Chapter 619 Oregon Laws 1999

Session Law

AN ACT

SB 443

Relating to driving while under the influence of intoxicants; creating new provisions; and amending ORS 801.272, 807.060, 807.250, 809.265, 813.010, 813.020, 813.040, 813.131, 813.140, 813.150, 813.500 and 821.250 and section 3, chapter 126, Oregon Laws 1999 (Enrolled House Bill 2168).

Be It Enacted by the People of the State of Oregon:

SECTION 1. Section 2 of this 1999 Act is added to and made a part of ORS chapter 801.

SECTION 2. "Inhalant" means any glue, paint, cement or other substance that is capable of causing intoxication and that contains one or more of the following chemical compounds:

(1) Acetone;

(2) Amyl acetate;

(3) Benzol or benzene;

(4) Butane;

(5) Butyl acetate;

(6) Butyl alcohol;

(7) Carbon tetrachloride;

(8) Chloroform;

(9) Cyclohexanone;

(10) Difluoroethane;

(11) Ethanol or ethyl alcohol;

(12) Ethyl acetate;

(13) Hexane;

(14) Isopropanol or isopropyl alcohol;

(15) Isopropyl acetate;

(16) Methyl cellosolve acetate;

(17) Methyl ethyl ketone;

(18) Methyl isobutyl ketone;

(19) Nitrous oxide;

(20) Toluol or toluene;

(21) Trichloroethylene;

(22) Tricresyl phosphate;

(23) Xylol or xylene; or

(24) Any other solvent, material, substance, chemical or combination thereof having the property of releasing toxic vapors or fumes.

SECTION 3. 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 .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, [or] a controlled substance or an inhalant; or

(2) A person may not be convicted of driving 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) 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.

SECTION 4. ORS 801.272 is amended to read:

801.272. "Field sobriety test" means a physical or mental test, approved by the Department of State Police by rule after consultation with the Department of Public Safety Standards and Training, that enables a police officer or trier of fact to screen for or detect probable impairment from intoxicating liquor, a controlled substance, an inhalant or [a] any combination of intoxicating liquor, an inhalant and a controlled substance.

SECTION 5. ORS 807.060 is amended to read:

807.060. The Department of Transportation shall not grant driving privileges to a person under a license if the person is not eligible under this section. The following are not eligible for a license:

(1) A person under 16 years of age.

(2) A person under 18 years of age who is not an emancipated minor unless the application of the person is signed by the person's mother, father or guardian or, if the person has no father, mother or guardian, by the person's employer. A person who signs an application under this subsection may have the driving privileges canceled as provided under ORS 809.320.

(3) Notwithstanding subsection (2) of this section, a person under 18 years of age is not eligible for a commercial driver license.

(4) A person that the department determines has a problem condition involving alcohol, inhalants or controlled substances as described under ORS 813.040.

(5) A person the department reasonably believes is subject to any condition which brings about momentary or prolonged lapses of consciousness or control that is or may become chronic.

(6) A person the department reasonably believes has a physical or mental disability or disease serving to prevent the person from exercising reasonable and ordinary control over a motor vehicle while operating it upon the highways.

(7) A person the department reasonably believes is unable to understand highway signs that warn, regulate or direct traffic.

(8) A person who is required to make future responsibility filings but has not made filings as required.

(9) A person who cannot be issued a license under the Driver License Compact under ORS 802.540.

(10) A person who is not subject to the Driver License Compact under ORS 802.540 but whose driving privileges are currently under suspension or revocation in any other state upon grounds which, if committed in this state, would be grounds for the suspension or revocation of the driving privileges of the person.

(11) A person who has been declared a habitual offender under ORS 809.640. A person declared not eligible to be licensed under this subsection may become eligible by having eligibility restored under ORS 809.640.

(12) A person whose driving privileges are canceled in this state under ORS 809.310 until the person is eligible under ORS 809.310.

(13) A person while the person's driving privileges are revoked in this state.

(14) A person during a period when the person's driving privileges are suspended in this state.

(15) A person who holds a current out-of-state license or driver permit or a valid Oregon license or driver permit. A person who is not eligible under this subsection may become eligible by surrendering the license, driver permit or out-of-state license or driver permit to the department before issuance of the license. Nothing in this subsection authorizes a person to continue to operate a motor vehicle on the basis of an out-of-state license or permit if the person is required by ORS 807.062 to obtain an Oregon license or permit.

