| Appendices |
Chapter 1 The Offense 2014 edition includes 2018 and 2016 updates
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by Jason Short & Shawn Kollie
Obviously the stakes are much higher when your client is facing a felony DUII charge. In these cases, your client has much more at risk, including the potential for prison time, a lifetime driver’s license revocation, and being labeled a “Felon.” Before representing someone facing this criminal charge, familiarize yourself with the Oregon Criminal Justice Commission’s Sentencing Guidelines Rules and consult experienced practitioners who have tried these cases before. The facts, aside from the prior convictions, will be like every other misdemeanor DUII case you have defended before. Do not let the label of “felony DUII” deter you from the case. There are many ways to effectively defend and attack felony DUII cases. Some of the methods are listed below.
Created in 1999, the Oregon Legislature established the crime of felony DUII. When HB 2002 passed, it created subsection 813.010 (5) which states:
“Driving while under the influence of intoxicants is a class C felony if the defendant has been convicted of driving under the influence of intoxicants in violation of this section or its statutory counterpart in another jurisdiction at least three times in the 10 years prior to the date of the current offense and the current offense was committed in a motor vehicle. For purposes of this subsection, a prior conviction for boating while under the influence of intoxicants in violation of ORS 830.325 or its statutory counterpart in another jurisdiction, or for prohibited operation of an aircraft in violation of ORS 837.080(1)(a) or its statutory counterpart in another jurisdiction, shall be considered a prior conviction of driving while under the influence of intoxicants.”
Next, in 2007 the legislature completely reorganized the statute and included “controlled substances, inhalants or any combination thereof” as part of the crime and moved to exclude convictions for minors where the conviction was based on their BAC being below the normal permissible limit for their jurisdiction (which is not a crime in Oregon as impairment must still be shown):
“(b) For the purposes of paragraph (a) of this subsection, a conviction for a driving offense in another jurisdiction based solely on a person under 21 years of age having a blood alcohol content that is lower than the permissible blood alcohol content in that jurisdiction for a person 21 years of age or older does not constitute a prior conviction.”
Finally, in 2009 the legislature put language back into the crime for defendants who have “been convicted of, or been found to be within the jurisdiction of the juvenile court for an act that if committed by an adult would be [a DUII].” This language allows some juvenile adjudications to be counted as a prior conviction.
Note: It has become the practice of many district attorneys offices in Oregon that for persons ages 15, 16 and 17 who commit traffic misdemeanor offenses (e.g., DUII’s, Reckless Driving), the case is remanded to adult/circuit court for prosecution and the juvenile court system is bypassed entirely.
In 2011 the Oregon Legislature made a major change to felony DUII cases and created ORS 813.011. The statute reads as follows:
(1) Driving under the influence of intoxicants under ORS 813.010 (Driving under the influence of intoxicants) shall be a Class C felony if the defendant has been convicted of driving under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants), or its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense. (2) Once a person has been sentenced for a Class C felony under this section, the 10-year time limitation is eliminated and any subsequent episode of driving under the influence of intoxicants shall be a Class C felony regardless of the amount of time which intervenes. (3) Upon conviction for a Class C felony under this section, the person shall be sentenced to a mandatory minimum term of incarceration of 90 days, without reduction for any reason.
Most obviously; ORS 813.010 (5) requires three prior convictions when ORS 813.011 only requires two prior convictions.
ORS 813.010 (5) requires that the current crime be a motor vehicle (defined in ORS 801.360) whereas ORS 813.011 being similar to the rest of the DUII statutes only requires a vehicle (ORS 801.590). However, under either statute the prior conviction crimes can include Boating Under the Influence, Pedaling Under the Influence or other variations as a prior conviction in Oregon or another jurisdiction.
One of the most important things counsel can do for a felony DUII defendant is to exclude, suppress, or otherwise nullify the prior conviction so those priors are no longer an element of the felony DUII. For purposes of the current DUII charge being a felony, the prior convictions are measured from the date of conviction of the priors to the date of incident on the current charge.
ORS 136.434 and ORS 813.328 are the two guidelines. Counsel should familiarize themselves with these statutes and the subsequent case law before moving forward.
Note: ORS 813.328 (1) A defendant who challenges the validity of prior convictions alleged by the state as an element of felony driving while under the influence of intoxicants must give notice of the intent to challenge the validity of the prior convictions at least seven days prior to the first date set for trial on the felony charge. [See Appendix A] (First Date = First Trial Setting).
