State v. Newton

Decision Date27 October 1981
Citation636 P.2d 393,291 Or. 788
PartiesSTATE of Oregon, Petitioner, v. Kenneth Ray NEWTON, Respondent. TC M79-783; CA 16311 and SC 27149. *
CourtOregon Supreme Court

Robert C. Cannon, Asst. Atty. Gen., Salem, argued the cause for petitioner. With him on the brief were James M. Brown, Atty. Gen., and Walter L. Barrie, Sol. Gen.

Thomas C. Bernier, Asst. Public Defender, Roseburg, argued the cause and filed a brief for respondent.

TANZER, Justice.

In this prosecution for driving under the influence of intoxicants, ORS 487.540, the district court suppressed evidence of a breathalyzer test of the defendant's blood alcohol content and the state appealed. The Court of Appeals, 46 Or.App. 461, 611 P.2d 657, affirmed on the basis of our decision in State v. Scharf, 288 Or. 451, 605 P.2d 690, rehearing den. 288 Or. 621, 605 P.2d 690 (1980).

In State v. Scharf this court divided on whether a denial of access to counsel violated Oregon's implied consent statute and required exclusion. A majority held that ORS 487.805 as a matter of legislative policy, assured to an arrested driver a "voluntary and informed choice," 288 Or. at 458, whether to take a breathalyzer test which was violated by an unauthorized police refusal to allow defendant to call a lawyer for advice as to whether to consent. Three judges dissented on the ground that the legislative intent of ORS 487.805 was not to assure a voluntary and informed choice. We allowed review to re-examine our statutory determination.


The defendant was arrested for driving under the influence of intoxicants at about 9 p. m. The validity of the arrest is not challenged. He was advised of his rights to silence and counsel. After the officer drove defendant home to leave his automobile keys and other property with his wife, defendant was taken to the county jail. At about 11 p. m. he was requested to take a breathalyzer test. The defendant then requested the opportunity to talk with a lawyer before the breath test was administered. A telephone was available in the jail at the time of the request. The officer administering the breathalyzer quoted from the standard Oregon State Police informational form and advised defendant that "regardless of any information you may have received before this request, the fact is you are not entitled to have an attorney present at this breath test and any request for delay on this ground will constitute a refusal." 1 Defendant then submitted to the breathalyzer test and the results indicated a blood alcohol content of .10 percent. The district court suppressed that evidence on the basis that defendant was entitled to a telephone call to consult with a lawyer before taking the test.


A threshold difficulty in discerning the legislative intent embodied in ORS 487.805 2 is not simply that the concept of implied consent is a "statutory fiction," Scharf, 288 Or. at 457, 605 P.2d 690, but that the fiction appears to be theoretically contradictory. An enigma appears to be at the heart of the law: If, under subsection (1), a driver has impliedly consented to a breath test which, under subsection (2), he may nevertheless refuse, then "the licensee-driver has not impliedly consented to anything." Lerblance, Implied Consent to Intoxication Tests: A Flawed Concept, 53 St. Johns L.Rev. 39, 49 n. 36 (1978).

The contradiction disappears, however, when it is realized that the words "consent" and "refusal" are not used as antonyms, because they are not used in the same sense. "Consent" describes a legal act; "refusal" describes a physical reality. By implying consent, the statute removes the right of a licensed driver to lawfully refuse, but it cannot remove his or her physical power to refuse. As another court put it:

"The obvious reason for acquiescence in the refusal of such a test by a person who as a matter of law is 'deemed to have given his consent' is to avoid the violence which would often attend forcible tests upon recalcitrant inebriates. * * *

"* * * It is firmly established that a drunken driver has no right to resist or refuse such a test (citations). It is simply because such a person has the physical power to make the test impractical, and dangerous to himself and those charged with administering it, that it is excused upon an indication of his unwillingness. * * *" Bush v. Bright, 264 Cal.App.2d 788, 790, 792, 71 Cal.Rptr. 123 at 124, 125 (1968) (original emphasis).