(16) A person who has not complied with the requirements and responsibilities created by citation for or conviction of a traffic offense in another jurisdiction if an agreement under ORS 802.530 authorizes the department to withhold issuance of a license.

(17) A person 18 years of age or older whose provisional driver license was suspended under ORS 809.405, if the department reasonably believes that the person is not adequately reformed. As a requirement for eligibility, the department may require the person to complete a driver improvement program established by the department under ORS 809.480.

SECTION 6. ORS 807.250 is amended to read:

807.250. (1) In addition to any requirements under ORS 807.240 and any applicable conditions under ORS 813.500 and 813.520, the Department of Transportation shall not issue a hardship permit under ORS 807.240 to a person whose suspension of driving privileges is based upon a conviction of any of the following unless the person submits to the department a recommendation from the judge before whom the person was convicted:

(a) ORS 811.140.

(b) ORS 811.540.

(c) Driving while under the influence of intoxicants. If a person's driving privileges are suspended for a conviction for driving while under the influence of intoxicants and the person is determined under ORS 813.500 to have a problem condition involving alcohol, inhalants or controlled substances as described in ORS 813.040, the judge must:

(A) Make the recommendation with reference to the best interest of the public as well as of the defendant and the recommendation must be in writing.

(B) Recommend times, places, routes and days minimally necessary for the person to retain employment, to attend any alcohol treatment or rehabilitation program or to receive necessary medical treatment for the person or a member of the person's immediate family.

(2) The department shall not issue a hardship permit to a person whose suspension of driving privileges is based on a conviction described in ORS 809.265.

(3) The department shall not issue a hardship permit to a person whose driver license or driver permit is suspended pursuant to ORS 25.750 to 25.783.

SECTION 7. ORS 809.265 is amended to read:

809.265. (1) Unless the court finds compelling circumstances not to order suspension of driving privileges, the court in which a person is convicted of an offense described in this subsection shall prepare and send to the Department of Transportation, within 24 hours of the conviction, an order of suspension of driving privileges of the person. This subsection applies when a person is convicted of:

(a) Any crime, violation, infraction or other offense involving manufacturing, possession or delivery of controlled substances.

(b) Driving while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance if the person was under the influence of [a] an inhalant or a controlled substance.

(2) Upon receipt of an order under this section, the department shall take action as directed under ORS 809.280.

SECTION 8. ORS 813.020 is amended to read:

813.020. When a person is convicted of driving under the influence of intoxicants in violation of ORS 813.010, a court shall comply with the following in addition to any fine or other penalty imposed upon the person under ORS 813.010:

(1) The court shall require the person to do all of the following:

(a) Pay to the court the fee described under ORS 813.030 in addition to any fine imposed under ORS 813.010.

(b)(A) Complete an examination by an agency or organization designated by the court to determine whether the person has a problem condition involving alcohol, inhalants or controlled substances as described in ORS 813.040. The designated agencies or organizations must meet the standards set by the Assistant Director for Alcohol and Drug Abuse Programs to perform the diagnostic assessment and treatment of problem drinking, alcoholism and drug dependency and must be certified by the Assistant Director for Alcohol and Drug Abuse Programs. Wherever possible a court shall designate agencies or organizations to perform the examination that are separate from those that may be designated to carry out a program of treatment.

(B) Pay directly to the agency or organization conducting the examination required by subparagraph (A) of this paragraph, a fee of $90.

(A) If the examination required under this section shows that the person has a problem condition involving alcohol, inhalants or controlled substances, a program for rehabilitation for alcoholism or drug dependence approved by the Assistant Director for Alcohol and Drug Abuse Programs.

(B) If the examination required by this section shows that the person does not have a problem condition involving alcohol, inhalants or controlled substances, an alcohol or drug information program approved by the Assistant Director for Alcohol and Drug Abuse Programs.

(2) The court must impose and not suspend execution of a sentence requiring the person either to serve at least 48 hours' imprisonment which shall be served consecutively unless justice requires otherwise or to perform community service for times specified by the court under ORS 137.129. For purposes of this subsection:

(a) A court may provide for the imprisonment to be served in jail, minimum security facilities or inpatient rehabilitation or treatment centers.

