ORS 813.100
Implied consent to breath or blood test

  • confiscation of license upon refusal or failure of test

(1)

Any person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person’s breath, or of the person’s blood if the person is receiving medical care in a health care facility immediately after a motor vehicle accident, for the purpose of determining the alcoholic content of the person’s blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or of a municipal ordinance. A test shall be administered upon the request of a police officer having reasonable grounds to believe the person arrested to have been driving while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or of a municipal ordinance. Before the test is administered the person requested to take the test shall be informed of consequences and rights as described under ORS 813.130 (Rights of and consequences for person asked to take test).

(2)

If a person refuses to submit to a test under this section or if a breath test under this section discloses that the person, at the time of the test, had a level of alcohol in the person’s blood that constitutes being under the influence of intoxicating liquor under ORS 813.300 (Use of blood alcohol percentage as evidence) and the person has been informed of rights and consequences as provided under ORS 813.130 (Rights of and consequences for person asked to take test), the person’s driving privileges are subject to suspension under ORS 813.410 (Suspension upon receipt of police report on implied consent test) and the police officer shall do all of the following:

(a)

Immediately take custody of any driver license or permit issued by this state to the person to grant driving privileges.

(b)

Provide the person with a written notice of intent to suspend, on forms prepared and provided by the Department of Transportation. The written notice shall inform the person of consequences and rights as described under ORS 813.130 (Rights of and consequences for person asked to take test).

(c)

If the person qualifies under ORS 813.110 (Temporary permit upon confiscation of license), issue to the person, on behalf of the department, a temporary driving permit described under ORS 813.110 (Temporary permit upon confiscation of license).

(d)

Within a period of time required by the department by rule, report action taken under this section to the department and prepare and cause to be delivered to the department a report as described in ORS 813.120 (Police report to department), along with the confiscated license or permit and a copy of the notice of intent to suspend.

(3)

If a blood test under this section discloses that the person, at the time of the test, had a level of alcohol in the person’s blood that constitutes being under the influence of intoxicating liquor under ORS 813.300 (Use of blood alcohol percentage as evidence), the person’s driving privileges are subject to suspension under ORS 813.410 (Suspension upon receipt of police report on implied consent test) and the police officer shall report to the department within 45 days of the date of arrest that the person failed the blood test.

(4)

Nothing in this section precludes a police officer from obtaining a chemical test of the person’s breath or blood through any lawful means for use as evidence in a criminal or civil proceeding including, but not limited to, obtaining a search warrant. [1983 c.338 §591; 1985 c.16 §298; 1985 c.672 §19; 1993 c.305 §1; 1995 c.568 §1; 2013 c.642 §1; 2019 c.475 §1]

Source: Section 813.100 — Implied consent to breath or blood test; confiscation of license upon refusal or failure of test, https://www.­oregonlegislature.­gov/bills_laws/ors/ors813.­html.

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). But see Murdoch v. DMV, 311 Or App 386, 492 P3d 89 (2021), Sup Ct review allowed

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)

Defendant is entitled to suppression of evidence from breath test that immediately followed custodial interrogation when interrogation continued in violation of Art. I, Section 12. State v. Swan, 363 Or 121, 420 P3d 9 (2018)

Requirement that person be informed of “rights and consequences” before chemical test is “administered” does not mean that officer must inform person of rights prior to requesting that person takes test. Murdoch v. DMV, 311 Or App 386, 492 P3d 89 (2021), Sup Ct review allowed

Law Review Citations

Under former similar statute

19 WLR 807 (1983)

In general

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

813.010
Driving under the influence of intoxicants
813.011
Felony driving under the influence of intoxicants
813.012
Crime classification for purposes of rules of Oregon Criminal Justice Commission
813.017
Arraignment
813.020
Fee to be paid on conviction
813.021
Requirements for screening interview and treatment program
813.022
Proof of treatment
813.023
Alternative payment methods for screening interview or treatment program
813.025
Designation of agency to perform screening interview and treatment program
813.030
Amount of fee
813.040
Standards for determination of problem condition involving alcohol, inhalants or controlled substances
813.050
Out-of-service orders for operators of commercial motor vehicles
813.055
Civil penalty for violation of out-of-service order or notice
813.095
Offense of refusal to take a test for intoxicants
813.100
Implied consent to breath or blood test
813.110
Temporary permit upon confiscation of license
813.120
Police report to department
813.130
Rights of and consequences for person asked to take test
813.131
Implied consent to urine test
813.132
Consequences of refusing to take urine test
813.135
Implied consent to field sobriety tests
813.136
Consequence of refusal or failure to submit to field sobriety tests
813.140
Chemical test with consent
813.150
Chemical test at request of arrested person
813.160
Methods of conducting chemical analyses
813.170
Plea agreement prohibited
813.200
Notice of availability of diversion
813.210
Petition
813.215
Eligibility for diversion
813.220
Matters to be considered by court in determining to allow diversion agreement
813.222
Right of victim to be present at hearing
813.225
Petition for extension of diversion period
813.230
Diversion agreement
813.233
Exemption from completing treatment program in this state
813.235
Attendance at victim impact treatment session as condition of diversion
813.240
Amount and distribution of filing fee
813.245
Booking
813.250
Motion to dismiss charge on completion of diversion
813.252
Motion to dismiss charge when minimal fine amount remains
813.255
Termination of diversion
813.260
Designation of agencies to perform screening interviews
813.270
Intoxicated Driver Program Fund
813.300
Use of blood alcohol percentage as evidence
813.310
Refusal to take chemical test admissible as evidence
813.320
Effect of implied consent law on evidence
813.322
Department of State Police rules regarding breath tests as evidence
813.324
Use of testimony from implied consent hearing as evidence in prosecution
813.326
Felony driving while under the influence of intoxicants
813.328
Notice of intent to challenge validity of prior convictions
813.400
Suspension or revocation upon conviction
813.410
Suspension upon receipt of police report on implied consent test
813.412
Role of police officer in implied consent hearing
813.420
Duration of suspension for refusal or failure of test
813.430
Grounds for increase in duration of suspension
813.440
Grounds for hearing on validity of suspension
813.450
Appeal from suspension for refusal or failure of breath test
813.460
Department procedures upon verification of suspension of driving privileges of wrong person
813.470
Department notation on record of person acquitted after suspension
813.520
Limitations on authority to issue hardship permit or reinstate driving privileges
813.599
Definitions
813.600
Ignition interlock program
813.602
Circumstances under which ignition interlock device required
813.603
Waiver of costs of ignition interlock device
813.604
Notice of court order
813.606
Exception for employee otherwise required to have device
813.608
Knowingly furnishing motor vehicle without ignition interlock device
813.610
Soliciting another to blow into ignition interlock device
813.612
Unlawfully blowing into ignition interlock device
813.614
Tampering with ignition interlock device
813.616
Use of certain moneys to pay for ignition interlock program
813.620
Suspension of driving privileges for failing to provide proof of device installation or for tampering with device
813.630
Notice of ignition interlock device installation and negative reports
813.635
Consequence for negative reports generated from ignition interlock device
813.640
Additional treatment following negative reports
813.645
Motion to vacate requirement to install and use ignition interlock device
813.660
Service center and manufacturer’s representative certification
813.665
Criminal background check for technicians
813.670
Complaint process
813.680
Ignition Interlock Device Management Fund
Green check means up to date. Up to date