In the ever-changing area of Oregon DUI law, things just got a bit more interesting. On September 30th, The Court of Appeals held that the Implied Consent Warning is coercive. In State v. Machuca, the court held that because the defendant was threatened with economic harm and loss of privileges, his consent was not voluntary.
Machuca was a blood draw case, but the same reasoning should apply to breath test cases. The court of appeals did justify a test under the exigent circumstances exception to the warrant requirement.
So far, the shakeout from this decision is unclear. Many trial judges are still allowing breath tests into evidence. I believe there is a strong argument that exigent circumstances should never apply to a breath test. There is a statutory waiting period required before any breath test. This waiting period negates the concept of exigency. Even if exigency does properly apply to breath or blood tests, it is unclear why to police shouldn't at least have to try to obtain a telephonic warrant.
The Multnomah County District Attorney, the Portland City Attorney, and the Portland Police Department have decided to stop reading implied consent warnings initially during DUI investigations. Instead, Portland Police are now going to try to get the arrested person to consent to the test without warning them about the consequences. Without reading the implied consent warnings, the DMV should not be able to suspend a drivers' license administratively. This is one nice side effect of the Portland policy.
More litigation in this area is needed, and the Oregon Supreme Court has already agreed to hear the case. Briefing is due in this case by December. Oral arguments will likely be heard early next year.