1. Validity of a Prior Conviction To be used as an element of the crime of DUII, each prior conviction must meet the Oregon standard for a valid conviction. Although uncounseled pleas are becoming far less frequent, they still occur. Under McKenzie, 195 Or App 318 (2004), the Court of Appeals found that Oregon law requires that “an uncounseled guilty plea be preceded by a knowing waiver of counsel that is based on an awareness by the defendant of the risks of self-representation.” In Oregon, under Meyrick, 313 Or 125 (1992), and later Reed, 247 Or App 155 (2011), the courts have established that a presumption of a validity exists as to a judgment which was unappealed, or has become final after appeal. Therefore, the defendant has the burden of proving by a preponderance of the evidence that the conviction is invalid, then the burden shifts to the state to prove beyond a reasonable doubt the validity of the prior conviction. Luttrell, 80 Or App 771 (1986); See also Probst, 339 Or 612 (2005). [Appendix B]
2. Other Jurisdictions Any out-of-state prior conviction must meet the same requirements of a “statutory counterpart” to Oregon’s DUII to be counted as a prior conviction. Ortiz, 202 Or App 695 (2005). However, a statute may be a “statutory counterpart” to ORS 813.010 even if it does not have the same elements as ORS 813.010. Mersman, 216 Or App 194 (2007); Rawleigh, 222 Or App 121 (2008); Donovan, 243 Or App 187 (2011); Rutherford, 244 Or App 113 (2011). Courts have been notoriously broad when interpreting a “statutory counterpart” to Oregon’s ORS 813.010. The counterpart requirement is met if the crimes are “remarkably similar or have same use, role or characteristics.” Mersman, supra. This would typically exclude convictions for “wet reckless” or other such crimes.
3. Other Considerations
Violations, as opposed to crime’s should not be considered convictions for purposes of felony DUII elements as they do not fit the “statutory counterpart” of the DUII in Oregon, nor the preponderance standard inherent in any violation.
Pursuant to ORS 813.170, the defendant may not plead guilty to another offense when they are charged with DUII. What this statute does not say is that a defendant may not plea to a misdemeanor DUII when they have been charged with a felony DUII. Some of the factors that prosecutors will look for include age of the prior convictions, relative criminal history, success in treatment, high risk driver’s courses, etc. Although it can be very difficult, use all these positive factors to help negotiate the misdemeanor DUII.
The elements of a felony DUII trial will be identical to the elements in a misdemeanor DUII trial. The state will still be required to prove the same elements with one additional requirement, the prior convictions. If counsel is unable to exclude, suppress, or otherwise nullify the prior conviction, be prepared to either stipulate or face their existence head-on with the jury.
If the defendant does not stipulate to the existence of prior convictions pursuant to ORS 813.326 (3), the prosecutor will be required to prove them beyond a reasonable doubt. The most common way is via certified copies of the judgment presented to the jury pursuant to OEC 902. These judgments will be admitted and allowed for the jury to consider. With prior convictions admitted and under consideration by the jury, the defense of your case just became far more difficult.
The best course of action for a Felony DUII is to stipulate to the prior convictions under ORS 813.326 (3), thereby excluding this evidence from the consideration of the jury. There will still be a twelve member jury empaneled, however the jury will not be advised that this is a felony case, nor will they be advised of the prior convictions unless and until a guilty verdict is reached. If the defendant has stipulated to the priors and is convicted by the jury, arguments that can be made regarding the validity of those prior convictions are limited at that point.
Note: All arguments regarding pretrial admissibility and validity of the prior convictions should have already been litigated, but objection (outside the presence of the jury) should be made for purposes of appeal (see Section III). Look at any documents carefully – only a final judgment of conviction is sufficient to prove the existence of the prior beyond a reasonable doubt. Beware of certified copies of dockets, summary letters from clerks of court, plea petitions, charging documents and other documents that are not final judgments of conviction.
See Chapter 16, Sentencing.
(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person: (a) Has 0.08 or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100 (Implied consent to breath or blood test), ORS 813.140 (Chemical test with consent), or ORS 813.150 (Chemical test at request of arrested person); (b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or (c) Is under the influence of any combination of intoxicating liquor, an inhalant, and a controlled substance.
(2) A person may not be convicted of driving while under the influence of intoxicants on the basis of being under the influence of a controlled substance or an inhalant unless the fact that the person was under the influence of a controlled substance or an inhalant is pleaded in the accusatory instrument and is either proved at trial or is admitted by the person through a guilty plea.
Driving under the influence of intoxicants is a strict liability crime. A culpable mental state is not required. State v. Newman, 246 Or App 334 (2011). A voluntary act is required. In 2013, the Oregon Supreme Court stated that evidence of sleep-driving should be allowed in as relevant to the issue of whether defendant’s act of driving was voluntary. State v. Newman(SC S060182, 2013).
The state must prove that the defendant was:
1) driving a vehicle, 2) upon premises open to the public, 3) driving occurred within the jurisdiction of the court, 4) blood alcohol content of .08% as shown by chemical analysis, and/or was 5) under the influence of intoxicating liquor, and/or a controlled substance, and/or an inhalant.
