ORS 813.160
Methods of conducting chemical analyses

  • duties of Department of State Police
  • reports
  • costs

(1)

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

(a)

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

(A)

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

(B)

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

(C)

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

(b)

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

(A)

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

(B)

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

(C)

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

(D)

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

(E)

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

(2)

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

(3)

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

(4)

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

(5)

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

Source: Section 813.160 — Methods of conducting chemical analyses; duties of Department of State Police; reports; costs, https://www.­oregonlegislature.­gov/bills_laws/ors/ors813.­html.

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

813.010
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
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