxicants while driving, was proper because defendant admitted that she had subsequently been arrested for drunk driving and had refused to take breath test. State v. Hunter, 67 Or App 783, 680 P2d 3 (1984)

 

      813.255

 

NOTES OF DECISIONS

 

      Failure to appear at hearing on termination of diversion agreement is failure to appear in connection with charge as described in ORS 162.195. State v. McCoin, 193 Or App 623, 91 P3d 760 (2004)

 

      Where defendant fails to comply fully with terms of diversion agreement, court may not dismiss charge or decline to revoke agreement. State v. Vargas-Garcia, 217 Or App 70, 174 P3d 1046 (2007)

 

      Failure to fully pay diversion filing fee is failure to fulfill terms of diversion agreement. State v. Reed, 241 Or App 47, 249 P3d 557 (2011), Sup Ct review denied

 

      813.300

 

NOTES OF DECISIONS

 

Under former similar statute

 

      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 required by [former] ORS 487.815, 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)

 

      Defendant may offer testimony of non-expert witness relating to any or all common signs of intoxication for purpose of attacking accuracy of blood alcohol test without first laying foundation by expert witness. State v. Clark, 286 Or 33, 593 P2d 123 (1979)

 

      In order for test results to determine blood alcohol level to be admissible under this section they must be performed by person with valid permit from Health Division. State v. Hilton, 49 Or App 927, 620 P2d 970 (1980), Sup Ct review denied

 

      Use of term “motor vehicle” in this section instead of “vehicle” used elsewhere in vehicles statutes did not preclude admission of breathalyzer test results where defendant was coasting vehicle down hill without engine running. State v. Fisher, 57 Or App 776, 646 P2d 652 (1982)

 

      Fact that legislature has adopted certain percentage of alcohol in the blood as legally constituting being under influence of intoxicants is not relevant circumstantial evidence in civil case to show driver was visibly intoxicated. Chartrand v. Coos Bay Tavern, 298 Or 689, 696 P2d 513 (1985)

 

In general

 

      Where, at hearing, police officer testified that all statutory and administrative requirements, including 15-minute pretest period had been met and trial judge was satisfied with proof except for failure of officer to testify to precise time when observation began and sample was taken, officer’s testimony that test was performed in accordance with such requirements was substantial evidence sufficient to support hearings officer’s orders. Andries v. MVD, 88 Or App 425, 745 P2d 809 (1987)

 

      813.320

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Breathalyzer test results were 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)

 

      A court may not prohibit the admission of blood tests performed by an individual who does not possess a permit from the Health Division in prosecutions for manslaughter under ORS 163.125 when the evidence is otherwise competent and relevant. State v. Heintz, 286 Or 239, 594 P2d 385 (1979)

 

      Blood test inadmissible on DUII charge is nonetheless admissible on assault charge under this section; proper remedy to avoid prejudice is motion for separate trial, not premature exclusion of evidence. State v. Armenta, 74 Or App 219, 702 P2d 1113 (1985)

 

In general

 

      Where defendant is hospitalized or receiving medical care, state is not required to demonstrate that blood test results otherwise competent as evidence were obtained in compliance with ORS 813.160. State v. Snyder, 337 Or 410, 97 P3d 1181 (2004)

 

      State is not obligated to produce evidence of scientific validity of process or principles used in blood alcohol testing conducted as part of medical care. State v. Helgeson, 220 Or App 285, 185 P3d 545 (2008)

 

      813.326

 

NOTES OF DECISIONS

 

      On indictment, state must plead only existence of prior convictions, not specifics of prior convictions. State v. Molver, 233 Or App 239, 225 P3d 136 (2010), Sup Ct review denied

 

      813.400

 

NOTES OF DECISIONS

 

Under former similar statute

 

      Court’s failure to advise defendant that pleading guilty to driving under influence of intoxicants would result in prolonged license suspension on subsequent conviction for same offense within five years did not violate constitutional rights. Chapel v. State of Oregon, 71 Or App 49, 691 P2d 514 (1984)

 

      Where defendant had 30 days’ notice of right to presuspension hearing, suspension was sufficient bases for subsequent conviction for driving while suspended. State v. Miller, 75 Or App 282, 706 P2d 184 (1985)

 

In general

 

      Suspension of petitioner’s driver license under this section was proper where records showed that petitioner was convicted in California of offense that would constitute driving under influence of intoxicants under Oregon law. Wilcox v. MVD, 89 Or App 498, 750 P2d 181 (1988)

 

      Where conviction in another state for driving under influence of intoxicants is set aside upon successful completion of diversion program, driving privileges remain subject to suspension in Oregon because of conviction. Dyrdahl v. DMV, 204 Or App 509, 131 P3d 770 (2006)

 

      813.410

 

NOTES OF DECISIONS

 

Under former similar statute (ORS 482.540)

 

      The request to consult a lawyer before taking a breathalyzer test constitutes a refusal under this statute. Lundquist v. Motor Vehicles Div., 23 Or App 507, 543 P2d 29 (1975)

 

Under former similar statute (ORS 482.541)

 

      Under this section, review of suspension order was limited to whether officers had reasonable grounds to believe that petitioner was driving, rather than whether petitioner was actually driving while under influence of intoxicants. Leabo v. State ex rel Motor Vehicles Div., 46 Or App 55, 610 P2d 317 (1980), Sup Ct review denied