1. Driving a Vehicle
a. Although the term “drives” is not defined under 813.010, the word is “construed as requiring that the vehicle be in motion in order for the offense to be committed.” State v. Minow, 246 Or App 179, 184-185 (2011). The terms “drives” (ORS 813.010) and “operates” (ORS 813.100) are synonymous. The term “operation” is defined in ORS 801.370 as “any operation, towing, pushing, movement or otherwise propelling.” Nothing indicates that this definition not be applied in the context of DUII. State v. Cruz, 121 Or App 241, 244 (1993).
b. Driving can be inferred from the circumstances. While having the engine running does not constitute “driving” under the statute, a jury could reasonably infer that the defendant drove to that location. State v. Bilsborrow, 230 Or App 413, 418-19 (2009) (conviction upheld where defendant was found asleep in a parked car with the engine running, the car in gear, his foot on the brake, and intoxicated).
2. Upon Premises Open to the Public
a.“Except as provided in subsection (5) of this section, the offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any premises open to the public.” ORS 813.010(4).
b.ORS 801.400 defines “premises open to the public” to include “any premises open to the general public for the use of motor vehicles, whether the premises are publicly or privately owned and whether or not a fee is charged for the use of the premises.” The term “premises open to the public” should be defined so as to achieve its primary purposes, which is to protect members of the public from serious driving offenses. See State v. Sterling, 196 Or App 626, 630-31 (2004).
3. Driving Occurred Within the Jurisdiction of the Court
a. The state has the burden of establishing that the defendant drove a vehicle within the jurisdiction of the court in its case in chief. “In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed…” Article I, section 1, Oregon Constitution.
b.Jurisdiction lies where there is proof that defendant drove within one mile of the county line. State v. McCown, 113 Or App 627, 631 (1992). This does not violate Article I, section 11; but note that non-criminal traffic offenses are governed by a separate statute (ORS 153.570).
c. If the state fails to establish jurisdiction, the proper action is to move for judgment of acquittal. Failure to move for judgment of acquittal waives a defendant’s appellate claim that the state failed to establish venue. State v. Maestas, 113 Or App 744 (1992).
4. Blood Alcohol Content of .08 Percent as Shown by Chemical Analysis
a. The prosecution may show a defendant committed the offense of driving under the influence of intoxicants by proving the defendant drove with a blood alcohol content of .08% or higher as shown by chemical analysis. ORS 813.010(1)(a). The prosecution may also prove the defendant violated the statute by driving under the influence of intoxicants. ORS 813.010(1)(b)-(c).
b.The relevant point in time for a defendant’s blood alcohol content is the time of driving, not the time of the breath or blood test. Retrograde extrapolation may be used to show a defendant’s blood alcohol content at the time they were driving. 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 the driving. An expert may testify about the rate of dissipation through retrograde extrapolation. See State v. Eumana-Moranchel, 352 Or 1 (2012).
c. When using retrograde extrapolation to prove blood alcohol content, the state must make a foundational showing of the scientific validity of expert’s methods pursuant to Brown/O’Key. See State v. Whitmore, 257 Or App 664 (2013).
5. Under the Influence of Intoxicants
a. The prosecution may show a defendant violated the DUII statute by proving they were under the influence of an intoxicating liquor, a controlled substance, an inhalant, or any combination of intoxicating liquor, inhalant and a controlled substance. ORS 813.010(1)(b)-(c). The state must allege any such theory in the charging instrument. ORS 813.010(2).
b. A person is considered under the influence of intoxicants if their physical and mental faculties are adversely affected to a noticeable or perceptible degree, regardless of their blood alcohol content. See State v. Stroup, 147 Or App 118, 122 (1997) (“Under ORS 813.010(1)(b), a person is under the influence of intoxicating liquor or a controlled substance when the person’s physical or mental facilities are adversely affected to a noticeable or perceptible degree.”)
c.The state may try and prove a defendant was under the influence of intoxicants by offering evidence of poor driving, officer observations upon contact with the defendant, performance on field sobriety tests, admissions made by the defendant, audio and/or video recordings, DRE interviews, breath or blood test results, and/or urinalysis.
d.Under ORS 813.010(2), scheduled controlled substances must be in the charging instrument in order to be used as evidence of intoxication. Drugs must be pled to be relevant in a controlled substance DUII case. State v. Jayne, 173 Or App 533 (2001).
1. Driving under the influence cases are fairly straightforward to prepare and present. The state’s case must be based on logic and reason. If the case theory is not logical, it clearly will not rise to beyond a reasonable doubt.
2. The goal for the prosecution is to build a trusting relationship with the jury during jury selection and not overpromise facts that cannot be delivered during opening statement. The same is true for defense attorneys. However, for prosecutors, during the trial the focus should be on the witnesses. In my opinion, the best prosecutor directs the case but is unnoticed by the jury during his or her case in chief. The reasoning is simple: the jurors are going to figure out the prosecutor wasn’t there when the defendant was driving, pulled over, performing tests, back at the police station or hospital or for any part of the interviewing/investigating stage. Any attention placed on the prosecutor is a lost opportunity for focus on the witnesses. At the end of the case, the jury should be basing the verdict on the evidence. And the witnesses and exhibits provide the evidence.
A prepared prosecutor breaks down a DUII case into five easy sections.
1. Initial Tactical Decisions a.Is there reckless driving that could bring in prior DUIIs?
b.Is there a way to get in the Miles instruction?
