Oregon celebrates 4th, gun to your head, needle in your arm...

[solv3nt]

If I read that correctly - you must be placed under arrest before they can compel you to be tested, and invoke the implied consent law. They can't just randomly say "hoot in the box" if they stop you for speeding or some such thing.

I do not believe that you are reading it correctly, during a stop, if a police officer suspects you of driving under intoxicants, they can demand that you blow. Implied consent is not something that gets invoked, its part of the terms that you agree to when you get behind the wheel in Oregon.

Again, I'm not a lawyer, so your refusal or acceptance of a test is on you; talk to your lawyer...

 

[Mark W.]

One of the drivers at work refused a breath test and refused the blood test. The results were his license was suspended for a year. his CDL was Suspended. And after a couple weeks trying to make other work for him in the construction company he lost his job.

And if you think your being picked on I as a CDL holder can only blow .04% no matter what I am driving. So at 280lbs with a meal I get two 16oz beers and I am done for the evening and still have a decent safety margin.

 

[soberups]

If you re-read the article, all it is doing is putting spin and a scary-sounding headline on what has always been a routine crackdown on drunk driving during the 4th of July holiday.

There is no "forced" blood draw, they will only draw blood if you refuse to blow which under the implied consent law will cost you an automatic one-year suspension.

I am all for civil liberties but the reality is that we do not have a Constitutional right to operate a motor vehicle on a public highway, driving is and ought to be a privilege that carries with it certain responsibilities, one of which is to be sober while piloting a 5,000 lb. motor vehicle down the highway at 65MPH.

 

[jvp]

they have always had the option to take you in for a blood test. i would be against them doing it on the side of the road though.

 

[Martini_Up]

Driving in Oregon is a privilege, not a right. One of the items that you agree to when you are issued an ODL, is that you are consenting to a breath test when asked for by a police officer. Failure to comply is grounds for an immediate one year suspension of your driving privileges. Also, failing to comply can lead to your arrest, where it is much easier for the police to get a warrant for your BAC.

Your logic would state that buying a firearm at a gun shop is a privilege too as you're filling out a 4473 as well as a background check. Failure to do so means you walk out of the shop empty handed.

Here's some reading to try to change your mind on driving and perhaps open you up to the possibility that your government wants to take away rights and replace them with privileges in an effort to completely control us all;

"Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience. - Chicago Motor Coach v Chicago 169 NE 22
("Regulated" here means traffic safety enforcement, stop lights, signs, etc. NOT a privilege that requires permission i.e.- licensing, mandatory insurance, vehicle registration, etc.)

"The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common right which he has under the right to life, liberty, and the pursuit of happiness."Thompson v Smith 154 SE 579

"The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the 5th Amendment."Kent v Dulles, 357 U.S. 116, 125.

 

[solv3nt]

Your logic would state that buying a firearm at a gun shop is a privilege too as you're filling out a 4473 as well as a background check. Failure to do so means you walk out of the shop empty handed.

Here's some reading to try to change your mind on driving and perhaps open you up to the possibility that your government wants to take away rights and replace them with privileges in an effort to completely control us all;

"Even the legislature has no power to deny to a citizen the right to travel upon the highway and transport his property in the ordinary course of his business or pleasure, though this right may be regulated in accordance with the public interest and convenience. - Chicago Motor Coach v Chicago 169 NE 22
("Regulated" here means traffic safety enforcement, stop lights, signs, etc. NOT a privilege that requires permission i.e.- licensing, mandatory insurance, vehicle registration, etc.)

"The right of the citizen to travel upon the public highways and to transport his property thereon, either by carriage or by automobile, is not a mere privilege which a city may prohibit or permit at will, but a common right which he has under the right to life, liberty, and the pursuit of happiness."Thompson v Smith 154 SE 579

"The right to travel is a part of the liberty of which the citizen cannot be deprived without due process of law under the 5th Amendment."Kent v Dulles, 357 U.S. 116, 125.

Good luck refusing to blow.

 

[Martini_Up]

Good luck refusing to blow.

and good luck walking out of a gun store with a firearm without filling out a 4473 as well as passing the background check

 

[solv3nt]

and good luck walking out of a gun store with a firearm without filling out a 4473 as well as passing the background check

Ummm.. I never said that I refused to fill out a 4473...

 

[Martini_Up]

Ummm.. I never said that I refused to fill out a 4473...

and nor did I refuse to submit to sobriety testing.

 

[solv3nt]

Your logic would state that buying a firearm at a gun shop is a privilege too as you're filling out a 4473 as well as a background check. Failure to do so means you walk out of the shop empty handed.

