How To Edit

Step 1: Become an editor. To receive editing abilities, if you don't already have them, email Alex at abassos@gmail.com. Just put "make me an editor" in the subject line and put your OCDLA username in the body of the email. Step 2: Click an edit button. In order to edit, you may either click the edit button toward the top of the page (between Read and View History). Or you can click the edit button to the right of each section. If you're new to editing, you should probably edit an individual section, rather than the whole page.

Click "edit" on any section of this page to see what it looks like in edit mode.

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For more complex formatting information See Mediawiki Images

At some point, legal pages will be filled with both case summaries and resources like articles, motions, materials, seminars, etc.. Cases and resources should all be placed in the section that is most specific to the case or resource. It is okay to put cases or resources in multiple places. The formatting should look like the "Blood Alcohol Content" section of the DUII page:

• 6/15/2010 | Retrograde Extrapolation | Mike Saltzman
• FST Manuals
• Intoxilyzer 8000 Operator's Guide

Retrograde Extrapolation is Admissible

The Oregon Supreme Court explicitly finds that an expert may project backwards from blood alcohol content at the time of a breath or blood test to the likely blood alcohol content at the time of driving. I.e., testify about the rate of dissipation in what is commonly known as retrograde extrapolation. Allowing such testimony is consistent with the requirement that the state establish .08% BAC or greater because the relevant point in time for the BAC is the time of driving, not the time of the test. In this case, the state used a BAC of .064 plus expert testimony to prove that defendant had a BAC of .08 or more at the time of driving. State v Eumana-Moranchel(2012)

Breath Test Refusal Admissible at Trial Even if Warnings Aren't Understood

When arrested for DUII, a defendant is properly “informed” of the consequences of refusal to take a breath test if the arresting officer complies with the requirement to read the rights and consequences substantially as set out in ORS 813.130. Here, even though the defendant had a “weak” command of the English language and the officer “noticed a language barrier in his communication with the defendant,” the defendant’s refusal was admissible. The state does not have to establish that the defendant fully understood the information. State v Cabanilla (March, 2012)

Warrantless Breath Test – Machuca

The court remands to the trial court to determine whether this is one of the “rare cases” that would require a search warrant prior to a breath test for DUII. The Supreme Court in Machuca set the standard for such a rare case: 'where a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances.” The court suggests that this might be one of those rare cases and gives a hypothetical to illustrate what would clearly be a situation requiring a warrant:

"An officer stops and arrests a motorist for DUII on a highway in a remote area of central or eastern Oregon, miles from the nearest town (and tow truck). The officer cannot transport the suspect to the stationhouse for a breath test until the tow truck arrives to remove the suspect’s vehicle– which will take well over an hour. So it will take at least two hours before the breath test can be administered. Although the officer may be engaged during some of that time (e.g., inventorying the vehicle), there will be a significant amount of time that the officer is not otherwise engaged and is simply waiting for the tow truck. Assume further that therecord establishes that a reasonably objective officer knows that he or she can generally obtain a telephonic warrant in 30 minutes and that, thus, in the hypothetical circumstance, the warrant would be waiting by the time that the officer and suspect arrive at the stationhouse. Under such circumstances, the 'rare case' exception would apply." State v. Martinez-Alvarez, 245 Or App 369 (2011)

Exigent Circumstances – Rare Case per Machuca

Where there was only 58 minutes between DUII arrest and breath test and the testimony established that it would take at least 90 minutes to obtain a warrant, the evidence established that exigent circumstances existed. Stated in the inverse, the evidence did not establish that this is one of the rare cases, referred to in Machuca, in which it would be significantly faster to obtain a warrant than the process used in this case. State v. Amos

Right to Counsel

Oregon law does not require police to ask for a breath test before giving the suspect an opportunity to contact counsel, as long as the suspect knows that a breath test is imminent. Further, an equivocal request for counsel triggers an officer’s duty to ask follow up questions and inform the defendant of his right to counsel only when it appears that the officer intends to remain in the room with the defendant. Finally, the court rejected the idea that leaving the door ajar while the defendant tried to contact counsel did not give him an adequate opportunity for private counsel, since he in fact was not able to reach his lawyer. State v. Robinson , 244 Or App 368 (2011)

Intoxilyzer Malfunction – When a Card is Complete

An intoxilyzer printout is complete for the purposes of ORS 813.160(1)(b) and OAR 257-030-0070(4) if it reflects results for all the testing steps, even if the card has problems printing. An officer is not required to follow the protocol for incomplete cards solely because there is a printing issue. State v. Roberts, 241 Or App 489 (2011)

Opportunity to Seek Advice of Counsel

The state concedes that the trial court erred in denying defendant’s motion to suppress a breath test where the officer did not give defendant a reasonable opportunity to consult counsel before administering that test. Reversed and remanded. State v. Hyatt (per curiam)

Breath test refusal – Definition of refusal

“Refusal” just means non-submission – an unequivocal refusal isn’t needed. Here, the officer explained to the defendant the rights and consequences related to breath tests, answered her questions, and offered to let her call someone for advice. She expressed confusion and did not unequivocally refuse the test, after two offers. This was enough to cite her for refusal. “A person’s failure to promptly agree to take a breath test constitutes a refusal.” Fitzpatrick v. DMV , 236 Or App 113 (2010)

Breath test refusal – Right to consult attorney

If the arresting officer knows that the defendant needs assistance in calling an attorney, that assistance must be provided. Defendant was given 15 minutes to call an attorney, but needed glasses to read the phone book, and the officer did not assist. Remanded for consideration of the factual question of whether the officer was told about the need for glasses before or after the 15 minute period. State v. Roesler , 235 Or App 547 (2010)

Advice of Right to Privacy

An officer only needs to advise an arrested person of the right to talk in private with an attorney if the person asks to talk to an attorney. No invocation, no advice. In this case, defendant was told he could call anyone he wanted, including an attorney. But he wasn’t told that during a conversation with an attorney he would be given privacy. The defendant didn’t invoke any rights, though he did call his girlfriend, a friend and his employer. Then he blew a .21. Which was admissible. State v. Mendoza , 234 Or App 366 (2010)

Breath Test Refusal - License Suspension

“‘Anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the [breath] test constitutes a refusal to do so.’” The suspended person argued here that the officer didn’t follow the proper procedure for declaring a refusal. The court finds such procedure irrelevant where the person is given the chance to take the breath test and doesn’t do so. In this case, the person responded to the officer’s request to take a breath test thusly: “No, you’re an asshole. Put that in your report.” Tidwell v. DMV

Illegal Consent for Breath Test

Where there is probable cause and exigency, a breath test is admissible. This is true even if consent for the test was a product of unlawful police actions. Consent is unnecessary where there’s an exception to the warrant requirement. Since exigent circumstances exist because of the “evanescent nature” of alcohol in the body, that means that neither consent nor a warrant is necessary for a breath test where there is PC to arrest for DUII. State v. Hays

BAC is Ordinarily an Exigent Circumstance

“We therefore declare that, for purposes of the Oregon Constitution, the evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here. We do so, however, understanding that particular facts may show, in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional.” Because the court finds an exigency exception to the warrant requirement, it does not address the appellate court’s ruling that defendant’s consent was involuntary because he was told of the adverse legal consequences of refusing, as set out in the implied consent law. State v. Machuca

Breath Test Administration

The trial judge should not have suppressed a DUII breath test solely because the cop did not use his own personal id number for the breathalizer. The cop is required to possess a permit and PIN but “possess” means “own”, not have on his possession at that moment.