813.100
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 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 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.
(2) If a person
refuses to submit to 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 and the person has been informed of
rights and consequences as provided under ORS 813.130, the person’s driving
privileges are subject to suspension under ORS 813.410 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.
(c) If the person
qualifies under ORS 813.110, issue to the person, on behalf of the department,
a temporary driving permit described under ORS 813.110.
(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, along with the confiscated
license or permit and a copy of the notice of intent to suspend.
(3) 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, the person’s driving
privileges are subject to suspension under ORS 813.410 and the police officer
shall report to the department within 45 days of the date of arrest that the
person failed the blood test.
(4) 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; 2019 c.475 §1]
Notes of Decisions
Cited in
199
cases (
19 in the last 5 years), 1986–2026 · leading case:
State v. MacHuca, 218 P.3d 145 (Or. Ct. App. 2009).
State v. MacHuca, 218 P.3d 145 (Or. Ct. App. 2009).
· cites it 28× “The trial court recognized that the implied consent proclaimed by ORS 813.100 "cannot be regarded as a free exercise of will.”
State v. Eumana-moranchel, 277 P.3d 549 (Or. 2012).
· cites it 22× “08 percent 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, 813.140 or 813.150; *551 "(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or…”
State v. Spencer, 750 P.2d 147 (Or. 1988).
· cites it 15× “, and presently is codified at ORS 813.100, et seq. CRS 813.100 provides, in part: "(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…”
State v. Swan, 420 P.3d 9 (Or. 2018).
· cites it 13× “On July 25, 2013, the legislature added the following subsection to ORS 813.100 : "Nothing in this section [ORS 813.”
State v. Cabanilla, 273 P.3d 125 (Or. 2012).
· cites it 28× “095 provides, in part: “(1) A person commits the offense of refusal to take a test for intoxicants if the person refuses to: “(a) Take a breath test when requested to do so in accordance with the provisions of ORS 813.100[.]” A person may, of course, physically refuse to take…”
State v. MacHuca, 227 P.3d 729 (Or. 2010).
· cites it 8× “08 percent 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, 813.140 or 813.150U” 3 Under ORS 813.”
State v. Kirsch, 168 P.3d 318 (Or. Ct. App. 2007).
· cites it 25× “ORS 813.100 provides, in part: “(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 * * * for the purpose…”
State v. Trenary, 836 P.2d 739 (Or. Ct. App. 1992).
· cites it 23× “Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.”
State v. Moore, 318 P.3d 1133 (Or. 2013).
· cites it 7× “08 percent 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, 813.140 or 813.150; “(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or “(c) Is…”
Suspension of the Driving Privileges of Gaylord v. Driver & Motor Veh. Servs. Div., 391 P.3d 900 (Or. Ct. App. 2017).
· cites it 7× “A suspension under this section is valid if all of the following requirements have been met: “(a) The person, at the time the person was requested to submit to a test under ORS 813.100, was under arrest for driving while under the influence of intoxicants in violation of ORS 813.”
State v. Bloom, 172 P.3d 663 (Or. Ct. App. 2007).
· cites it 13× “At trial, defendant moved to suppress the test results, arguing that the officers violated ORS 813.100 and ORS 813.130 by giving him inaccurate information about the fine and that that violation required the court to suppress the test result.”
— Or. Rev. Stat. § 813.100(1) — 53 cases
State v. Trenary, 836 P.2d 739 (Or. Ct. App. 1992).
“Before the tests are administered, the person requested to take the tests shall be informed of the consequences of refusing to take or failing to submit to the tests under ORS 813.”
State v. MacHuca, 218 P.3d 145 (Or. Ct. App. 2009).
“The trial court recognized that the implied consent proclaimed by ORS 813.100 "cannot be regarded as a free exercise of will.”
State v. Moore, 318 P.3d 1133 (Or. 2013).
“08 percent 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, 813.140 or 813.150; “(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or “(c) Is…”
State v. Cabanilla, 273 P.3d 125 (Or. 2012).
“095 provides, in part: “(1) A person commits the offense of refusal to take a test for intoxicants if the person refuses to: “(a) Take a breath test when requested to do so in accordance with the provisions of ORS 813.100[.]” A person may, of course, physically refuse to take…”
State v. MacHuca, 227 P.3d 729 (Or. 2010).
“08 percent 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, 813.140 or 813.150U” 3 Under ORS 813.”
— Or. Rev. Stat. § 813.100(1)(a) — 1 case
State v. Eumana-moranchel, 277 P.3d 549 (Or. 2012).
“08 percent 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, 813.140 or 813.150; *551 "(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or…”
— Or. Rev. Stat. § 813.100(2) — 25 cases
State v. Swan, 420 P.3d 9 (Or. 2018).
“On July 25, 2013, the legislature added the following subsection to ORS 813.100 : "Nothing in this section [ORS 813.”
State v. Kirsch, 168 P.3d 318 (Or. Ct. App. 2007).
“ORS 813.100 provides, in part: “(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 * * * for the purpose…”
State v. MacHuca, 218 P.3d 145 (Or. Ct. App. 2009).
“The trial court recognized that the implied consent proclaimed by ORS 813.100 "cannot be regarded as a free exercise of will.”
— Or. Rev. Stat. § 813.100(2)(d) — 1 case
— Or. Rev. Stat. § 813.100(3) — 33 cases
State v. Kirsch, 168 P.3d 318 (Or. Ct. App. 2007).
“ORS 813.100 provides, in part: “(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 * * * for the purpose…”
— Or. Rev. Stat. § 813.100(3)(a) — 3 cases
State v. Cabanilla, 273 P.3d 125 (Or. 2012).
“095 provides, in part: “(1) A person commits the offense of refusal to take a test for intoxicants if the person refuses to: “(a) Take a breath test when requested to do so in accordance with the provisions of ORS 813.100[.]” A person may, of course, physically refuse to take…”
— Or. Rev. Stat. § 813.100(3)(b) — 6 cases
— Or. Rev. Stat. § 813.100(3)(d) — 2 cases
— Or. Rev. Stat. § 813.100(5) — 3 cases
State v. Swan, 420 P.3d 9 (Or. 2018).
“On July 25, 2013, the legislature added the following subsection to ORS 813.100 : "Nothing in this section [ORS 813.”
— Or. Rev. Stat. § 813.100(l)(a) — 1 case
State v. Eumana-moranchel, 277 P.3d 549 (Or. 2012).
“08 percent 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, 813.140 or 813.150; *551 "(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or…”
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