2015 ORS 813.100¹
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) No chemical test of the person’s breath or blood shall be given, under subsection (1) of this section, to a person under arrest 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, if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of consequences and rights as described under ORS 813.130 (Rights of and consequences for person asked to take test).

(3) If a person refuses to take 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), 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.

(4) 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.

(5) 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]

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 (Effect of implied consent law on evidence) 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)

  • Pete Castleberry, Sep 21, 2011
    “. . . one of the most frequently asked ques­tions is whether failing a breath test by blowing over the legal limit of .08% automatically means you are guilty of an Oregon DUII. First of all, nothing ever means an automatic guilty verdict. . . .”
  • Pete Castleberry, Sep 12, 2011
    “If you fail or refuse a breath test, the police will confiscate your driver's license and give you a yellow Implied Consent Suspension Form. . . .”

1 Legislative Counsel Committee, CHAPTER 813—Driving Under the Influence of Intoxicants, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors813.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 813, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano813.­html (2015) (last ac­cessed Jul. 16, 2016).
 
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.