Thus refusal as contemplated by the statute is something other than withholding of consent because consent is legally implied. It is a refusal to comply with the consent which has already been given as a condition of a license to drive. The purpose of a warning of license suspension following a refusal is to overcome an unsanctioned refusal by threat instead of force. It is not to reinstate a right to choice, let alone a voluntary and informed choice, but rather to nonforcibly enforce the driver's previous implied consent.

The history of the implied consent law confirms the preceding description of the nature of consent and refusal as those terms are used in implied consent statutes. The law is designed to overcome the possibility of physical resistance, despite legal consent, without resort to physical compulsion. Tracing the history of the statute, we find that it is intertwined with constitutional caselaw, uniform legislation, and federal funding. The conclusion is clear that the concept of implied consent is rooted in a misconception of the law of due process which has become legislatively perpetuated even though the constitutional underpinnings have long since been superseded.

Implied consent statutes were initially a reaction to caselaw. The seminal case is Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 (1952). There, the police, armed only with information which was less than probable cause to believe that the defendant was selling narcotics, surreptitiously entered his home and forcibly entered his room without a warrant. Defendant, seated on his bed next to his reclining wife, seized two capsules from his bedstand and placed them in his mouth. Three officers struggled unsuccessfully to extract the capsules from his mouth. Defendant was handcuffed and taken to a hospital where, at police direction and against defendant's will, a doctor forced an emetic solution through a tube into defendant's stomach, causing him to vomit. In the vomit were two capsules of morphine.

The court held that the course of conduct by which the police obtained the evidence offended "those canons of decency and fairness which express the notions of justice of English-speaking peoples" embodied in the due process clause of the Fourteenth Amendment of the United States Constitution, 342 U.S. at 169, 72 S.Ct. at 208, because

"* * * This is conduct that shocks the conscience. Illegally breaking into the privacy of the petitioner, the struggle to open his mouth and remove what was there, the forcible extraction of his stomach's contents-this course of proceeding by agents of government to obtain evidence is bound to offend even hardened sensibilities. They are methods too close to the rack and the screw to permit of constitutional differentiation." 342 U.S. at 172, 72 S.Ct. at 209.

Although later cases made it clear that Rochin was based upon the totality of the police conduct, just as the opinion said, the decision was thought at the time to bar the forcible invasion of the body for seizure of evidence as violative of due process. That being so, there was concern that the Rochin theory invalidated state statutes authorizing the extraction from the body of blood, urine or other substances for testing of alcohol content. See Comment, Constitutional Law-Validity of New York Statute Setting out Motorists' Implied Consent to Chemical Tests for Intoxication, 51 Mich.L.Rev. 1195 (1953).

One year later, the New York legislature acted in response to the Rochin decision by enacting the prototype implied consent statute. See Note, Driving While Intoxicated and the Right to Counsel: The Case Against Implied Consent, 58 Tex.L.Rev. 935, 938 (1980). Unlike former statutes, the new statute did not authorize physical compulsion to overcome resistance to a demand for a blood sample, a practice thought to have been barred by Rochin. Rather, the statute authorized police to overcome refusal by the threat of an adverse consequence, i. e., license suspension. Nothing suggests a legislative intention to offer the driver a free choice or to create the statutory equivalent of a consent search; the objective was to create a means of non-physical coercion in order to obtain chemical samples with which to convict drunk drivers. Implied consent statutes modeled on the New York statute say only that the test "shall be administered" on request of the officer. Only if there is a refusal to submit are further procedures required.

Prior to 1965, Oregon law authorized blood, breath, or urine tests only upon the actual consent of a person arrested for driving under the influence of intoxicating liquor. 3 This was changed in 1965 when Oregon adopted the implied consent act essentially in its present form. Its proponent explained:

"The question of consent remains the crux of the problem today. Although we have a chemical test law to deal with the problem of the drinking driver, it is not fully utilized due to the difficulties in obtaining consent (i. e. submission). Refusals to take a chemical test run as high as 70% in some jurisdictions. On an average, about 2/3 refuse to take a test." Testimony of Warne Nunn, Chairman, Oregon Traffic Safety Commission, representing Governor Mark Hatfield, 1-28-65, House Judiciary Committee.

The proponent continued to explain that consent would continue to be required for blood tests. For breath testing, however, an arrested person need not...

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