On September 30, 2009, the Oregon Court of Appeals handed down their opinion in State v. Machuca and in one fell swoop may have rendered dead Oregon’s implied consent law as well as 40 years of supporting case law.

‘Implied Consent’ is not unique to Oregon. Its prevalence throughout the United States means many people are already familiar with it. In essence, implied consent laws state that when a citizen is granted their driver’s license, that grant is a privilege, not a right. In turn for being granted the privilege to drive, the citizen is presumed to ‘consent’ to an alcohol or drug test (whether by breath, blood or urine) at the request of police when certain circumstances are present (ie the police have probable cause that the citizen was driving under the influence).

For several years in Oregon and throughout the United States, the constitutionality of ‘implied consent’ was aggressively contested in the Courts. “How?”, lawyers asked, “Could we declare that drivers had given their consent to alcohol testing, when in fact, no actual consent had been given?” Many felt such a notion was in direct contradiction to the guarantees set out in the U.S. Constitution. It seemed to many that the notion of an implied consent law violated a driver’s Fourth Amendment protection from unreasonable Search and Seizure (Article I, Section 9 of the Oregon Constitution), and their Fifth Amendment right against Self-Incrimination.

These arguments, however, eventually became ancient history. Defense lawyers’ objections were put to rest by Oregon Courts, starting 40 years ago (1969) with Heer v. DMV (which held that there was no illegality under the Fourth and Fifth Amendments), and continuing on in numerous Oregon cases that re-iterated the constitutionality of the implied consent law time and time again.

That is until now. With the decision in Machuca everything that was once settled is again open for debate.

Mr. Machuca had crashed his car in downtown Portland and had been taken to the hospital for care. The police developed probable cause at the scene that Mr. Machuca was DUII. They traveled to the hospital and upon contacting Mr. Machuca there, read him his implied consent rights and consequences, and requested a blood draw from Machuca (requests for blood as opposed to a breath test are common when the accused is at a hospital, as police do not carry Intoxilyzers with them and the ability to obtain blood is a simple matter given the location). Mr. Machuca consented to the police request for his blood and a sample was taken.

At trial Machuca’s attorney’s filed motions to suppress the admission of his blood, arguing (along with other claims), that Mr. Machuca’s consent was not voluntarily given because of the threats of adverse consequences contained in the reading of the implied consent rights and consequences (enhanced license suspension, increased fines, should a driver refuse to consent).

‘Voluntariness’ is a legal standard that must be sufficiently established and proven by the State for someone’s consent, and the subsequently acquired evidence against them (in this context, the accused’s blood alcohol level), to be admissible at trial. Repeatedly in the past, Oregon courts have held that ‘lawful’ threats by police do not invalidate consent. State v. Williamson, 772 P.2d 404, 307 Or. 621 (1989). That is to say that the police can’t threaten to kill your dog if you don’t consent to their request (obviously not legal), but they can threaten to go get a warrant from a judge and force your door down if you refuse consent (legal). The Court in Machuca would seem to turn this principle on its head, to the extreme benefit of the accused.

What is determinative in this context, however, is that the consent was procured through a threat of economic harm and loss of privileges.  It was obtained only after defendant was given the warnings required by ORS 813.130(2) about the consequences of a refusal to allow a blood test.  Under State v. Newton, 291 Or 788, 801, 636 P2d 393 (1981), overruled in part on other grounds by State v. Spencer, 305 Or 59, 750 P2d 147 (1988), a consent to search obtained in that fashion is coerced by the fear of adverse consequences and is ineffective to excuse the requirement to obtain a search warrant.

In case you missed it, in one short paragraph the Oregon Court of Appeals has seemingly ruled that anyone who has granted consent for a breath, blood or urine test, after being read the implied consent rights and consequences, is entitled to have the results suppressed from trial. If you are facing this situation (as virtually anyone arrested for DUII in Oregon would be) make sure you have an attorney who fully understands this radical shift in case law and can make a Machuca motion to the Court.

Your case may depend on it.

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Now playing: Trinity College Choir, Cambridge, Academy of Ancient Music & Stephen Layton – O Praise the Lord With One Consent ‘Chandos Anthem No 9′, HWV254: I. O Praise the Lord With One Consent
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