2. Themes—Driving and Impaired
a.The defendant was driving—no bad driving is required.
b.Drunk driving is not the standard. Check out the uniform jury instructions regarding the definition of impairment.
c.Deciding to convict is hard for a jury. Therefore, the more emphasis on examining the actions rather than the person will make it easier for the jury to convict.
3. Direct – Organizing the Evidence to Prove the Elements of DUII
a.The experience of the officer—build credibility that is either corroborated by blood/breath test or put up against defendant’s refusal and willingness to take all the penalties with a refusal. b.The driving observed, including how/where the defendant pulled over. c.The “informal field sobriety tests” or the personal contact between officer and defendant through initial screening before field sobriety tests. d.The standardized field sobriety tests. e.Inventory/transport/misc. f. DUII interview. g.Observation/breath/blood test. h.Prior treatment/diversion/conviction.
State v. Berliner, 232 Or App 539 (2009). Admission of specifics from defendant’s prior treatment allowed to prove that defendant was aware that driving under the influence is dangerous behavior for the purpose of any companion charge that includes a reckless state of mind.
State v. Coen, 231 Or App 280 (2009). Defendant’s prior DUII comes in to prove recklessness (if defendant is charged with a crime that has a Reckless mens rea) without a balancing test under OEC 403(4). See Chapter 17, Appeals.
4. Re-direct
After defense brings up the list of what is missing, get the case back to how those indicators aren’t needed as not everyone shows every sign.
5. Cross-examination—don’t ruin closing argument material
a.Field tests—would they have been performed the same without alcohol in system? b.Breath test—never asked for a breath test. Never said disagreed with the breath test. Never asked to take another test. c.Refusal—apparently license isn’t important. Took longer suspension period. Hiding something? d.State v. Tyon, 226 Or App 428 (2009). Bias is never collateral. Defendant had been arrested for DUII before by the same officer and had been acquitted. The officer testified that he thought the client was guilty and had gotten off. He might have a bias based on that and want to be sure that defendant didn’t get off this time.
DUII - A Person in a Motorized Wheelchair in a Crosswalk is a Pedestrian and Not a Driver The court concludes that defendant - who was intoxicated while operating his motorized wheelchair in a crosswalk - was entitled to a judgment of acquittal for DUII. The court agrees with defendant that at the time he was operating his wheelchair in a crosswalk, he was a pedestrian, not a driver subject to the vehicle code. The court acknowledges that the state's argument, that defendant's motorized wheelchair is a vehicle, is not without some merit. The vehicle expressly treats motorized vehicles as bicycles when they are operated in a bicycle lane or path. Accordingly, a person in a motorized wheelchair may be subject to DUII when operating in a bike lane. However, the vehicle code treats persons in wheelchairs as pedestrians for most other purposes and a person cannot be simultaneously a pedestrian and a driver. Therefore, when a person in a motorized wheelchair is traveling as a pedestrian in a crosswalk, he is not subject to DUII. State v. Greene, 283 Or App 120 (2016) (Armstrong, P.J.) {End Jan. 2018 Update}
By Mark Gorski & John Powers
Boating Under the Influence of Intoxicants is addressed in ORS 830.325. Under that statute, no person may “operate, propel or be in actual physical control of any boat on any waters” of Oregon while “under the influence of an intoxicating liquor of controlled substance.” ORS 830.325(1). Additionally, “no owner of a boat or person in charge or in control of a boat shall authorize or knowingly permit the boat to be propelled or operated on any waters of this state by any person who is under the influence of an intoxicating liquor or a controlled substance.” Id. (2).
A “boat” is defined as “every description of watercraft, including a seaplane on the water and not in flight, used or capable of being used as a means of transportation on the water, but does not include boathouses, floating homes, air mattresses, beach and water toys or single inner tubes.” ORS 830.005(2). State v. Lambert, 227 Or App 614 (2009). An inflatable raft is a boat even if it has no oarlocks or ropes. Floating on it may be operating it.
Practice Tip
An inflatable mattress is not a boat. A water toy is not a boat. Try to get your inflatable defined as either a mattress or a toy.
State v. Bilsborrow, 230 Or App 413 (2009). Evidence of defendant’s refusal to take a urine test is not relevant under Implied Consent because defendant was on a raft, not a boat. It was not error to give the refusal instruction because defendant's refusal is generally relevant to the issue of whether or not he was under the influence.
Under ORS 830.510(2), “not less than .08 percent of weight of alcohol in a person’s blood constitutes being under the influence of intoxicating liquor.” If it is shown by chemical analysis of breath or blood that the weight of alcohol was less than .08 percent, then it is “indirect evidence that may be used with other evidence, if any, to determine whether or not the person was under the influence of intoxicants.” ORS 830.510(1).
