813.140
Chemical test with consent; unconscious person. Nothing in ORS 813.100, 813.131 or
813.132 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 cannabis,
psilocybin, 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; 2017 c.21 §83; 2019 c.475 §7; 2021
c.253 §9]
Notes of Decisions
Cited in
27
cases (
1 in the last 5 years), 1986–2022 · leading case:
State v. Milligan, 748 P.2d 130 (Or. 1988).
State v. Milligan, 748 P.2d 130 (Or. 1988).
· cites it 8× “Under ORS 813.140, a police officer is granted authority to obtain a chemical test of a suspect's blood for its alcohol content under the following circumstances: "* * * A police officer may obtain a chemical test of the blood to determine the amount of alcohol in any person's…”
State v. Moylett, 836 P.2d 1329 (Or. 1992).
· cites it 6× “, that suppression was required under ORS 813.140. The trial court did not rule on this theory.”
State v. Spencer, 750 P.2d 147 (Or. 1988).
· cites it 4× “" [2] This interpretation of the implied consent law is reinforced by the legislature's express distinction between a person's "refusal to consent" to other kinds of chemical tests, see ORS 813.140, and a person's "refusal to submit" to a breath test, see 813.”
State v. Cromb, 185 P.3d 1120 (Or. Ct. App. 2008).
· cites it 5× “ORS 813.140. 1 A grand jury indicted defendant for, among other offenses, driving under the influence of intoxicants (DUII).”
State v. Snyder, 97 P.3d 1181 (Or. 2004).
· cites it 3× “Moylett, 313 Or 540, 547-48, 556 , 836 P2d 1329 (1992) (allowing evidence of chemical blood analysis in regard to assault and criminal mischief charges but suppressing same evidence in regard to DUII charge because evidence had not been obtained pursuant to ORS 813.140); see…”
State v. Bloom, 172 P.3d 663 (Or. Ct. App. 2007).
· cites it 5× “Moylett, 313 Or 540, 546-47 , 836 P2d 1329 (1992) (requiring *249 suppression of blood test results obtained without express consent or probable cause in violation of ORS 813.140); State v. Heintz, 286 Or 239, 254 , 594 P2d 385 (1979) (holding same under earlier version of…”
State v. Eumana-moranchel, 277 P.3d 549 (Or. 2012).
· cites it 2× “100, ORS 813.140, or ORS 813.150 must itself show that a person has a BAC of .”
State v. Smith, 462 P.3d 310 (Or. Ct. App. 2020).
· cites it 2× “The court explained that, when an officer asks a driver whether she or he will take a breath test, the question “may be either (1) a request under ORS 813.140 for express consent to search the driver’s breath that, if given, will supply a constitutional basis for the test; or…”
Bobeck v. Idaho Transp. Dep't, 363 P.3d 861 (Idaho Ct. App. 2015).
· cites it 2× “§ 39-20-03 (West 2015); Or. Rev. Stat. Ann. § 813.140 (West 2015).”
State v. King, 834 P.2d 463 (Or. Ct. App. 1992).
· cites it 4× “Additionally, a defendant may have taken a chemical test, as provided in ORS 813.140 or ORS 813.150. It is not necessary that the jurors all agree on one body of evidence or the credibility of a witness in order to agree unanimously that a defendant was under the influence of…”
State v. Cabanilla, 273 P.3d 125 (Or. 2012).
“ORS 813.140 provides that a police officer may collect the blood or urine of an unconscious person without that person’s consent, and without having first advised that person of the rights and consequences of refusing, under certain circumstances: “Nothing in ORS 813.”
State v. Reddish, 715 P.2d 495 (Or. Ct. App. 1986).
· cites it 3× “835(2) was repealed by Or Laws 1983, ch 338, § 978 (effective January 1,1986), and reenacted as ORS 813.140, Or Laws 1985, ch 16, § 299. 2 Defendant does not challenge the validity of the warrantless testing of her blood done at the hospital, so we do not consider this issue.”
— Or. Rev. Stat. § 813.140(1) — 1 case
— Or. Rev. Stat. § 813.140(2) — 1 case
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