On June 21, 2021, Oregon Senate bill 201 (SB 201) was signed by the Speaker of the House of Representatives and sent to Governor Kate Brown for signing. SB 201 adds additional terms to Oregon’s DUII laws that make it easier for the State to prove that an individual was driving under the influence of intoxicants. This post is meant to discuss those changes to the DUII laws so you know what to do to avoid a DUII in Oregon.
As a baseline, Oregon law has typically been that drinking and driving is not illegal. However, drinking then driving while intoxicated is illegal. The nuance between the two phrases is related to intoxication rather than the amount of alcohol consumed. SB 201 intends to change that nuance. To better understand the changes made by SB 201, consider this hypothetical driver.
In 2020, Danny went to the local bar and grill and ordered a burger and fries with a glass of beer. He spent about 45 minutes at the bar to eat his meal. Danny then decided to take a few shots “for the road,” and had three shots of whiskey. He immediately got into his car to make the ten-minute drive home. When Danny got in his car, he didn’t feel intoxicated or even buzzed. Before he got home, he was pulled over for a traffic violation. He did okay on the field sobriety tests: two out of six on the first test, two out of eight on the second test, and one out of four on the last test. Even so, Danny was arrested for DUII. By the time he got the police station for the breath test, he could feel the effects of the shots. Approximately 45 minutes after the traffic stop, he consented to the breath test. Because the alcohol from the shots had finally absorbed completely into his bloodstream, his BAC results came back over a .08%. He is then charged with DUII.
Under this example, the State could prove that Danny was DUII by proving one of two theories. In Oregon DUII cases, the prosecutor prefers to prove is the theory that, at the time of driving, the defendant’s BAC was at a 0.08% or higher. This theory was the preferred theory for Oregon prosecutors. To defend against this theory, defense attorneys would argue that their client’s BAC was not over a 0.08% at the time of driving; instead, their BAC was below .08% at the time of driving. To support this argument, defense attorneys would have an expert witness testify regarding blood-alcohol absorption and intoxication levels. To understand what this argument is, let us review blood-alcohol absorption.
When an individual consumes alcohol, it takes time for that alcohol to absorb into the bloodstream and cause intoxication. There are multiple factors that affect an individual’s BAC, including the person’s height, weight, sex, alcohol tolerance, and food consumption with the alcohol. For example, a larger male who has a high alcohol tolerance will have a lower BAC than a smaller female with a low alcohol tolerance after consuming the same number of drinks. Additionally, two individuals with the same physical characteristics may have different BACs if one of them ate dinner with their drinks while the other did not. These examples highlight how the individual circumstances of a given driver will influence that driver’s BAC.
Now, in the context of a DUII case, a driver can consume alcohol immediately before driving and not have a BAC over 0.08%. That is because the alcohol has not been absorbed into the bloodstream yet, and the person may not feel the effects of the alcohol (be “intoxicated”) when they start driving. In the DUII defense legal field, this is considered a “rising BAC DUII.”
Returning to the story of Danny, the defense attorney would have the expert witness discuss how the different factors affect alcohol absorption to show the jury that Danny’s BAC was under a 0.08% at the time of driving. The expert would give their expert opinion that Danny’s BAC was still rising at the time of driving. As a result, the expert’s opinion would be that Danny is not guilty of DUII. This argument was sometimes effective in securing a not-guilty verdict.
This “rising BAC” argument is defunct with the passage of SB 201. The changes of SB 201 are meant to prevent any argument regarding a “rising BAC” in a DUII trial. This means that, so long as (1) no alcohol was consumed after driving, (2) the breath or blood test shows 0.08%, and (3) the breath or blood test is completed within two hours of the traffic stop, then the driver is guilty of DUII.
The primary change made by SB 201 is based in this new language in the offense (new language is in bold):
813.010 (1) A person commits the offense of driving under the influence of intoxicants if the person drives a vehicle while the person:
(d) Within two hours after driving a vehicle, and without consuming alcohol in the intervening time period, 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 . . . .
This new language means that, regardless of what the driver’s actual blood alcohol content (BAC) is at the time of driving, if the driver submits a breath or blood test within two hours of driving, and the test shows a 0.08% or more, then the person is guilty of DUII.
What does this mean for Oregon drivers?
This means that Oregon drivers must be more careful about alcohol consumption before getting in the driver’s seat of a car. A driver cannot rely on “how they feel” when they leave the bar or restaurant. They could feel fine when they get in their car, but if they have consumed enough alcohol that their BAC was still rising when they started driving, they can be found guilty of DUII. The question a driver must ask is no longer “do I feel safe to drive?” Rather, the question should be “have I had enough to drink that my BAC even two hours from now could be over a 0.08%?” In other words, guilt for a DUII in Oregon boils down to what the breathalyzer says, regardless of whether a driver was intoxicated at the time of driving.
As always, the safest course of action is to have a designated driver, take a taxi, or get an Uber/Lyft. It is always better to take the safe route rather than risk a DUII. However, if a friend or a loved one is facing DUII charges, our attorneys at Gunn & Gunn have over 75 years of experience in DUII defense. We are happy to help. Give us a call at (503) 623-4866.