 

      Existence of probable cause to arrest for violation of ORS 813.010 is not determinative under this section, 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)

 

      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

 

      Unreasonable delay of petitioner before responding to requests to take intoxication test amounted to refusal and Motor Vehicles Division was justified in suspending license. Luth v. Motor Vehicles Division, 87 Or App 137, 741 P2d 897 (1987)

 

      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)

 

      [Former] ORS 41.130 (res judicata, collateral estoppel) is inapplicable to procedure under this section for suspension of license as administrative hearing is not court and hearings officer in executive branch agency is not judge. State v. Ratliff, 304 Or 254, 744 P2d 247 (1987)

 

Under former similar statute (ORS 482.560)

 

      This section does not require responsive pleading by Division, although court may permit a response. Fiala v. Motor Vehicles Division, 30 Or App 589, 567 P2d 603 (1977)

 

In general

 

      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)

 

      In implied consent hearing, validity of driver’s arrest for DUII must be considered only if driver raises issue during evidentiary part of hearing and where driver did not request consideration of validity of arrest until closing argument, license was validly suspended. Bish v. MVD, 97 Or App 648, 776 P2d 1320 (1989); Crawford v. MVD, 98 Or App 354, 779 P2d 196 (1989), Sup Ct review denied

 

      Petitioner’s response to request to take breath test of “No, not without the advice of an attorney” constituted refusal. Schrier v. MVD, 99 Or App 209, 781 P2d 1226 (1989)

 

      Motor Vehicles Division must consider defense, if raised, that licensee was not driving before it may suspend licensee’s license. Hilton v. MVD, 308 Or 150, 775 P2d 1378 (1989)

 

      Respondent’s driving in early morning and twice crossing over fog line gave officer basis for reasonable suspicion that respondent was driving under influence of intoxicants. Fischer v. MVD, 101 Or App 580, 792 P2d 445 (1990)

 

      Under this section or implied consent law, person need only know that person is under arrest, not that person is under arrest for DUII. Oviedo v. MVD, 102 Or App 110, 792 P2d 1244 (1990)

 

      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)

 

      Unreasonable delay of petitioner before responding to requests to take intoxication test amounted to refusal. Ranger v. MVD, 122 Or App 141, 856 P2d 1050 (1993)

 

      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)

 

      Reasonable basis for suspecting that infraction has occurred is sufficient to permit stop. State v. Matthews, 126 Or App 154, 868 P2d 14 (1994), aff’d 320 Or 398, 884 P2d 1224 (1994)

 

      Whether test “disclosed” unlawful level of blood alcohol is determined by numeric readout of breath testing machine; therefore accuracy of machine is not in issue at license suspension hearing. Owens v. MVD, 319 Or 259, 875 P2d 463 (1994)

 

      Evidence disputing accuracy of properly performed breath test is not admissible at hearing. Lawrie v. MVD, 134 Or App 575, 895 P2d 790 (1995)

 

      Where evidence does not directly establish that officer believed that traffic infraction had occurred, hearings officer may not infer belief from other facts presented. Pomerenke v. MVD, 134 Or App 630, 896 P2d 1214 (1995), Sup Ct review denied

 

      Substantial compliance of police report with ORS 813.120 is jurisdictional prerequisite to license suspension. Coulter v. DMV, 168 Or App 442, 4 P3d 89 (2000)

 

      “Final order” means post-hearing order that imposes suspension or declares suspension invalid. Grossman v. DMV, 183 Or App 623, 54 P3d 629 (2002)

 

      Request for new hearing does not toll time for seeking review of final order. Grossman v. DMV, 183 Or App 623, 54 P3d 629 (2002)

 

      Petitioner claiming lack of opportunity to communicate with counsel or others has burden of proving restriction placed on ability to communicate was unreasonable. Brown v. DMV, 219 Or App 607, 185 P3d 459 (2008), Sup Ct review denied

 

      List of prerequisites for valid suspension of license is not exclusive. Hays v. DMV, 228 Or App 689, 209 P3d 405 (2009)

 

LAW REVIEW CITATIONS

 

In general

 

      30 WLR 723 (1994)

 

      813.440

 

NOTES OF DECISIONS

 

      “Official duty conflicts” of officer includes only offical duties that require officer’s presence elsewhere and prevent attendance at hearing. Blaisdell v. Motor Vehicles Division, 145 Or App 468, 929 P2d 1073 (1996)

 

      “Illness” means unhealthy condition of body or mind that impedes person who is to attend hearing. Walker v. DMV, 254 Or App 543, 295 P3d 167 (2013)

 

      813.450

 

NOTES OF DECISIONS

 

      Appeal from order suspending driver license for refusal to take breath test is not subject to Administrative Procedures Act and review de novo by circuit court was improper. Arrien v. MVD, 88 Or App 172, 744 P2d 595 (1987)

 

      Substantial evidence supported hearings officer’s determination that petitioner did not need to urinate so badly as to render involuntary his decisions not to take breath test and not to contact attorney. Shakerin v. MVD, 101 Or App 357, 790 P2d 1180 (1990)

 

      Scope of review of Motor Vehicle Division’s order by trial court and by Court of Appeals is whether order is supported by substantial evidence in record. Oviedo v. MVD, 102 Or App 110, 792 P2d 1244 (1990)