2015 ORS 813.130¹
Rights of and consequences for person asked to take test

This section establishes the requirements for information about rights and consequences for purposes of ORS 813.100 (Implied consent to breath or blood test) and 813.410 (Suspension upon receipt of police report on implied consent test). The following apply to the information about rights and consequences:

(1) The information about rights and consequences shall be substantially in the form prepared by the Department of Transportation. The department may establish any form it determines appropriate and convenient.

(2) The information about rights and consequences shall be substantially as follows:

(a) Driving under the influence of intoxicants is a crime in Oregon, and the person is subject to criminal penalties if a test under ORS 813.100 (Implied consent to breath or blood test) shows that the person is under the influence of intoxicants. If the person refuses a test or fails, evidence of the refusal or failure may also be offered against the person.

(b) The person will fail a test under ORS 813.100 (Implied consent to breath or blood test) for purposes of criminal penalties if the test discloses a blood alcohol content of 0.08 percent or more by weight. The person will fail a test for purposes of the Motorist Implied Consent Law if the test discloses a blood alcohol content of:

(A) 0.08 percent or more by weight if the person was not driving a commercial motor vehicle;

(B) 0.04 percent or more by weight if the person was driving a commercial motor vehicle; or

(C) Any amount if the person was under 21 years of age.

(c) If the person refuses or fails a test under ORS 813.100 (Implied consent to breath or blood test), the person’s driving privileges will be suspended. The outcome of a criminal charge for driving under the influence of intoxicants will not affect the suspension. The suspension will be substantially longer if the person refuses a test.

(d) If the person refuses a test or fails a breath test under ORS 813.100 (Implied consent to breath or blood test) and has an Oregon driver license or permit, the license or permit will be taken immediately and, unless the person does not currently have full valid driving privileges, a temporary driving permit will be issued to the person.

(e) If the person refuses a test under ORS 813.100 (Implied consent to breath or blood test), the person is not eligible for a hardship permit for at least 90 days, and possibly for three years, depending on the following factors set forth in ORS 813.430 (Grounds for increase in duration of suspension):

(A) Whether the person is presently participating in a driving while under the influence of intoxicants diversion program in this state or in any similar alcohol or drug rehabilitation program in this or another jurisdiction; or

(B) Whether within the five years preceding the date of arrest any of the following occurred:

(i) A suspension of the person’s driving privileges under ORS 813.410 (Suspension upon receipt of police report on implied consent test) or 482.540 (1981 Replacement Part) became effective;

(ii) The person was convicted of driving while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) or the statutory counterpart to ORS 813.010 (Driving under the influence of intoxicants) in another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension);

(iii) The person was convicted of driving while under the influence of intoxicants in violation of a municipal ordinance in this state or another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension); or

(iv) The person commenced participating in a driving while under the influence of intoxicants diversion program in this state or in any similar alcohol or drug rehabilitation program in this or another jurisdiction, as described in ORS 813.430 (Grounds for increase in duration of suspension).

(f) If the person refuses a breath test under ORS 813.100 (Implied consent to breath or blood test), or refuses a urine test under ORS 813.131 (Implied consent to urine test) and 813.132 (Consequences of refusing to take urine test), the person is subject to a fine of at least $500 and not more than $1,000.

(g) After taking a test under ORS 813.100 (Implied consent to breath or blood test), the person will have a reasonable opportunity, upon request, for an additional chemical test for blood alcohol content to be performed at the person’s own expense by a qualified individual of the person’s choosing.

(h) The person has a right to a hearing to challenge the validity of the suspension before the suspension becomes effective. The person must make a written request to the department for such a hearing. If the person wins at the hearing, the person’s driving privileges will not be suspended. If the person loses at the hearing, the suspension will remain in effect during any court review of the hearing.

(i) If the person is issued a temporary driving permit under ORS 813.100 (Implied consent to breath or blood test), the information provided to the person shall include the number of hours before the driving permit will be effective and the number of days the permit will be effective.

(j) The information provided to the person shall include the number of days within which a person must request a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test).

(k) The information provided to the person shall include the number of days within which a hearing under ORS 813.410 (Suspension upon receipt of police report on implied consent test) will be held.

(L) The person may possibly qualify for a hardship permit in 30 days if the person fails a test, depending on the person’s driving record.

(3) If the person is driving a commercial motor vehicle, the information about rights and consequences shall include, in addition to the provisions of subsection (2) of this section, substantially the following:

(a) If the person refuses a test under ORS 813.100 (Implied consent to breath or blood test) or submits to a breath or blood test and the level of alcohol in the person’s blood is 0.04 percent or more by weight, the person’s commercial driving privileges or right to apply for commercial driving privileges will be suspended and no hardship permit authorizing the person to drive a commercial motor vehicle will be issued. The suspension will be substantially longer if the person refuses a test.

(b) The suspension of the person’s commercial driving privileges or right to apply for commercial driving privileges will be for the person’s lifetime if the person refuses a test under ORS 813.100 (Implied consent to breath or blood test) or submits to a breath or blood test and the level of alcohol in the person’s blood is 0.04 percent or more by weight and:

(A) The person previously has been convicted of failure to perform the duties of a driver;

(B) The person previously has been convicted of a crime punishable as a felony and the person was driving a motor vehicle at the time the offense was committed;

(C) The person previously has been convicted of driving a commercial motor vehicle while the person’s commercial driving privileges or right to apply for commercial driving privileges was suspended or revoked for offenses committed while operating a commercial motor vehicle;

(D) The person previously has been convicted of any degree of murder, manslaughter or criminally negligent homicide resulting from the operation of a commercial motor vehicle or assault in the first degree resulting from the operation of a commercial motor vehicle;

(E) The person previously has been convicted of driving while under the influence of intoxicants;

(F) The person’s commercial driving privileges previously have been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test); or

(G) The person’s right to apply for commercial driving privileges previously has been suspended or revoked for refusal to submit to, or failure of, a breath or blood test under ORS 813.100 (Implied consent to breath or blood test) resulting from the operation of a commercial motor vehicle.

(4) Nothing in this section prohibits the department from providing additional information concerning rights and consequences that the department considers convenient or appropriate. [1985 c.672 §22; 1987 c.673 §3; 1987 c.801 §11; 1989 c.171 §92; 1989 c.636 §43; 1991 c.185 §15; 1991 c.860 §10; 1993 c.305 §4; 1995 c.568 §4; 2003 c.814 §3; 2005 c.649 §28; 2009 c.607 §2; 2009 c.614 §2; 2013 c.237 §27]

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)

  • 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. . . .”

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.