Under ORS 830.035(1) sheriffs and other peace officers are empowered to enforce the statutes and regulations of the State Marine Board and “may stop any boat and direct it to a suitable pier or anchorage for boarding.” This statute does not create a maritime exception to search and seizure laws. State v. Lecarros, 187 Or App 105, 66 P3d 543 (2003) (rejecting the argument that the history of U.S. and Oregon constitutions creates a maritime exception to search and seizer protections) review denied. In that case, deputy sheriffs arrested Lecarros for a BUII following a safety check of his boat. The court found that ORS 830.035(1) provided sufficient legal authority for the seizure, but the absence of rules to limit the discretion of seizures by deputies made the seizure unconstitutional: “So long as ORS 830.035(1) is not supplemented by rules governing its enforcement so as to eliminate officer discretion, it cannot lawfully authorize warrantless, suspicionless seizures.” Id.
ORS 830.990 has been amended as of 2009 to include authority for the Department of Fish and Wildlife to set up check stations to look for illegal invasive species on board boats.
Reasonable suspicion for a stop is based upon a totality-of-the-circumstances test. State v. Busacker, 154 Or App 528, 962 P2d 723 (1998), review denied; citing ORS 131.605(4). In that case, Busacker was arrested for BUII after officers had previously observed drinking on his boat, though not by him, and after the officers received reports of intoxication from Naval Officers. The court found that the previous observations and the “tip” from the Navy personnel were sufficient for reasonable suspicion. Id.
Field sobriety tests as a component of BUII cases are often overlooked by both the police and defense attorneys. The National Association of State Boating Law Administrators (NASBLA), in a successful grant application to the U.S. Coast Guard, noted the following:
A battery of SFSTs was validated for traffic enforcement over two decades ago and since has become accepted nationwide as a means of demonstrating probable cause to arrest suspected impaired drivers. However, no such definitive validation has ever been conducted for SFSTs used on suspected impaired boat operators. In fact, the Horizontal Gaze Nystagmus (HGN) field sobriety test is the only truly validated SFST that can be administered to BUI suspects by marine law enforcement officer while afloat.
Despite the lack of validation, many marine enforcement agencies routinely teach their officers to use these same highway-based SFSTs to screen boat operators, a purpose for which they were not validated. Over the course of the last 20 years literally thousands of BUI cases have been prosecuted using SFSTs designed and validated for use on highways, but borrowed as proxies for use on our waterways. Unfortunately, the primary battery of SFSTs approved by the National Highway Traffic Safety Administration (NHSTA) for use in highway traffic enforcement is based on the assessment of human motor skills linked to one’s sense of balance.
The grant application is full of excellent information that illustrates the weaknesses in BUII prosecutions, especially with regard to the administration of field sobriety tests. NASBLA’s application recounts the history of studies conducted concerning field sobriety tests in a marine environment, concluding with a description of the research to date:
In 1993, Dr. Marceline Burns (“A Study of Field Sobriety Tests in the Marine Environment”), of the Southern California Research Institute, conducted a preliminary study in an attempt to evaluate a number of accepted field sobriety tests and their use in a marine environment. The results of this study indicated the Rhomberg-type tests of subtraction and backward counting variations were not alcohol-sensitive enough for use as FSTs. Three tests showed significant promise as on-boat FST and were identified as the finger to nose, 30-second time estimation and the skip alphabet. As a note, horizontal gaze nystagmus (HGN) was also evaluated in the marine environment, but because it is neural and not vestibular in origin (vestibular impairment may include dizziness, imbalance, vertigo, nausea, and fuzzy vision), there were no perceived issues in its use as an on-boat FST. Recently, HGN was validated for both sitting and prone positions, thus increasing its validity as an on-boat predictor of alcohol use in the marine environment.
In 2011, after a three-year study funded by the Coast Guard, NASBLA – along with the SCRI – validated four seated field sobriety tests for use afloat. Four seated tests have been approved for detection of impairment (defined as BAC greater than or equal to .08%: horizontal gaze nystagmus; finger to nose; palm pat, and hand coordination.
“Horizontal Gaze Nystagmus – The HGN test requires three separate checks, administered independently to each eye. Four or more clues indicate impairment due to BAC greater than or equal to .08%.
Finger to Nose – The FTN test requires the subject to bring the tip of the index finger to touch the tip of the nose. It is performed with eyes closed and head tilted slightly back. Nine or more clues indicate impairment due to BAC greater than or equal to .08%.
The Palm Pat – The PP test requires the subjects to place one hand extended, palm up, out in front of them. The other hand is placed on top of the first with the palm facing down. The top hand rotates 180 degrees and pats the bottom hand, alternating between the back of the hand and the palm of the hand. The bottom hand remains stationary. The subjects count out loud in relation with each pat. Two or more clues indicate impairment due to BAC greater than or equal to .08%.
The Hand Count – The HC test requires the subjects to perform a series of tasks with their hands. It is very loosely adapted from the Walk-And-Turn test performed on land. Three or more clues indicate impairment due to BAC greater than or equal to .08%.”
Fiorentino, Dary D., “Validation of Sobriety Tests for the Marine Environment,” Accident Analysis and Prevention November 2010. (See Appendix).
