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Can I sue for an illegal blood draw used to convict me of a DUI 7 years ago?

West Linn, OR |

My blood was drawn without my consent, arresting officer thought my DUI was a felony offense due to a prior conviction. The results were used in my conviction. My attorney at the time was not interested in this fact, I was not aware at the time that this was an "illegal procedure". I just want my license reinstated, I'm not overly interested in overturning my conviction, but ill do whatever is necessary.

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Attorney answers 3

Best Answer

I'm not sure it was illegal back then! See Schmerber v. California, 384 US 757 (1966) (warrantless blood-draw permitted in DUII cases based on destruction of evidence theory); State v. Machuca, 347 Or 644, 657 (2010) (“for purposes of the Oregon Constitution, the evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here.”). On April 17, 2013, the United States Supreme Court issued Missouri v. McNeely, 569 US ___, 133 S Ct 1552, ___ L Ed 3d ___, 2013 US LEXIS 3160 (2013), holding that the metabolism of alcohol in a DUII case does not create a per se exigency, and that “exigency in this context must be determined case by case based on the totality of the circumstances.” McNeely, 2013 US LEXIS 3160 at 8.
McNeely was a sea change, both federally and in Oregon.
Finally, I agree with the lawyer who commented that you may want to hire a good DUII lawyer and petition for reinstatement of your driving privileges once 10 years have elapsed, pursuant to ORS 809.235: "* * * the person may file a petition to restore driving privileges as described in paragraph (a) of this subsection no sooner than 10 years from the date of the most recent conviction involving a motor vehicle.
(c) The district attorney of the county in which the person’s driving privileges were revoked shall be named and served as the respondent in the petition.
(3) The court shall hold a hearing on a petition filed in accordance with subsection (2) of this section. In determining whether to grant the petition, the court shall consider:
(a) The nature of the offense for which driving privileges were revoked.
(b) The degree of violence involved in the offense.
(c) Other criminal and relevant noncriminal behavior of the petitioner both before and after the conviction that resulted in the revocation.
(d) The recommendation of the person’s parole officer, which shall be based in part on a psychological evaluation ordered by the court to determine whether the person is presently a threat to the safety of the public.
(e) Any other relevant factors.
(4) The court shall order a petitioner’s driving privileges restored if, after a hearing described in subsection (3) of this section, the court finds by clear and convincing evidence that the petitioner:
(a) Is rehabilitated;
(b) Does not pose a threat to the safety of the public; and
(c) If the sentence for the crime for which the petitioner’s driving privileges were revoked required the petitioner to complete an alcohol or drug treatment program, has completed an alcohol or drug treatment program in a facility approved by the Director of the Oregon Health Authority or a similar program in another jurisdiction.
(5) Upon receiving a court order to restore a person’s driving privileges, the department may reinstate driving privileges in accordance with ORS 809.390, except that the department may not reinstate driving privileges of any person whose privileges are revoked under this section until the person complies with future responsibility filings."


You're too late. A non-consensual blood draw is not illegal although a recent case says that under certain circumstances an officer would need a warrant to get a blood draw.


You can't sue the state for this. For one thing, you're past the statute of limitations on most tort suits. For another thing, in order to file any lawsuit against a public agency in Oregon, you must file a tort claims notice stating your intent to sue within 180 days of the incident. And none of that even addresses the question of whether the actual event is something that could be sued over.

However, you may be able to petition the DMV for reinstatement once your record has been clean for about 10 years. You should talk to an attorney about expungement at that time.

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