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Oregon Legislation

813.010 Driving Under the Influence of Intoxicants[1]

(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

(a) Has 0.08 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 (Implied consent to breath or blood test), 813.140 (Chemical test with consent) or 813.150 (Chemical test at request of arrested person);

(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or

(c) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.

(2) A person may not be convicted of driving while under the influence of intoxicants on the basis of being under the influence of a controlled substance or an inhalant unless the fact that the person was under the influence of a controlled substance or an inhalant is pleaded in the accusatory instrument and is either proved at trial or is admitted by the person through a guilty plea.

(3) A person convicted of the offense described in this section is subject to ORS 813.020 (Fee to be paid on conviction) in addition to this section.

(4) Except as provided in subsection (5) of this section, the offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any premises open to the public.

(5)(a) Driving while under the influence of intoxicants is a Class C felony if the current offense was committed in a motor vehicle and the person has, at least three times in the 10 years prior to the date of the current offense, been convicted of, or been found to be within the jurisdiction of the juvenile court for an act that if committed by an adult would be, any of the following offenses in any combination:

(A) Driving while under the influence of intoxicants in violation of:

(i) This section; or

(ii) The statutory counterpart to this section in another jurisdiction.

(B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicating liquor, a controlled substance, an inhalant or any combination thereof.

(C) A driving offense in another jurisdiction that involved operating a vehicle, an aircraft or a boat while having a blood alcohol content above that jurisdictions permissible blood alcohol content.

(b) For the purposes of paragraph (a) of this subsection, a conviction or adjudication for a driving offense in another jurisdiction based solely on a person under 21 years of age having a blood alcohol content that is lower than the permissible blood alcohol content in that jurisdiction for a person 21 years of age or older does not constitute a prior conviction or adjudication.

(6) In addition to any other sentence that may be imposed, the court shall impose one or more of the following fines on a person convicted of driving while under the influence of intoxicants as follows:

(a) For a persons first conviction, a minimum of $1,000.

(b) For a persons second conviction, a minimum of $1,500.

(c) For a persons third or subsequent conviction, a minimum of $2,000 if the person is not sentenced to a term of imprisonment.

(d) For a person who drives a vehicle while the person has 0.15 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 (Implied consent to breath or blood test), 813.140 (Chemical test with consent) or 813.150 (Chemical test at request of arrested person), a minimum of $2,000.

(7) Notwithstanding ORS 161.635 (Fines for misdemeanors), $10,000 is the maximum fine that a court may impose on a person convicted of driving while under the influence of intoxicants if:

(a) The current offense was committed in a motor vehicle; and

(b) There was a passenger in the motor vehicle who was under 18 years of age and was at least three years younger than the person driving the motor vehicle. [1983 c.338 §587; 1985 c.16 §293; 1987 c.138 §5; 1991 c.835 §7; 1999 c.619 §3; 1999 c.1049 §1; 2003 c.14 §495; 2003 c.445 §1; 2007 c.879 §3; 2009 c.525 §1; 2009 c.613 §1]

Manslaughter I

ORS 163.118[2]

(1) Criminal homicide constitutes manslaughter in the first degree when:

(a) It is committed recklessly under circumstances manifesting extreme indifference to the value of human life;

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(d) It is committed recklessly or with criminal negligence by a person operating a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 (Driving under the influence of intoxicants) and:

(A) The person has at least three previous convictions for driving while under the influence of intoxicants under ORS 813.010 (Driving under the influence of intoxicants), or its statutory counterpart in any jurisdiction, in the 10 years prior to the date of the current offense; or

(B) (i) The person has a previous conviction for any of the crimes described in subsection (2) of this section, or their statutory counterparts in any jurisdiction; and (ii) The victims serious physical injury in the previous conviction was caused by the person driving a motor vehicle.

(2) The previous convictions to which subsection (1)(d)(B) of this section applies are:

(a) Assault in the first degree under ORS 163.185 (Assault in the first degree);

(b) Assault in the second degree under ORS 163.175 (Assault in the second degree); or

(c) Assault in the third degree under ORS 163.165 (Assault in the third degree).

(3) Manslaughter in the first degree is a Class A felony.

(4) It is an affirmative defense to a charge of violating:

***

(b) Subsection (1)(d)(B) of this section that the defendant was not under the influence of intoxicants at the time of the conduct that resulted in the previous conviction. [1975 c.577 §2; 1981 c.873 §6; 1997 c.850 §3; 2007 c.867 §2; 2011 c.291 §2]

[edit]

Aggravated Vehicular Homicide

ORS 163.149

(1) Criminal homicide constitutes aggravated vehicular homicide when it is committed with criminal negligence, recklessly or recklessly under circumstances manifesting extreme indifference to the value of human life by a person operating a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 and:

(a) The person has a previous conviction for any of the crimes described in subsection (2) of this section, or their statutory counterparts in any jurisdiction; and

(b) The victim’s death in the previous conviction was caused by the person driving a motor vehicle.

