ORS 813.010¹
Driving under the influence of intoxicants
  • penalty

(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

(a) Has 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 of the person made under ORS 813.100 (Implied consent to breath or blood test), 813.140 (Chemical test with consent) or 813.150 (Chemical test at request of arrested person);

(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or

(c) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.

(2) A person may not be convicted of driving while under the influence of intoxicants on the basis of being under the influence of a controlled substance or an inhalant unless the fact that the person was under the influence of a controlled substance or an inhalant is pleaded in the accusatory instrument and is either proved at trial or is admitted by the person through a guilty plea.

(3) A person convicted of the offense described in this section is subject to ORS 813.020 (Fee to be paid on conviction) in addition to this section.

(4) Except as provided in subsection (5) of this section, the offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any premises open to the public.

(5)(a) Driving while under the influence of intoxicants is a Class C felony if the current offense was committed in a motor vehicle and the defendant has been convicted, at least three times in the 10 years prior to the date of the current offense, of any of the following offenses in any combination:

(A) Driving while under the influence of intoxicants in violation of:

(i) This section; or

(ii) The statutory counterpart to this section in another jurisdiction.

(B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicating liquor, a controlled substance, an inhalant or any combination thereof.

(C) A driving offense in another jurisdiction that involved operating a vehicle, an aircraft or a boat while having a blood alcohol content above that jurisdiction’s permissible blood alcohol content.

(b) For the purposes of paragraph (a) of this subsection, a conviction for a driving offense in another jurisdiction based solely on a person under 21 years of age having a blood alcohol content that is lower than the permissible blood alcohol content in that jurisdiction for a person 21 years of age or older does not constitute a prior conviction.

(6) In addition to any other sentence that may be imposed, the court shall impose a fine on a person convicted of driving while under the influence of intoxicants as follows:

(a) For a person’s first conviction, a minimum of $1,000.

(b) For a person’s second conviction, a minimum of $1,500.

(c) For a person’s third or subsequent conviction, a minimum of $2,000 if the person is not sentenced to a term of imprisonment.

(7) Notwithstanding ORS 161.635 (Fines for misdemeanors), $10,000 is the maximum fine that a court may impose on a person convicted of driving while under the influence of intoxicants if:

(a) The current offense was committed in a motor vehicle; and

(b) There was a passenger in the motor vehicle who was under 18 years of age and was at least three years younger than the person driving the motor vehicle. [1983 c.338 §587; 1985 c.16 §293; 1987 c.138 §5; 1991 c.835 §7; 1999 c.619 §3; 1999 c.1049 §1; 2003 c.14 §495; 2003 c.445 §1; 2007 c.879 §3]

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 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 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 (Methods of conducting chemical analyses) 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)

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)

"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, 317 Or 241, 855 P2d 191 (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)

Law Review Cita­tions

Under Former Similar Statute

10 WLJ 12 (1973)

In General

27 WLR 301 (1991)

1 Legislative Counsel Committee, CHAPTER 813—Driving Under the Influence of Intoxicants, https://­www.­oregonlegislature.­gov/­bills_laws/­Archive/­2007ors813.­pdf (2007) (last ac­cessed Feb. 12, 2009).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2007, Chapter 813, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­813ano.­htm (2007) (last ac­cessed Feb. 12, 2009).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent. Currency Information