2015 ORS 813.140¹
Chemical test with consent
  • unconscious person

Nothing in ORS 813.100 (Implied consent to breath or blood test) is intended to preclude the administration of a chemical test described in this section. A police officer may obtain a chemical test of the breath or blood to determine the amount of alcohol in any person’s blood or a test of the person’s blood or urine, or both, to determine the presence of a controlled substance or an inhalant in the person as provided in the following:

(1) If, when requested by a police officer, the person expressly consents to such a test.

(2) Notwithstanding subsection (1) of this section, from a person without the person’s consent if:

(a) The police officer has probable cause to believe that the person was driving while under the influence of intoxicants and that evidence of the offense will be found in the person’s blood or urine; and

(b) The person is unconscious or otherwise in a condition rendering the person incapable of expressly consenting to the test or tests requested. [1983 c.338 §593; 1985 c.16 §299; 1999 c.619 §11; 2013 c.642 §2]

Notes of Decisions

Under Former Similar Statute

As an alternative to a breath test, an arresting of­fi­cer may request the arrested per­son to submit to a test of his blood, urine or saliva. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

Introduc­tion of a blood sample taken from an unconscious per­son when the police have probable cause to believe that per­son was driving under the influence of alcoholic liquor is not made inadmissible by anything in the Implied Consent Law. State v. Greenough, 7 Or App 520, 491 P2d 630 (1971), Sup Ct review denied

A blood test cannot be compelled over the driver's refusal. State v. Annen, 12 Or App 203, 504 P2d 1400 (1973), Sup Ct review denied

This sec­tion did not preclude introduc­tion into evidence of blood-alcohol test results from a test made by an investigating of­fi­cer of blood taken by the hospital for treat­ment purposes, at a time when defendant's condi­tion was too serious for the investigating of­fi­cer to interview him. State v. Enoch, 21 Or App 652, 536 P2d 460 (1975)

Though state violated this sec­tion in taking defendant's blood sample without obtaining con­sent of defendant or showing defendant incapable of con­senting, suppression of evidence for such viola­tion was not re­quired where police had probable cause to seize blood and exigent circumstances excused failure to obtain search warrant. State v. Reddish, 78 Or App 219, 715 P2d 495 (1986)

Where blood test was not requested by of­fi­cer nor test performed at request of of­fi­cer, this sec­tion was inapplicable. State v. Luttrell, 80 Or App 771, 723 P2d 1071 (1986)

In General

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)

Because pros­e­cu­­tion for crim­i­nally neg­li­gent hom­i­cide was not pros­e­cu­­tion for driving under influence of intoxicants, this sec­tion did not require exclusion of blood tests even though they were not obtained according to pro­ce­dures set out in this sec­tion. State v. Milligan, 304 Or 659, 748 P2d 130 (1987)

Absence of reading from breath test on Intoxilyzer checklist is not basis to suppress because its comple­tion or lack of it had no bearing on performance of test or its accuracy as evidence. State v. Hemkin, 102 Or App 79, 792 P2d 483 (1990)

"Expressly con­sents" means actually con­sents, therefore con­sent may be manifested by means other than verbaliza­tion. State v. Doran, 133 Or App 698, 893 P2d 569 (1995)


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.