• Criminal vs administrative law
• Criminal DUII law
• Elements of DUII
• Basis for arrest
• Penalties
• Diversion
• Implied consent law
• Failure of a chemical test
• Required elements for licence suspension
• Offences and consequences
• Right to an independent test
• Actions on Miranda invocation
• Standard DUII: prior to SFST
• Standard DUII: post to SFST
• Motor vehicle accident

• A person can be too intoxicated to safely operate a motor vehicle at a BAC lower than 0.08%
• Under criminal DUII law, the standard for intoxication is exactly the same regardless of age.
• “Zero tolerance” exception for underage drinking drivers only refers to the administrative license suspension process
• An officer can't testify to an estimated BAC based solely on SFST performance
• An officer may immediately suspend a driver’s license under Oregon’s Implied Consent Laws.
• This is the administrative blood alcohol limit
• 0.08% BAC (or greater) doesn't mean an assured criminal conviction
• Documented existence of “impairment” in conjunction with a 0.08% BAC (or greater) is always needed in criminal court.
• Lower BACs may be used to prosecute but must be combined with documented clues of impairment.
• An officer must witness “impairment” in a DUII case because an officer’s observations of impairment are necessary to develop probable cause for the arrest & subsequent search of the person believed to be DUII
• The “Right to Counsel” applies to criminal DUII law.
• This relates to a person’s guaranteed right to contact an attorney by phone when placed under arrest and the person requests such contact.
• A request to speak to counsel should be granted.
• Right to privacy
• The “Right to Communicate” applies to administrative (Implied Consent) law.
• This relates to affording a person the reasonable opportunity to communicate with anyone regarding the decision to take a test
• No right to privacy, but it should be given.

• BAC 0.08% or more by breath or blood test [per se element]
• Under influence of intoxicating liquor, cannabis, a controlled substance or an inhalant
• Under the influence combination of above

• All arrests must be based on PC.
• Impairment equals PC
• Without PC (impairment), a person cannot legally be arrested for DUII.
• Without PC (impairment), a person cannot legally be searched by being requiring to submit to a blood or breath test

• A DUII is a Class A misdemeanour
• A DUII is a felony when the subject has:
• 2 prior convictions for DUII in the prior 10 years in any jurisdiction
• 90 days minimum jail
• 3 prior convictions for DUII in the prior 10 years in any jurisdiction
• presumptive prison for 3 or more years
• In addition to any other sentence a minimum fine of:
• 1st conviction: $1000.00.
• 2nd conviction: $1500.00
• 3rd or subsequent conviction: $2000.00 if the person is not sentenced to a term of imprisonment.
• If BAC >=0.15%: Minimum fine is $2000.00

• Don't give advice to an arrested person about “Diversion”.
• When asked about eligibility, etc., direct the subject to an attorney or to the DMV.
• Document ANY injuries, especially the arrest involves a crash that did, or might, result in death or physical injury to any person other than the defendant.
• This is necessary documentation for the DA to ensure that the defendant does NOT qualify for a “Diversion” agreement

• An agreement between the defendant and the Court in which the State will forego prosecution and sentencing for a one year period of time in exchange for the defendant’s agreement to complete certain requirements.
• Defendant must agree to plead guilty to the crime of DUII.
• During this one year the subject may also be required to:
• Be evaluated by a substance abuse counsellor.
• Participate in an alcohol abuse education class while abstaining from all intoxicants.
• Pay all associated fees and fines imposed by the Court.
• Not have alcohol in their system while driving a vehicle for a period of one year.
• Required to install ignition interlock device if the person has driving privileges.
• If the Defendant meets all of the Court’s requirements, at the end of one year:
• The DUII charge will be dismissed, but the charge stays on the person’s record.
• The diversion does not, however, count as an enhancement factor (prior DUII) for a felony DUII.
• If the subject doesn't complete the Diversion agreement, the Court will convict and sentence the subject to the offence of DUII.

• The present DUII didn't involve a crash resulting in death or physical injury to any person other than the defendant
• No pending DUII offence in any jurisdiction
• No prior conviction for DUII in any jurisdiction within 15 years
• Not participating in a DUII diversion program in any jurisdiction
• Not participated in a DUII diversion program in any jurisdiction within 15 years;
• No pending or prior conviction for murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle for 15 years in any jurisdiction
• Generally a person is eligible for diversion on their first arrest for DUII.
• The court may also take into consideration whether the person would be a good candidate for diversion.