Here's some reading to try to change your mind on driving and perhaps open you up to the possibility that your government wants to take away rights and replace them with privileges in an effort to completely control us all;

Right or wrong, we don't have a constitutional right to drive. Right or wrong, it is currently a "privilege" to drive, which is subject to an on demand blow. The only way that it will change, is if a lawsuit is brought against the state.

 

[PORSCHE928S4]

If you are not drinking and driving you do not have to worry about it ! If you need to drink get a bottle of something good for you and your liver something in the 15-20 dollar range and do everyone else a favor and don't drive !!!!!! If you need to get some smokes or more alcohol take a cab any moron can figure out a $50 cab ride is better than a $15,000.00 tab for a lawyer and all of the fines . If you choose to do your own thing you may have been lucky you will get caught hopefully sooner than later .

 

[Martini_Up]

Right or wrong, we don't have a constitutional right to drive. Right or wrong, it is currently a "privilege" to drive, which is subject to an on demand blow. The only way that it will change, is if a lawsuit is brought against the state.

All true. The point you ignored or didn't understand is that rights and privileges are now indistinguishable, some rights are called privileges and other rights are 'common sense regulated'.

what we need are more patriots and less internet blow-hards. I'm sure that is something everyone can agree..

 

[mkwerx]

I do not believe that you are reading it correctly, during a stop, if a police officer suspects you of driving under intoxicants, they can demand that you blow. Implied consent is not something that gets invoked, its part of the terms that you agree to when you get behind the wheel in Oregon.

Again, I'm not a lawyer, so your refusal or acceptance of a test is on you; talk to your lawyer...

*********************************************************************************************
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) No chemical test of the person's breath or blood shall be given, under subsection (1) of this section, to a person under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance, if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of consequences and rights as described under ORS 813.130.

(3) If a person refuses to take 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, 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.

******************************************************************************************

Bolded the parts that seem to point to there needing be an arrest before the cops can compel you to blow. It seems to me that without an arrest, the police could request but not require you to blow. The language of the law repeats the word "arrested" - and says nothing about giving police the authority to force you to blow without being placed under arrest for duii (or "suspicion of duii") If they don't have enough evidence to make the arrest without the breath/blood, I see 4th & 5th amendment issues here, despite the implied consent law. I can see it becoming an expensive, nasty, tangle of a legal battle should someone wind up in that situation.

Every ride along that I've done and the officer made a DUII stop - the person was arrested then taken to jail or back to the PD to be tested - never asked to blow before being arrested. They always were given field sobriety tests and questioned, and once the officer was satisfied the person was driving under the influence, they were cuffed & stuffed in the car. The officers/deputies always made sure to carefully track the time from the initial stop, to the arrest, to getting to jail and actually testing as well - to account for metabolization of the alcohol in the person's system.


And Mark W, I know the scrutiny as well, as I'm a CDL driver too. I'm also a non-drinker, so this discussion is academic for me, rather than something I worry about. I to have an issue with the police demanding blood/breath/stool/sperm/urine/hair/skin/teeth or nude pix of my wife without a warrant, or without at least an arrest being made for a crime. Driving is a privilege yes, but state law can't supersede the constitution. I do believe though, that as written and quoted the law only allows for these mandatory tests once you've been arrested. If you refuse the tests, you loose your license and you're a tard. Even if you somehow prevail and beat a DUII charge, your refusal still gets you a 1 year suspension and a hardship permit at best. And if you're dumb enough to drive outside the bounds of your hardship permit, or driving on a suspended license, I've got no sympathy when you're picked up and hit with more criminal charges.

I've driven a tow truck for almost 10 years and worked enough DUII wrecks to have zero sympathy for drunk drivers. Being arrested and spending a few grand in legal bills is getting away light, in my opinion.

 

[solv3nt]

*********************************************************************************************
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) No chemical test of the person's breath or blood shall be given, under subsection (1) of this section, to a person under arrest for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance, if the person refuses the request of a police officer to submit to the chemical test after the person has been informed of consequences and rights as described under ORS 813.130.

(3) If a person refuses to take 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, 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.

******************************************************************************************

Bolded the parts that seem to point to there needing be an arrest before the cops can compel you to blow. It seems to me that without an arrest, the police could request but not require you to blow. The language of the law repeats the word "arrested" - and says nothing about giving police the authority to force you to blow without being placed under arrest for duii (or "suspicion of duii") If they don't have enough evidence to make the arrest without the breath/blood, I see 4th & 5th amendment issues here, despite the implied consent law. I can see it becoming an expensive, nasty, tangle of a legal battle should someone wind up in that situation.