A person operating a boat on any waters of Oregon “shall be deemed to have given consent to submit to chemical tests” of their breath for “purposes of determining the alcoholic content” of their blood, provided they are arrested “in violation ORS 830.325 or of a municipal ordinance.” ORS 830.505(1).
Officers may request a test if they have “reasonable grounds to believe that the person arrested was operating a boat while under the influence of intoxicants while in violation of ORS 830.325 or of a municipal ordinance.” Id.
The person being asked to take the test “shall be informed of rights and consequences as described in ORS 830.545.” Id. Under ORS 830.545 “the information about rights and consequences shall be:”
(a) Operating a boat under the influence of intoxicants is a crime in Oregon and the person is subject to criminal penalties if the test shows that the person is under the influence of intoxicants. If the person refuses the test or fails, evidence of the refusal or failure may also be offered against the person. (b) The person fails the test if the test shows the person is under the influence of intoxicants under Oregon law. (c) If the person is convicted of operating a boat while under the influence of intoxicants, the person may not operate a boat for a period of time following the conviction. (d) If the person is convicted of operating a boat while under the influence of intoxicants, the person is not eligible to apply for any certificate of title, registration or numbering and all certificates of title, registration and numbering necessary to lawfully operate a boat on Oregon waters shall be canceled for at least a year. The ineligibility to apply for certificates or the cancellation of the certificates shall be substantially longer if the person refuses the test. (e) After taking the test, the person shall 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.
ORS 830.545(2)(a)-(e).
A test will not be administered if the person under arrest refuses the request for a test after she or he “has been informed of rights and consequences as described in ORS 830.545.” ORS 830.505(2).
State v. Bilsborrow, 230 Or App 413 (2009). Evidence of defendant’s refusal to take a urine test is not relevant under Implied Consent because defendant was on a raft, not a boat. It was not error to give the refusal instruction because defendant's refusal is generally relevant to the issue of whether or not he was under the influence. See also State v. Bilbro, 229 Or App 231 (2009).
A person’s refusal to “submit to chemical tests of breath, blood or urine as required by ORS 830.505 and 830.520” is admissible “in any criminal or civil action or proceeding arising out of acts alleged to have been committed while the person was operating a boat while under the influence of intoxicating liquor or controlled substances.” ORS 830.515.
The requirements for breathalyzer tests under 830.505 are not intended to preclude other chemical tests. ORS 830.520. With a person’s expressed consent, a peace officer may obtain that person’s blood to test for alcohol, or the officer may obtain the person’s blood or urine to test for a controlled substance. Id. (1). An officer can obtain those bodily fluids without the person’s consent if: “(a) The peace officer has probable cause to believe that the person was operating a boat while under the influence of an intoxicating liquor or controlled substance 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.” Id. (2)(a)-(b).
A “person shall be permitted upon request, at the person’s own expense, reasonable opportunity” to have “any licensed physician, licensed professional nurse or qualified technician, chemist or other qualified person of the person’s own choosing administer” a breath or blood test for the purpose of determining the alcoholic content of the person’s blood. Under those same requirements, a person may obtain a test of their blood and/or urine for the purposes of determining the presence of a controlled substance in the person. ORS 830.525. The “failure or inability to obtain such a test or tests… shall not preclude the admission of evidence relating to a test or test taken upon the request of a peace officer.” Id.
“‘Chemical Test/Chemical Analysis’ means a quantitative analysis for alcohol by means of direct or indirect measurement of physiochemical technique performed on a sample of breath.” OAR 250-010-0410.
Analysis of breath is valid under ORS 830.505, 830.520, and 830.525 if it is performed by a person possessing a valid permit from the Department of State Police, under ORS 813.160, or by the State Marine Board. ORS 830.535(1)(b). The analysis must also “be performed according to the methods approved by the Department of State Police under ORS 813.160” or by the approved methods of the State Marine Board. Id. The State Marine Board shall prepare manuals and conduct courses for peace officers throughout Oregon. ORS 830.535(1)(b)(B).
For arrests under ORS 830.325, the approved machines for breathalyzer tests are Intoxilyzer 8000, Intoxilyzer 5000, Intoxilyzer 1400, and Drager Alcotest EPAS (Evidential Portable Alcohol System) 7410 Plus. OAR 250-010-0430(3). The Department of State Police and the State Marine Board can approve the use of other instruments and equipment for testing breath for alcohol content of the blood. OAR 250-010-0470.
The accuracy of breath testing equipment “shall be performed by qualified personnel of “the Oregon State Police Forensic Division, a state agency with appropriate laboratory facilities and personnel trained in testing the equipment, or an independent laboratory facility with personal trained in testing such equipment. State Marine Code 250-010-0460(1)(a)-(c). The testing facility “shall certify the accuracy of the instrument if the accuracy test performance is within a range of .01 high to .02 low from the expected value of a reference sample provided by the laboratory.” Id. (2). The testing my be done on-site or by “remote telephone modem.” Id. (3). The State Marine Board shall test and certify the accuracy of the breath testing equipment used by peace officers before regular use of the equipment and “at intervals of not more than 90 days.” ORS 830.535(1)(b)(C).
