In a September 30, 2009, Oregon Court of Appeals ruling, the court equated implied consent laws with coercion, calling into question the constitutionality of state rules mandating consent to intoxicant testing as a condition for obtaining a license.
Oregon’s implied consent law says anyone licensed to drive is considered to have consented in advance to any future breath, blood, or urine testing, should they ever be arrested for driving under the influence of intoxicants. It also states that if a driver tries to revoke that consent by refusing the tests, this refusal may be used as evidence in court.
Indeed, refusing consent carries harsher penalties than driving drunk. A breath test showing .08 or higher typically results in a 90-day suspension, but refusing the test in the first place can stretch the suspension to a year. The law was designed to help police get drunk drivers off the streets.
But for now, things may change.
In the appellate case, State of Oregon v. Machuca (A133362), Thomas Machuca was accused of driving impaired. He did, in fact, consent to a blood test. Before he agreed, however, the arresting officer read him the penalties for refusing the test – a requirement under Oregon law. And this, the court said in a 6-4 decision, rendered the blood test involuntary; because Machuca was under pressure to consent, the results should have been suppressed. The court further noted that police should have obtained a search warrant before administering the test.
While defense lawyers hailed the decision as a groundbreaking affirmation of personal liberties, in particular the constitutional guarantee against self-incrimination, prosecutors expressed concern and vowed to appeal.
Clatsop County District Attorney Josh Marquis told The Oregonian that the ruling “could pose an enormous challenge to DUII prosecution. The whole concept of the implied consent law is that driving is a privilege, not a right.” And Multnomah County Deputy District Attorney Adam Gibbs added, in comments to Willamette Week, “We potentially lost the blood alcohol content in every single open DUI [case].”
But defense attorney John Henry Hingson III supports the decision, telling KATU.com, “There is no drunk driving exception to the Constitution.” Hingson, author of an out-of-print book titled How to Defend a Drunk Driving Case: A Guide to Practical, Procedural and Legal Aspects, added that the case “is a reaffirmation of the strength of the Constitution of the State of Oregon and the Constitution of the United States.”
Willamette Week reports that State Attorney General John Kroger plans to petition the Oregon Supreme Court for review. A spokesman for the attorney general confirmed, “Given the significant on-the-ground impact of the ruling, we are working quickly on getting our appeal together.”
Portland police vow to continue arresting drunk drivers. But one of the dissenting judges, Appellate Judge Rick T. Haselton, cited the Catch-22 for police: if an officer goes by the statute, it’s “coercive,” but if they don’t, they’re violating the law.
We at Shulman DuBois LLC, however, have faith that the decision will be overturned in the Supreme Court. Until then, we believe the police will continue to do their job to arrest the suspect, get a warrant, and then perform a breathalyzer or blood test.
The coda to the story comes with a horrifying twist: the appellant, according to wweek.com, Machuca, didn’t even wait for the ruling before getting behind the wheel drunk yet again. In an appalling footnote to this case, Machuca was charged with another DUII September 19. He has pleaded not guilty.