Every ride along that I've done and the officer made a DUII stop - the person was arrested then taken to jail or back to the PD to be tested - never asked to blow before being arrested. They always were given field sobriety tests and questioned, and once the officer was satisfied the person was driving under the influence, they were cuffed & stuffed in the car. The officers/deputies always made sure to carefully track the time from the initial stop, to the arrest, to getting to jail and actually testing as well - to account for metabolization of the alcohol in the person's system.


And Mark W, I know the scrutiny as well, as I'm a CDL driver too. I'm also a non-drinker, so this discussion is academic for me, rather than something I worry about. I to have an issue with the police demanding blood/breath/stool/sperm/urine/hair/skin/teeth or nude pix of my wife without a warrant, or without at least an arrest being made for a crime. Driving is a privilege yes, but state law can't supersede the constitution. I do believe though, that as written and quoted the law only allows for these mandatory tests once you've been arrested. If you refuse the tests, you loose your license and you're a tard. Even if you somehow prevail and beat a DUII charge, your refusal still gets you a 1 year suspension and a hardship permit at best. And if you're dumb enough to drive outside the bounds of your hardship permit, or driving on a suspended license, I've got no sympathy when you're picked up and hit with more criminal charges.

I've driven a tow truck for almost 10 years and worked enough DUII wrecks to have zero sympathy for drunk drivers. Being arrested and spending a few grand in legal bills is getting away light, in my opinion.

You're ignoring this law:
813.130 Rights of and consequences for person asked to take test. This section establishes the requirements for information about rights and consequences for purposes of ORS 813.100 and 813.410. The following apply to the information about rights and consequences:
(1) The information about rights and consequences shall be substantially in the form prepared by the Department of Transportation. The department may establish any form it determines appropriate and convenient.

(2) The information about rights and consequences shall be substantially as follows:

(a) Driving under the influence of intoxicants is a crime in Oregon, and the person is subject to criminal penalties if a test under ORS 813.100 shows that the person is under the influence of intoxicants. If the person refuses a test or fails, evidence of the refusal or failure may also be offered against the person.

(b) The person will fail a test under ORS 813.100 for purposes of criminal penalties if the test discloses a blood alcohol content of 0.08 percent or more by weight. The person will fail a test for purposes of the Motorist Implied Consent Law if the test discloses a blood alcohol content of:

(A) 0.08 percent or more by weight if the person was not driving a commercial motor vehicle;

(B) 0.04 percent or more by weight if the person was driving a commercial motor vehicle; or

(C) Any amount if the person was under 21 years of age.

(c) If the person refuses or fails a test under ORS 813.100, the person's driving privileges will be suspended. The outcome of a criminal charge for driving under the influence of intoxicants will not affect the suspension. The suspension will be substantially longer if the person refuses a test.

(d) If the person refuses a test or fails a breath test under ORS 813.100 and has an Oregon driver license or permit, the license or permit will be taken immediately and, unless the person does not currently have full valid driving privileges, a temporary driving permit will be issued to the person.

 

[PiratePast40]

Not a lawyer, never been on TV, and rarely stay in Holiday Inns so may be off base here. Just seems to me that 813.100 is the controlling citation, not .130. In fact, the bolded areas of .130 refer to actions under .100, and that requires an arrest to perform or offer a test. If that's the case, there is no penalty for refusal unless a person is placed under arrest.

 

[RicInOR]

I am not seeing this - so if someone has the answer could you please share.

These are check points, right? - you are forced to stop with out any other reason than it is a "sobriety check point" Stopping everyone.
You can blow - which I would think is protected by the 5th Amendment forced to testify against yourself, but apparently it is not.
Or you can have a blood draw.

Will they destroy the DNA immediately after the test, or did you surrender it for any purpose they choose (like you do by spitting out some gum) ?



The laws cited above are for those cases where you come to the attention of LEO by swerving, failing to use your lights, or what ever. They had reason to stop you. Then you must submit to the blow / draw test. Road side tests are not as accurate; you may want the blood draw if you were stopped for cause.

 

[PiratePast40]

With fishing yesterday with a retired highway officer and I asked him about this. The law does in fact only take affect AFTER you have been arrested. Traffic stops and checkpoints are to determine if there is cause for arrest. For traffic stops, there is typically a suspicion of something and the checkpoints have been determined lawful. Agree or disagree, that's the current law. Point is, the field sobriety tests and even the hand held testers police carry in their cars are for determining probable cause, and help determine if an arrest is warranted. You can refuse either one without penalty under implied consent. However, if the cop is suspicious enough to have you perform the tests, and you refuse, a trip downtown is most likely in your immediate future.