Do not use implied consent If someone other than the suspect is seriously injured or killed

• BAC 0.08% or more if not driving a commercial motor vehicle
• BAC 0.04% or more if driving a commercial motor vehicle
• Any amount if under 21 years of age.

• The person is under arrest for DUII
• The person operated a motor vehicle upon a public highway or a premise open to the public.
• The police had “Probable Cause” to make the arrest
• The person had been informed of rights and consequences.
• person refused the test or failed the test with:
• 0.08% or more if not driving a commercial motor vehicle;
• 0.04% or more if driving a commercial motor vehicle; or
• Any amount if under 21 years of age.
• The person administering the test is qualified.
• Breath testing methods, procedures and instrument used were all approved by Oregon State Police.

• Non-commercial driver
• Failure
• 90 day suspension
• 1 year if within the last 5 years:
• Convicted of DUII
• Had driving privileges suspended under Implied Consent Law
• Participated in a DUII diversion or similar program
• Refusal
• 1 year
• 3 years if within the last 5 years:
• Convicted of DUII
• Had driving privileges suspended under Implied Consent Law
• Participated in a DUII diversion or similar program
• Commercial driver
• Faillure
• 1 year
• 3 years, if hazardous materials are involved
• Lifetime, if subject has a prior CDL suspension
• Refusal
• 3 years
• 5 years, if hazardous materials are involved
• Lifetime, if subject has a prior CDL suspension
• Refusal of a urine test
• Treated as a breath test refusal.
• Suspension will be consecutive to any other Implied Consent suspension
• Waiting
• Failure to submit to a breath test or to provide a urine sample results in a $650 fine (813.095)
• Not eligible for a hardship permit for at least 90 days, & possibly more (813.130(3)(d))

• A subject has the right to an independent chemical test
• No such right if the subject refuses o take the chemical test requested by the officer
• The subject must be give a reasonable opportunity to a test
• Officers should use “reasonable person standard”.
• The test will be at the expense of the subject.
• The person administering the chemical test must be qualified
• The failure or inability to obtain an independent test or tests by a person will not preclude the admission of evidence relating to a test or tests taken upon the request of a police officer
• This doesn’t mean that an officer can deny the subject a reasonable opportunity to obtain an independent test.
• DO NOT simply book the person in jail and assume they will be released in a reasonable amount of time to get an independent test

• Ask any more questions:
• Ask them to perform field sobriety tests
• Read the Rohrs Admonishment

• Make the arrest
• Throughly document observations of impairment
• Once at the station:
• Get a warrant and include in the warrant a request for breath and/or blood
• If you believe at the outset that drugs are involved include urine in the warrant.
• Do NOT read implied consent
• If the subject chooses to provide a breath sample pursuant to the warrant, but the results are inconsistent with the impairment observed:
• Get blood
• If the warrant includes urine, ask the defendant for urine if they are willing to provide it
• Make sure to include language for the testing of whatever sample is obtained

• Do not ask any more questions.
• Do not ask for consent for a breath test
• Get a warrant for breath and blood
• if you believe at the outset that drugs are involved include urine in the warrant
• Do NOT read implied consent
• If the subject chooses to provide a breath sample pursuant to the warrant, but the results are inconsistent with the impairment observed:
• Also get blood
• If the warrant includes urine, ask the defendant for urine if they are willing to provide it
• Make sure to include language for the testing of whatever sample is obtained.

• If someone other than the defendant is killed or injured AND the defendant invokes
• do not ask them any more questions.
• Do NOT
• Ask for consent to perform SFST
• Read the Rohrs Admonishment
• Ask for consent for a blood draw
• Obtain the suspect’s blood pursuant to PC and Exigency
• At the same time have an officer working on the warrant draw. Include in the warrant:
• The seizure of any hospital draw that was taken and
• The testing of the exigency draw, warrant draw and any hospital draw if one was taken
• Very carefully document all grounds for PC and the foundation for exigency
• XXXSee exigency worksheet.
• Do NOT read implied consent
• If the defendant is the only one injured AND the defendant invokes
• Don't ask any more questions.
• Depending on the circumstances, get blood evidence pursuant to PC and exigency and,
• In every case, get a warrant. Include in the warrant:
• The seizure of any hospital draw that was taken and
• The testing of any sample taken
• Very carefully document all grounds for PC and the foundation for exigency if an exigency draw was taken.
• Do NOT read implied consent