State v. Davis

Under ORS 813.150, a defendant has a statutory right to request an independent blood test and be given a reasonable opportunity to obtain that test. Once the request is made, the police officer cannot prevent or hinder the ability of the defendant to obtain the test, however there is no affirmative obligation to help the defendant do so.

Defendant appealed the trial court’s judgment of conviction for DUII and reckless driving. Defendant was pulled over because the officer believed she was intoxicated. She failed the field sobriety tests and was arrested. After she was taken to the police station, she requested a blood test. The officer told her she would have to consent to a breath test and then she could have a blood test at her own expense. She registered a 0.16 on the breath test, did not request a blood test again, and was processed to jail. Defendant argued that she was denied a reasonable opportunity to obtain an independent blood test under ORS 813.150, and therefore the results of the Intoxilyzer test should have been suppressed. Under ORS 813.150, a blood test “shall be permitted upon request” and the person who makes the request must be given “reasonable opportunity” to obtain an independent blood test. “Reasonable opportunity” is denied when a police officer’s conduct prevents or hinders the defendant’s attempt to get the blood test. The Court of Appeals ruled that the use of the word “after” in ORS 813.150 does not specify when the request must be made. There is no dispute that Defendant made a request to obtain an independent blood test. The fact that she was subsequently booked into jail is the Defendant’s only basis for her argument, and this does not rise to a level of the officer’s conduct preventing or hindering her ability to obtain a blood test. Affirmed.