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Feb-11-2010 17:07printcomments

Supreme Court Ruling Changes Implied Consent Law

The controversial change is applauded by Oregon's Attorney General John Kroger.

DUII photo

(SALEM, Ore.) - Oregon drivers are in for a whole new ball game when it comes to implied consent. A Supreme Court ruling today allows police more leverage in accesing the blood alcohol content of people they suspect of driving under the influence of alcohol[1].

It is clear that today's Oregon Supreme Court ruling will help the state’s efforts to combat driving under the influence of intoxicants, but this is also a land of shrinking driver rights, with controversial practices like traffic cameras designed to snap a photo of a drivers license plate and mail them an expensive ticket in the mail.

What happens in Oregon doesn't fly in every state.

I also wrote last week about how police in this state are using underhanded tactics all too frequently when pulling over drivers, and how all drivers need to have a video camera in their car rolling, if they are ever stopped by police[2].

Oregon Attorney General John Kroger, says the decision in State v. Machuca clearly establishes the principle that the constitution does not require a police officer to obtain a warrant for a test to determine blood alcohol content from a DUII suspect.

A news release from his office explained, "This decision overturned an Oregon Court of Appeals decision that cast doubt on dozens of DUII convictions and posed serious barriers to the effective investigation and prosecution of these important cases."

Of course this is the top law enforcement official in Oregon, and I didn't expect Kroger to lament the decision. What I wish he and others would realize, is that each step like this potentially erodes the personal freedom of Oregonians, right wrong or indifferent.

I do find it ironic that police officers frequently use alcohol, have bars that they congregate in, and probably end up in situations where they may be driving illegally all too often. I know, as a reporter attending PIO parties and such, I have seen cops get blitzed and drive away. Marijuana, which is minor in comparison and has few side effects and has never caused a death, remains illegal for all but medical users.

It does seem to have avoided any implications from this ruling, which only references alcohol.

Kroger says Oregon law enforcement officers make about 25,000 DUII arrests a year, and he believes the decision is a victory for Oregon because it makes DUII drivers accountable.

OAA Director Pleased with Ruling

Tara Lawrence, former Sherman County District Attorney and Executive Director of the Oregon Anti-Crime Alliance, applauded the Supreme Court’s ruling in State v. Machuca, released today.

"This case is extremely important because it affects every drunken driving prosecution in Oregon. The court found that in drunken driving cases, the dissipation of alcohol in the blood stream is an exigent circumstance, or a situation where evidence of criminal activity will be lost without swift action by law enforcement. Under these circumstances, a search warrant is not required by Oregon’s constitution, according to the court."

Doug Harcleroad, former Lane County District Attorney and Senior Policy Advisor for OAA, added, "The Supreme Court’s opinion helps law enforcement continue the fight against drunken driving and still protects our individual rights not to be randomly searched."

DUII Attorneys Cast Doubt

On their Internet blog, the Law Office of Squire M. Bozorth, Criminal Defense Attorney, said Attorney General John Kroger argued the case himself. They see this as an indication of the strong law enforcement interest in overturning the controversial Oregon Court of Appeals decision[3].

"It seems questionable whether the 6-4 split decision from Oregon’s Court of Appeals will stand given the fact that in a blink it tossed aside nearly 40 years of established implied consent law."

They say the ruling will lead to a number of questions that attorneys and their DUII clients will be faced with.

"What may be of more interest to DUII lawyers and DUII defendants is how cases currently affected by the Machuca holding will be treated by the local district attorneys offices pending the Supreme Court’s ruling in the case. If the State opts to proceed to trial with cases hobbled by the Machuca ruling and lose (before a decision by the Supreme Court is handed down), the State will have no recourse. Case closed."

But they say that if district attorneys choose to appeal the Machuca ruling in each individual case, "they would be able to stay the proceedings in each case pending the Supreme Court’s ruling. This may be the most likely tactic for the State in these cases and certainly would slow down resolution of a large number of DUII cases."

The ACLU offices in Portland and Eugene did not return our phone calls today, we had hoped to learn whether or not they had a position on the new ruling.

[1] State of Oregon v. Thomas Gregory Machuca
[2] Holding Oregon Cops Accountable Over Criminal Profiling - Tim King
[3] Law Office of Squire M. Bozorth, Criminal Defense Attorney

Tim King is a former U.S. Marine with twenty years of experience on the west coast as a television news producer, photojournalist, reporter and assignment editor. In addition to his role as a war correspondent, this Los Angeles native serves as's Executive News Editor. Tim spent the winter of 2006/07 covering the war in Afghanistan, and he was in Iraq over the summer of 2008, reporting from the war while embedded with both the U.S. Army and the Marines. Tim holds numerous awards for reporting, photography, writing and editing, including the Oregon AP Award for Spot News Photographer of the Year (2004), first place Electronic Media Award in Spot News, Las Vegas, (1998), Oregon AP Cooperation Award (1991); and several others including the 2005 Red Cross Good Neighborhood Award for reporting. Serving the community in very real terms, is the nation's only truly independent high traffic news Website. You can send Tim an email at this address:

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douglas benson February 12, 2010 6:27 am (Pacific time)

We were just talking about this the other day .This compelling intrest garbage has gone way too far . So as long as the goverment has a compelling intrest our constitutional rights mean squat. These rulings are dangerous in the extreme and the courts bending to the demands of law enforcement over our rights that they have a sworn duty to protect .Those that would trade thier liberty for imagined safety deserve niether .I would rather see a hundred guilty men go free than one innocent man suffer . That was the intention of our founding fathers not this garbage .Whats next our second ammendment ,our first,our fifth is pretty much gone . We need an initiative that restores our constitutional rights above law enforcements intrests and that holds officers and prosecutors accountable when they violate them.

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Sean Flynn was a photojournalist in Vietnam, taken captive in 1970 in Cambodia and never seen again.