(2) The previous convictions to which subsection (1) of this section applies are:

(a) Manslaughter in the first degree under ORS 163.118;

(b) Manslaughter in the second degree under ORS 163.125; or

(c) Criminally negligent homicide under ORS 163.145.

(3) It is an affirmative defense to a prosecution under this section that the defendant was not under the influence of intoxicants at the time of the conduct that resulted in the previous conviction.

(4) Aggravated vehicular homicide is a Class A felony. [2007 c.867 §1]

Oregon DUII Case Update

New York’s driving statute prohibiting “driving while ability impaired” is a counterpart to the Oregon DUII statute, and thus renders a defendant ineligible for diversion if she was convicted under the other state’s statute within the past 10 years. Both statutes serve the same purpose of prohibiting alcohol-impaired driving and provide alternatives to using BAC to determine when a driver is “impaired”. This is true even though the New York law is only an infraction. State v. Donovan , (May 2011)

Defendant was charged with DUII and had two prior Oregon convictions for the same offense on his record. The first conviction was from 1981, and was obtained under former ORS 487.540. At sentencing, defendant argued that the plain terms of ORS 809.235 precluded the court from relying on his 1981 conviction as a predicate offense for permanent license revocation. Both the trial court and the COA rejected defendant’s argument. The Court essentially employs a “contextual” approach to statutory construction in rejecting defendant’s argument that the legislature’s use of the phrase “in violation of ORS 813.010″ was meant to narrow the class of in-state convictions that may serve as a predicate to revocation. After employing this analysis, the Court holds that “we are persuaded by the text and context of ORS 809.235 that a misdemeanor DUII conviction in violation of former ORS 487.540 counts as a predicate conviction for the purposes of permanent revocation of a person’s driver’s license.” Affirmed.  State v. Kellar, (Feb, 2011

Where an expert witness, in a DUII trial, uses Widmark’s formula (a generally accepted method for calculating the rate of alcohol absorption and dissipation) and back extrapolation of BAC as a basis for testimony that establishes the BAC of a defendant within a time range, that testimony is admissible if it is derivative of a chemical analysis performed on the breath or blood. This derivation is required by ORS 813.010(1)(a)State v. Eumana-Moranchel , (June 2011)

By testifying that he refused to take the breath test because he was unable to reach his lawyer and get his advice, the defendant opened the door to comment on his refusal and the reasons for it. Any prejudicial quality of the evidence was cured by an instruction that the jury should not use his refusal to infer guilt. State v. Robinson , (July 2011)

An exigent circumstances exception to the warrant requirement did not exist where an officer ordered defendant out of his house for a suspected DUII and threatened to arrest him if he didn’t comply. The fact that he had probable cause to arrest defendant for DUII did not relieve the officer of his duty to get a warrant.  State v. Brossart, (Sept, 2011)

Where the DUII statute required a fee of $130.00, it was plain error to impose a fee of $230.00. State v. Wilson , (Sep. 2011)

A Miles instruction should not be given in the absence of evidence that defendant’s physical condition made him more susceptible to alcohol. Even in a bench trial. No new law here. Just a new trial. State v Massey (May, 2012)

DRE Officer’s testimony that defendant was under the influence of a narcotic analgesic was admissible as nonscientific expert opinion in DUII case. Where the DRE officer testified as to admissible portions of a DRE procedure, his ultimate opinion was not did not have the “imprimatur of science” because the officer did not rely on the vocabulary of science or suggest that his opinion was based on the scientific method. State v. Rambo, (May 2012)

Where a DUII defendant seeks to impeach officers using the NHTSA (National Highway Traffic Safety Administration’s) field sobriety manual, OEC 706 does not require that the witness being cross-examined be personally familiar with the manual if its reliability is established in another way. The evidence (1) was not hearsay because it was for impeachment, (2) had proper foundation because one deputy acknowledged that the manual was authoritative, and (3) was relevant to the defense that the defendant’s prescribed ADHD medicine, Concerta, did not impair his driving. State v. Morgan (July 2012)


[1] Oregon Legislation can be found here: http://www.leg.state.or.us/ors/home.html

the DUII statute is located here: http://www.leg.state.or.us/ors/813.html

[2] Link to the Oregon “person crimes” statute here: http://www.leg.state.or.us/ors/163.html

 

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