75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
Enrolled
House Bill 3194
Sponsored by Representative BARTON, Senator SCHRADER;
Representatives KENNEMER, TOMEI, Senator DEVLIN (at the request
of Clackamas County)
CHAPTER ................
AN ACT
Relating to driving while under the influence of intoxicants;
creating new provisions; and amending ORS 813.010, 813.326 and
813.328.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 813.010 is amended to read:
813.010. (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, 813.140 or 813.150;
(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 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 { - defendant has been convicted - } { +
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, + } { - of - } any
of the following offenses in any combination:
(A) Driving while under the influence of intoxicants in
violation of:
(i) This section; or
Enrolled House Bill 3194 (HB 3194-INTRO) Page 1
(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 jurisdiction's 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 a fine on a person convicted of driving while
under the influence of intoxicants as follows:
(a) For a person's first conviction, a minimum of $1,000.
(b) For a person's second conviction, a minimum of $1,500.
(c) For a person's third or subsequent conviction, a minimum of
$2,000 if the person is not sentenced to a term of imprisonment.
(7) Notwithstanding ORS 161.635, $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.
SECTION 2. ORS 813.326 is amended to read:
813.326. (1) In a prosecution for felony driving while under
the influence of intoxicants under ORS 813.010, the state shall
plead the prior convictions and shall prove the prior convictions
unless the defendant stipulates to that fact prior to trial. If
the defendant so stipulates and the trial is by jury:
(a) The court shall accept the stipulation regardless of
whether or not the state agrees to it;
(b) The defendant's stipulation to the prior convictions
constitutes a judicial admission to that element of the
accusatory instrument. The stipulation shall be made a part of
the record of the case, but shall not be offered or received in
the presence of the jury;
(c) For the purpose of establishing the prior convictions
solely as an element of the crime under ORS 813.010, neither the
court nor the state shall reveal to the jury the prior
convictions, but the prior convictions are established in the
record by the defendant's stipulation; and
(d) The court shall not submit the accusatory instrument or
evidence of the prior convictions to the jury.
(2) In a proceeding under ORS 813.010, the state may offer, and
the court may receive and submit to the jury, evidence of the
prior convictions for impeachment of the defendant or another
purpose, other than establishing the prior convictions as an
element of the offense, when the evidence of the prior
convictions is otherwise admissible for that purpose. When
evidence of the prior convictions has been admitted by the court,
the state may comment upon, and the court may give instructions
Enrolled House Bill 3194 (HB 3194-INTRO) Page 2
about, the evidence of the prior convictions only to the extent
that the comments or instructions relate to the purpose for which
the evidence was admitted.
(3) When the defendant stipulates to the prior convictions
required as an element of felony driving while under the
influence of intoxicants under ORS 813.010, if the jury finds the
defendant guilty upon instruction regarding the balance of the
elements of the crime, the court shall enter a judgment of guilty
of felony driving while under the influence of intoxicants.
{ + (4) As used in this section, 'conviction' includes a
juvenile adjudication. + }
SECTION 3. ORS 813.328 is amended to read:
813.328. { + (1) + } A defendant who challenges the validity
of prior convictions alleged by the state as an element of felony
driving while under the influence of intoxicants must give notice
of the intent to challenge the validity of the prior convictions
at least seven days prior to the first date set for trial on the
felony charge. The validity of the prior convictions shall be
determined prior to trial by the court.
{ + (2) As used in this section, 'conviction' includes a
juvenile adjudication. + }
SECTION 4. { + The amendments to ORS 813.010, 813.326 and
813.328 by sections 1, 2 and 3 of this 2009 Act apply to offenses
committed on or after the effective date of this 2009 Act. + }
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Passed by House April 16, 2009
...........................................................
Chief Clerk of House
...........................................................
Speaker of House
Passed by Senate May 28, 2009
...........................................................
President of Senate
Enrolled House Bill 3194 (HB 3194-INTRO) Page 3
Received by Governor:
......M.,............., 2009
Approved:
......M.,............., 2009
...........................................................
Governor
Filed in Office of Secretary of State:
......M.,............., 2009
...........................................................
Secretary of State
Enrolled House Bill 3194 (HB 3194-INTRO) Page 4