(b) Whenever the judge provides for the mandatory imprisonment to be served other than consecutively, the judgment must specifically so provide and the judge must state the reasons in writing.

(3) In a county that has a victim impact program a court may require the person to attend a victim impact treatment session. If the court requires attendance under this section, the court may require the defendant to pay a reasonable fee to the victim impact program to offset the cost of the defendant's participation. The fee shall be established for each county by the victim impact panel coordinator and steering committee of that county and shall be not less than $5 or more than $50.

SECTION 8a. Section 8 of this 1999 Act (amending ORS 813.020) is repealed and section 3, chapter 126, Oregon Laws 1999 (Enrolled House Bill 2168), is amended to read:

Sec. 3. (1) When a court, in accordance with ORS 813.020, requires a person to complete a screening interview and a treatment program, the court shall require the person to do all of the following:

(a) Complete a screening interview for the purpose of determining appropriate placement of the person in a program for treatment for alcoholism, [or] drug dependency or dependency on inhalants.

(b) Pay directly to the agency or organization conducting the screening interview a fee of $90.

(d) Pay for the treatment program to which the person is referred.

(2) The screening interview required by this section shall be conducted by an agency or organization designated by the court. The designated agency or organization must meet the standards set by the Assistant Director for Alcohol and Drug Abuse Programs to conduct the screening interviews. Wherever possible a court shall designate agencies or organizations to perform the screening interview that are separate from those that may be designated to carry out a treatment program.

(3) An agency or organization doing a screening interview under this section may not refer a person to a treatment program that has not been approved by the Assistant Director for Alcohol and Drug Abuse Programs.

(4) The agency or organization conducting a screening interview under this section shall monitor the progress of the person referred to the agency or organization. The agency or organization shall make a report to the referring court stating the person's successful completion or failure to complete all or any part of the screening interview or of the treatment program to which the person was referred by the agency or organization. The report shall be in a form determined by agreement between the court and the agency or organization.

SECTION 9. ORS 813.040 is amended to read:

813.040. This section establishes, for purposes of ORS 807.060, 813.020 and 813.500, when a person has a problem condition involving alcohol, inhalants or controlled substances. For purposes of ORS 807.060, 813.020 and 813.500, a person has a problem condition involving alcohol, inhalants or controlled substances if it is determined that the person has a problem condition in which the person's health or that of others is substantially impaired or endangered or the person's social or economic function is substantially disrupted because of the person's:

(1) Habitual or periodic use of alcoholic beverages; or

(2) Use of or loss of the ability to control the use of controlled substances, inhalants or other substances with abuse potential including a condition that may have developed:

(a) A physical dependence in which the body requires a continuing supply of a drug, inhalant or controlled substance to avoid characteristic withdrawal symptoms; or

(b) A psychological dependence characterized by an overwhelming mental desire for continued use of a drug, inhalant or controlled substance.

SECTION 10. ORS 813.131 is amended to read:

813.131. (1) Any person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the Motorist Implied Consent Law, to a chemical test of the person's urine for the purpose of determining the presence of a controlled substance or an inhalant in the person's body if the person is arrested for driving while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance and either:

(a) The person takes the breath test described in ORS 813.100 and the test discloses a blood alcohol content of less than .08 percent; or

(b) The person is involved in an accident resulting in injury or property damage. A urine test may be requested under this paragraph regardless of whether a breath test has been requested and regardless of the results of a breath test, if one is taken.

(2) A police officer may not request a urine test unless the officer is certified by the Board on Public Safety Standards and Training as having completed at least eight hours of training in recognition of drug impaired driving and the officer has a reasonable suspicion that the person arrested has been driving while under the influence of a controlled substance, an inhalant or [a] any combination of an inhalant, a controlled substance and intoxicating liquor.

(3) A person asked to give a urine sample shall be given privacy and may not be observed by a police officer when producing the sample.

(4) The detection levels and results of urine tests given under this section shall conform to rules and guidelines of the National Institute of Drug Abuse of the United States Department of Health and Human Services.

