Posted: 10/1/2009 8:52:53 PM EDT
Been on RDO's for three days. Just found out today via txt from another Troop Oregon's Supreme Court Ruled DMV Implied Consent Unconstitutional? Did a google search but didn't find anything. Anybody have any info at all on this? I really hope this isn't right. Now what, search warrant for blood every time you arrest for deuce?
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| Alright, think I found the case everyone is freakin out about. It's a Oregon Court of Appeals opinion handed down on the 30th, not Supreme Court as I was told. It's State V. Machuca . Just scanned over it quickly and Implied Consent is talked about. Will read it more closely tomorrow. Anybody else had anything change in their DUII procedures the last couple days? |
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Legal Brief
It sounds like the defense argued (successfully) that Oregon's Implied Consent Law is unconstitutional because it lists the penalties for refusing a breath or blood test. From the link: Defense Attorney: "The state appears to be arguing that consent occurred here. I would cite Your Honor to State v. Newton, which is in our motion to suppress, which is 291 Or 788, specifically at 801, and that’s on page 14 five of our motion to suppress, and the long and the short of it is, where a person’s consent to seizure is solicited, and it deals with the implied consent situation, and the person consents only after being warned that he’ll suffer substantial penalty if he refuses, the resulting consent cannot be regarded as a free exercise of will, and they therefore held that the defendant’s submission to the breath test was not a voluntary consent to seizure because it was coerced.” |
| from my understanding reading implied consent while requesting a breath sample makes the breath sample not voluntary, I.E. you need a warrant or exigent circumstances to secure the evidence without a warrant....and the fact has always been with the disipation of alcohol, that was yer exigent circumstances....its sounds like this was brought up in court as why the officer did not seek a warrant. Officer was asked how long it takes to get a warrant and he replied something to the extent of it only takes an hour...which I dunno bought you guys but even an experienced search warrant writer will find from start to finish its at least 3-4 hours and thats during business hours....I guess this ruling (so far...I hear the state is fighting it) meens you will have to be prepared to articulate in court how long a warrant takes to get and articulate why you have exigent circumastances (Dissipation of alcohol/yer evidence) to not need a warrant. |
| I wouldn't be surprised at all if an Oregon judge (Multnomah County in particular) decided the Implied Consent was unconstitutional. There are so many things that I cannot do or ask already, so this is just another way to impede law enforcement. I may sound cynical, but I've seen a lot of decisions around here that boggle the mind. |
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I wouldn't be surprised at all if an Oregon judge (Multnomah County in particular) decided the Implied Consent was unconstitutional. There are so many things that I cannot do or ask already, so this is just another way to impede law enforcement. I may sound cynical, but I've seen a lot of decisions around here that boggle the mind. Not to mention as it already is DUII's involve the most BS hoops you have to jump through....all for a A misdemeanor....The funny thing is my DUII reports are at least 2 pages long of narative and sometimes 3....I've written shorter felony reports and most other A misd. reports are maybe a page long...I think its rediculous the amount of crap we already have to do for DUIIs....Its all because society has come to accept DUII's as something less than criminal, because every type of person gets DUII's from the poorest of the poor to the richest of the rich, it's a crime that has no social boundary....It's also one of the crimes that probably kills the most innocent people.....but sure, lets make it harder for us to protect people! Sorry Rant over! |
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I wouldn't be surprised at all if an Oregon judge (Multnomah County in particular) decided the Implied Consent was unconstitutional. There are so many things that I cannot do or ask already, so this is just another way to impede law enforcement. I may sound cynical, but I've seen a lot of decisions around here that boggle the mind. Not to mention as it already is DUII's involve the most BS hoops you have to jump through....all for a A misdemeanor....The funny thing is my DUII reports are at least 2 pages long of narative and sometimes 3....I've written shorter felony reports and most other A misd. reports are maybe a page long...I think its rediculous the amount of crap we already have to do for DUIIs....Its all because society has come to accept DUII's as something less than criminal, because every type of person gets DUII's from the poorest of the poor to the richest of the rich, it's a crime that has no social boundary....It's also one of the crimes that probably kills the most innocent people.....but sure, lets make it harder for us to protect people! Sorry Rant over! I hear ya guys. Well I had my first DUII last night since this ruling. Our DA has been on the ball and come up with a breath test consent form and also a search warrant template for blood that is very streamlined in case they refuse the breath test. About 3 pages of checking boxes and filling in blanks, doesn't look too bad. I tell ya it felt weird standing there staring at this guy for 15 minutes with no Implied Consent reading. If anything it was good for using up some of the time in your observation period. Next few weeks should be interesting.
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I wouldn't be surprised at all if an Oregon judge (Multnomah County in particular) decided the Implied Consent was unconstitutional. There are so many things that I cannot do or ask already, so this is just another way to impede law enforcement. I may sound cynical, but I've seen a lot of decisions around here that boggle the mind. Not to mention as it already is DUII's involve the most BS hoops you have to jump through....all for a A misdemeanor....The funny thing is my DUII reports are at least 2 pages long of narative and sometimes 3....I've written shorter felony reports and most other A misd. reports are maybe a page long...I think its rediculous the amount of crap we already have to do for DUIIs....Its all because society has come to accept DUII's as something less than criminal, because every type of person gets DUII's from the poorest of the poor to the richest of the rich, it's a crime that has no social boundary....It's also one of the crimes that probably kills the most innocent people.....but sure, lets make it harder for us to protect people! Sorry Rant over! I hear ya guys. Well I had my first DUII last night since this ruling. Our DA has been on the ball and come up with a breath test consent form and also a search warrant template for blood that is very streamlined in case they refuse the breath test. About 3 pages of checking boxes and filling in blanks, doesn't look too bad. I tell ya it felt weird standing there staring at this guy for 15 minutes with no Implied Consent reading. If anything it was good for using up some of the time in your observation period. Next few weeks should be interesting. Thats interesting....My dept has decided that we will conduct DUII's business as usual and will just be prepared in court (along with the D.A.'s Office) to testify how long the search warrant process takes and how at whatever time you arrest you would have to locate an on call judge and an on call D.A. to review the warrant and how our exigency is the dissipation of evidence.....and until Implied Consent is thrown out we will continue to read it and use it. One thing that has been suggested to do is to document a good time line, arrest, wait for tow to arrive, transport time, arrival at jail time, 15 min observation time and breath samples....and it has been suggested once the observation time ends to get the breath samples as quickly as possible, not sitting there for 20 minutes whille paper work is filled out. |
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Well, after discussing it in roll call last week, the new policy isn't that much different. The only difference is we now ask them to take breath test before reading the Implied Consent. We only read it if they first refuse, then we read it and ask again.
Fortunately, there are almost always traffic guys out and about when I'm working, and all I have to do is FSTs and traffic officer will process. Now, our latest issue is the County Jail refused someone because they were too drunk. So, if someone we arrest is "too drunk" we'll have to take them to the hospital and wait with them until they are sober enough....whatever the fuck that means. So I asked in roll call if that meant we couldn't take DUII arrests to jail, and they didn't know. |