Individuals performing a chemical analysis of breath under ORS 830.505, 830.520, and 830.525 “shall sign a written report of the findings of the test.” Id. (3). If the test is done at the request of a peace officer, the test must include the identification of the officer. Id. (3). Upon the request of the person tested, copies of test done in connection to ORS 830.505, 830.520, and 830.525 shall be furnished to the tested person or their attorney. Id. (4).
An analysis of a person’s blood content for alcohol is valid under ORS 830.505, 830.520, and 830.525 if it is: a “laboratory certified or accredited under 42 C.F.R. 493 and approved for toxicology testing,” a “laboratory licensed under ORS 438.110 and approved toxicology testing,” or a “forensic laboratory established by the Department of State Police under ORS 181.080 that is accredited by a national forensic accrediting organization.” ORS 830.535(1)(a)(A)-(C). Chemical analysis of blood shall be done in accordance to methods found “in OAR Chapter 33, Division 13 of the Health Division, Department of Human Resources.” OAR 250-010-0430(1).
“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 in conducting a chemical test of the blood. Id. (2). If the test is done at the request of a peace officer, the test must include the identification of the officer. Id. (3). Upon the request of the person tested, copies of tests done in connection to ORS 830.505, 830.520, and 830.525 shall be furnished to the tested person or their attorney. Id. (4).
A violation of ORS 830.325 is a Class A misdemeanor. ORS 830.990(6). Additionally, following a conviction the courts shall:
(a) Order the person not to operate a boat for a period of one year; (b) Order the person to complete a boating safety course approved by the State Marine Board; and (c) Include in the record of conviction a finding whether the person willfully refused the request of a peace officer to submit to chemical testing of the breath or a field sobriety test pursuant to ORS 830.505 and 830.550. For purposes of this subsection, a person shall be found to have willfully refused the request if the person was informed about rights and consequences concerning the test under ORS 830.505 and 830.545 and refused to submit to the test.
ORS 830.994(1)(a)-(c).
Within ten days of a BUII arrest, the arresting officer must submit an Operating Under the Influence Report and Consent Report to the State Marine Board. State Marine Code 250-010-0420. ORS 830.505 requires “within the time required by the State Marine Board” that an officer report “whether the person refused to submit to a test” and if “the person was informed of rights and consequences as described under ORS 830.545.” ORS 830.505(3)(a)-(b).
Diversion. Most counties do not allow diversion in a BUII, taking the position that since it is not specifically authorized by statute, it should not be allowed. As of this writing, Jackson and Douglas counties are the only counties that do allow diversions for BUII’s. Check with the DA’s office or the court clerk or trial court administrators office to be sure of current policy.
State of Oregon Law Enforcement Boating Safety Laws
Oregon State Marine Board Boating & Alcohol Section
National Association of State Boating Law Administrators
By Shannon M. Mortimer & Bruce Tarbox So your client rolls in to your office and lets you know they got a DUII on a bicycle. How can this happen, they ask. It was just a bike. Well, here is your primer on bicycles and DUIIs.
814.400 Application of vehicle laws to bicycles (1) Every person riding a bicycle upon a public way is subject to the provisions applicable to and has the same rights and duties as the driver of any other vehicle concerning operating on highways, vehicle equipment and abandoned vehicles, except: (a) Those provisions which by their very nature can have no application. (b) When otherwise specifically provided under the vehicle code. (2) Subject to the provisions of subsection (1) of this section: (a) A bicycle is a vehicle for purposes of the vehicle code; and (b) When the term ““vehicle”” is used the term shall be deemed to be applicable to bicycles. (3) The provisions of the vehicle code relating to the operation of bicycles do not relieve a bicyclist or motorist from the duty to exercise due care. [1983 c.338 §§697; 1985 c.16 §§335]
State v. Woodruff, 81 Or App 484 (1986).
Referring to former ORS 487.005(5) definition of “driver” as “any person in physical control of a vehicle” and using the former chapter 487 definition of vehicle that includes bicycles, Woodruff holds that the DUII statute (now 813.010) “applies to bicyclists.” Id at 487.
This application of the DUII statute to bikes implicates the standards that the state must meet in order to prove a DUII case; either a BAC of .08% or greater at the time of operation of the bicycle or that the bicyclist is under the influence of 1) intoxicating liquor, 2) a controlled substance, or 3) a combination of alcohol and a controlled substance such that the person’s physical or mental faculties are adversely affected by the intoxicants to a noticeable and perceptible degree.
(1) Any person who operates a motor vehicle upon premises open to the public...shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person’s breath....
By the very terms of the statute, implied consent does not apply to bicycles. If you receive a police report where the officer walks through the IC paperwork with your client then gets them to take the breath test, the client is entitled to suppression of the BAC results. State v. Woodruff, supra, makes this an express holding. Id at 487.