SECTION 11. ORS 813.140 is amended to read:

813.140. Nothing in ORS 813.100 is intended to preclude the administration of a chemical test described in this section. A police officer may obtain a chemical test of the blood to determine the amount of alcohol in any person's blood or a test of the person's blood or urine, or both, to determine the presence of a controlled substance or an inhalant in the person as provided in the following:

(1) If, when requested by a police officer, the person expressly consents to such a test.

(2) Notwithstanding subsection (1) of this section, from a person without the person's consent if:

(a) The police officer has probable cause to believe that the person was driving while under the influence of intoxicants and that evidence of the offense will be found in the person's blood or urine; and

(b) The person is unconscious or otherwise in a condition rendering the person incapable of expressly consenting to the test or tests requested.

SECTION 12. ORS 813.150 is amended to read:

813.150. In addition to a chemical test of the breath, blood or urine administered under ORS 813.100 or 813.140, upon the request of a police officer, a person shall be permitted upon request, at the person's own expense, reasonable opportunity to have any licensed physician and surgeon, licensed professional nurse or qualified technician, chemist or other qualified person of the person's own choosing administer a chemical test or tests of the person's breath or blood for the purpose of determining the alcoholic content of the person's blood or a chemical test or tests of the person's blood or urine, or both, for the purpose of determining the presence of a controlled substance or an inhalant in the person. The failure or inability to obtain such a test or tests by a person shall not preclude the admission of evidence relating to a test or tests taken upon the request of a police officer.

SECTION 13. ORS 813.500 is amended to read:

813.500. (1) If a person's license is suspended for driving while under the influence of intoxicants under ORS 813.400 and the suspension period is determined by ORS 809.420 (2)(b) or (c), the Department of Transportation may only issue a hardship permit to the person under ORS 807.240 if the person, in addition to any requirement under ORS 807.240 and any applicable requirements under ORS 807.250 and 813.520:

(a) Is examined by the Assistant Director for Alcohol and Drug Abuse Programs or its designee to determine whether the person has a problem condition involving alcohol, inhalants or controlled substances as described in ORS 813.040; and

(b) Complies with the requirements of this section.

(2) If the Assistant Director for Alcohol and Drug Abuse Programs determines that the person has a problem condition involving alcohol, inhalants or controlled [substance] substances, as described in ORS 813.040, the department may issue the permit to the person only if both the following apply:

(a) The person enrolled in a program for rehabilitation for alcoholism or drug dependence approved by the Assistant Director for Alcohol and Drug Abuse Programs.

(b) The Assistant Director for Alcohol and Drug Abuse Programs recommends, on the basis of the person's progress in the rehabilitation program, such reinstatement in writing to the department. If the Assistant Director for Alcohol and Drug Abuse Programs makes a recommendation under this paragraph, the Assistant Director for Alcohol and Drug Abuse Programs shall state specifically in the recommendation the times, places, routes and days of the week minimally necessary for the person to retain employment, to attend any alcohol treatment or rehabilitation program or to obtain necessary medical treatment for the person or a member of the person's immediate family.

(3) If the Assistant Director for Alcohol and Drug Abuse Programs determines that the person does not have a problem condition involving alcohol, inhalants or controlled substances as described in ORS 813.040, the department may issue the permit to the person only if, in addition to any requirements under ORS 807.240, the person enters an alcohol or drug information program approved by the Assistant Director for Alcohol and Drug Abuse Programs and the department determines that issuance of a permit is appropriate. If the department issues a permit to a person described in this subsection, the department shall require, under ORS 807.240, that the person complete the program as a condition of retaining the permit.

SECTION 14. ORS 821.250 is amended to read:

821.250. (1) A person commits the offense of permitting dangerous operation of a snowmobile or an all-terrain vehicle if the person is the owner or other person having charge or control of a snowmobile or an all-terrain vehicle and the person knowingly authorizes or permits any person to operate the vehicle across a highway who is:

(a) Incapable by reason of age, physical or mental disability; or

(b) Under the influence of intoxicating liquor, inhalants or controlled substances.

(2) In addition to other penalties provided by this section, operators or owners may be liable as provided under ORS 821.310.

(3) The offense described in this section, permitting dangerous operation of a snowmobile or an all-terrain vehicle, is a Class A traffic infraction.

Approved by the Governor July 12, 1999

Filed in the office of Secretary of State July 12, 1999

Effective date October 23, 1999

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