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LEGAL BRIEFS: Driving Under the Influence of Police Warnings
Constitutionality of Oregon's Implied Consent Law Thrown into Doubt

In a surprise October 2009 ruling, the Oregon Court of Appeals questioned the constitutionality of the state's implied consent law. The Court ruled Thomas Machuca's consent to an alcohol test was coerced because he agreed to have his blood drawn after an officer informed him of the penalties for not consent-ing. In a 6-4 decision, the Court found the consent was not voluntary and the test should be suppressed.

Current law requires that licensed drivers consent to a breath, blood or urine test when arrested for driving under the influence of intoxicants (DUII). Refusal to consent can be used as evidence in court, and results in a one-year license suspension and $1,000 fine. Under the law, officers are required to inform people of the consequences of refusing to consent to submitting to a blood- alcohol test (Oregonian, October 3).

In 2005, Machuca was injured in an accident in Portland. At the hospital, an officer told him he was under arrest for DUII and reckless driving. The officer testified there was a strong smell of alcohol and Machuca was aware that he had been in an accident. Machuca was informed of his rights and the state's implied consent law, including the penalties for refusing. He consented to the test.

The appellate court reversed the trial court's refusal to suppress evidence of the blood test based on State v. Newton, a 28-year-old Oregon Supreme Court case which held that consent motivated by the "fear of adverse consequences" is "coerced" and runs afoul of 4th Amendment protections against unreasonable search or seizure.

The court noted that the officer could have obtained a warrant within an hour by phone. Therefore, there was no emergency to draw the blood.

Since the ruling, the DA and City Attorney issued new guidelines to Portland Police for DUIIs. If a suspect consents to a breathalyzer, the implied consent warning is not given. An officer can seek a warrant from a judge for a blood test "in cases toward the worse end of the spectrum." If a suspect refuses a breath test, the officer will read the implied consent warning "in a neutral manner." If the suspect agrees to the test, police are to administer it, but only if "the atmosphere is such that a reasonable person would feel free to refuse" (Willamette Week, October 7). The new guidelines are in progress and may have already been revised.

  People's Police Report

January, 2010
Also in PPR #49

Lawsuits Include $175,000 for Gun Pointing
Chasse Case Stirs More Controversy
"Sidewalk Managment Plan": Sit/Lie 4.0
New Developments at "Review Board"
First PPB Shooting in 1.3 Years
6th Cop Leaves Force for Sexual Misconduct
Chief Gives Racial Profiling Plan to Council
Homeless Camp Outside City Hall
  • Cops and "Cops" Raid St. Francis Dining Hall
Not So Secret List
Legal Briefs: Driving Under Police Warnings
Quick Flashes #49
  • Taser Changes Policy: Chest Zaps Can Kill
  • New Sheriff Dealing with Scandals
  • Nazi-Loving Cop Back in Headlines
Rapping Back #49

Portland Copwatch
PO Box 42456
Portland, OR 97242
(503) 236-3065/ Incident Report Line (503) 321-5120
e-mail: copwatch@portlandcopwatch.org

Portland Copwatch is a grassroots, volunteer organization promoting police accountability through citizen action.

People's Police Report #49 Table of Contents
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