Even if you receive no IC paperwork in the police report, it is worth asking your client whether there were any threats or promises, express or veiled, made by the officer regarding adverse consequences of refusing a breath or blood test. Since IC does not apply to bicycles, there is no license sanction for refusing the breath/blood test.
Regardless of the Implied Consent statute, an officer may still seek out a warrant for a blood draw. Many of the same issues that we encounter with motor vehicle DUIIs will arise:
What did the officer swear to in their Affidavit in Support of Warrant? Who drew the blood? 813.160(2) only allows a licensed physician or person working under the direction or control of a licensed physician to pierce human tissue. Was an iodine or betadine swap used, as opposed to an alcohol swab? Does the lab performing the test comport with 813.160?
State v. Woodruff lays the groundwork for the argument that if a statute refers to “vehicle,” it will apply to bicycles. See Reckless Driving 811.140, “a person commits the offense of Reckless Driving if the person recklessly drives a vehicle...”(emphasis added). But if a statute refers to “motor vehicles,” the bicycles will not fall under the statute. See Implied Consent.
However, State v. Potter, 185 Or App 81 (2002), raises a red flag as to the “vehicle” vs. “motor vehicle” distinction as used in the Vehicle Code. In Potter a bicyclist was convicted under 811.130 for impeding traffic. This particular statute states that “a person commits the offense of impeding traffic if the person drives a motor vehicle or a combination of motor vehicles in a manner that impedes or blocks the normal and reasonable movement of traffic.”
The Court of Appeals affirmed the trial court’s denial of the bicyclist’s Motion for Judgment of Acquittal on the grounds that 811.130 did apply to bicycles, express reference to motor vehicles in the statute notwithstanding. In reaching this conclusion the court relied on 801.026(6) and 814.400.
801.026 lays out a list of exemptions and exceptions to the vehicle code. Subsection (6) addresses bicycles: “6) Devices that are powered exclusively by human power are not subject to those provisions of the vehicle code that relate to vehicles. Notwithstanding this subsection, bicycles are generally subject to the vehicle code as provided under ORS 814.400.” See State v. Smith, 184 Or App 118 (2002) (a skateboard is not a vehicle within the meaning of ORS 811.140 (Reckless Driving)).
After engaging in a PGE v. BOLI analysis, the court concludes that, since 801.026(6) exempts non-motorized vehicles from the Vehicle Code except for bicycles as provided in 814.400, the exception spelled out in 814.400(2)(that 814.400 does not apply when otherwise provided under the Vehicle Code) would be rendered meaningless were the court to find that 811.130 did not apply to bikes without the legislature specifically exempting bicycles from the coverage of 811.130.
In other words, according to Potter, non-motorized vehicles are exempted from the vehicle code under 801.026(6) except for bicycles. In general, bikes fall under the vehicle code by way of 814.400(1), unless according to 814.400(1)(b) “otherwise specifically provided under the vehicle code.” Potter seems to hold that bicycles always fall under all provisions of the vehicle code unless a particular statute specifically says it does not apply to bicycles.
There is great conflict between Potter and Woodruff. Under the Potter reasoning, implied consent should apply to bicycles because it does not specifically exempt bicycles. Extending Potter to implied consent would lead to an absurd result because no operator’s license is necessary to ride a bicycle in Oregon, thus the implicit consent to take a breath test one gives to the state when they receive a driver’s license simply doesn’t exist when it comes to bicycles.
Should this issue come up, another angle of attack is 814.400(1)(a), which provides that the vehicle code applies to bicycles except for “those provisions which by their very nature can have no application.” This subsection was not argued in Potter. Arguably, a provision in the code that refers specifically to motor vehicles cannot by its very nature apply to bicycles. Presumably, the legislature knows what it is doing when it uses the more specific language of “motor vehicle” versus simply “vehicle” in any given provision in the vehicle code.
Permanent revocation of driving privileges of person convicted of felony while driving under influence of intoxicants or of multiple driving under influence of intoxicants offenses applies to person convicted of felony or offenses while operating bicycle under influence of intoxicants. State v. Abbey, 239 Or App 306, 245 P3d 152 (2010), Sup Ct review denied.
Was your client riding his bike on the sidewalk as opposed to in the street? The vehicle code only applies to those areas that are “premises open to the public.” Under 801.400, “premises open to the public” includes any premises open to the general public for the use of motor vehicles, whether the premises are publicly or privately owned and whether or not a fee is charged for the use of the premises. [1983 c.338 §§72]
A sidewalk is not open for the use of motor vehicles; the code does not apply in that situation.
How was you client doing on his bike before he got pulled over? Riding a bicycle requires not only a fair amount of physical coordination, but balance as well. It really is a test of divided attention and balance. Were they riding along just fine prior to being stopped for not having a light on their bike?
Bike Portland
Portland Bureau of Transportation Bikes and the Law Section
State of Oregon Bicycle Laws and Regulations
Bicycle Transportation Alliance
The League of American Bicyclists