Did Oregon's Measure 40 make DUII roadblocks legal without separate authorizing legislation?
Plain-English summary
The Oregon State Police asked two questions after voters approved Ballot Measure 40 in November 1996. First, did Measure 40 make it legal to run DUII (driving under the influence of intoxicants) roadblocks? Second, did state troopers still need to use the multilingual notice-and-consent form during drug-interdiction consent searches?
Chief Counsel Donald Arnold concluded the answers were (1) no and (2) yes. The Oregon Supreme Court in Nelson v. Lane County (1987) held that no roadblock or other search may take place without explicit statutory authorization. Measure 40 dealt with evidence admissibility and the construction of search-and-seizure provisions; it did not enact authority to run roadblocks. The multilingual form remained necessary under a separate civil forfeiture statute (Oregon Laws 1993, ch. 699, § 20).
The opinion was unusually pointed in warning officers not to treat Measure 40 as an invitation to conduct unlawful stops. Even if Measure 40 prevented evidentiary suppression, officers conducting unauthorized roadblocks could still face civil liability and criminal prosecution.
Currency note
This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.
Common questions
Q: What did Nelson v. Lane County actually require?
A: The Oregon Supreme Court held that any inquiry about the legality of a roadblock or other police search starts with a statutory question: is there a statute that explicitly authorizes the action? If not, the inquiry ends and the roadblock is unlawful. Only if such authority exists does the court ask whether the statute satisfies constitutional requirements.
Q: What did Measure 40 actually do?
A: Measure 40 conferred rights on victims in criminal cases, including a right to have relevant evidence admitted. It also directed that Article I, section 9 and section 12 of the Oregon Constitution "shall not be construed more broadly than" the equivalent federal provisions. It did not authorize police actions or create new investigative powers.
Q: Could officers run roadblocks anyway if they wouldn't be suppressed?
A: The AG opinion explicitly warned against this. Even assuming evidence could no longer be suppressed under Measure 40, an officer who "knowingly implements an unlawful DUII roadblock" risked civil liability and criminal prosecution, both individually and for the employing agency.
Q: Why did the multilingual consent form remain mandatory?
A: Civil in rem forfeiture of property seized after a consent search required the consenting party to have received a written multilingual notice of the right to refuse, per Oregon Laws 1993, ch. 699, § 20. Measure 40 addressed criminal-case evidence rules. It did not change civil-forfeiture preconditions. Skipping the form would forfeit the forfeiture remedy.
Q: Could a court eventually narrow this opinion?
A: Yes. The opinion itself noted that the constitutionality of Measure 40 and the meaning of its provisions were pending in various cases. The Oregon Supreme Court ultimately invalidated Measure 40 in Armatta v. Kitzhaber (1998), so the underlying premises shifted not long after this opinion issued.
Background and statutory framework
The pre-existing rule in Oregon was strict: under Nelson v. Lane County, no roadblock or warrantless investigative stop was permissible without explicit legislative authorization. State v. Bridewell reaffirmed this principle the following year. Without such a statute in place, DUII checkpoints simply were not available to Oregon law enforcement, no matter what their constitutional status would otherwise be.
Measure 40 was a victims' rights measure. It guaranteed admissibility of relevant evidence against criminal defendants and directed Oregon courts not to read Article I, sections 9 and 12 more broadly than the federal Fourth and Fifth Amendments. The AG's view was that this did nothing to create the authorizing statute Nelson required.
For drug-interdiction consent searches, the controlling provision was Oregon Laws 1993, chapter 699, section 20, which conditioned civil in rem forfeiture of property seized via consent search on prior multilingual written notice of the right to refuse consent.
Citations and references
Authorities:
- Article I, section 9, Oregon Constitution
- Fourth Amendment, U.S. Constitution
- Ballot Measure 40 (Nov. 1996)
- Oregon Laws 1993, chapter 699, section 20, multilingual consent notice for civil in rem forfeiture
Cases:
- Nelson v. Lane County, 304 Or 97, 743 P2d 692 (1987), no roadblock without explicit statutory authorization
- State v. Bridewell, 306 Or 231, 759 P2d 1054 (1988), reaffirming Nelson's authorization rule
Source
- Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
- Original PDF: https://www.doj.state.or.us/wp-content/uploads/1997/03/op1997-2.pdf
Original opinion text
March 18, 1997
James H. Stevenson, Captain
Patrol Services Division
Oregon State Police
400 Public Service Bldg.
Salem, OR 97310
Re: Opinion Request OP-1997-2
Dear Captain Stevenson:
You ask whether Measure 40, which was approved by the people in last November's general election,
changes Oregon law with respect to the legality of roadblocks used to detect persons driving under the
influence of intoxicants (DUII roadblocks). We conclude that it does not. DUII roadblocks are not
permissible absent legislation authorizing a DUII roadblock program, and no authorizing legislation
exists at this time. You also ask whether the Oregon State Police (OSP) must continue to use the "Notice
and Consent to Search Multi-Lingual Form" when conducting a drug interdiction search. We conclude
that the notice and consent form must continue to be used for purposes of civil in rem forfeiture
proceedings.
1. DUII Roadblocks
In Nelson v. Lane County, 304 Or 97, 104, 743 P2d 692 (1987), the Oregon Supreme Court announced
that in Oregon, any inquiry about the legality of roadblocks (or any other search) must begin with the
question of statutory authority: Does any statute explicitly authorize law enforcement officials to conduct
this action? If the answer is no -- which it was at the time of Nelson and still is -- then the inquiry ends.
State v. Bridewell, 306 Or 231, 239, 759 P2d 1054 (1988). No roadblocks may occur without explicit
authorizing legislation. If such legislation exists, then (and only then) will the court ask whether that
statute meets constitutional requirements.
Nothing in Measure 40 alters the holding in Nelson v. Lane County. The measure is directed to the
admission of relevant evidence and provides that Article I, section 9, of the Oregon Constitution
(governing searches and seizures) should not be construed more broadly than the analogous provisions of
the Fourth Amendment to the United States Constitution. See Measure 40, subsections (1)(f) and (2).(1)
Thus, the measure by its terms neither provides the necessary authority to conduct DUII roadblocks nor
makes legislatively granted authority unnecessary.(2) Whatever bearing Measure 40 might have on the
constitutional analysis that would apply to DUII roadblock stops, it does not cure the defect that the court
identified in Nelson, and it therefore does not make them lawful.(3)
2. Drug Interdiction Consent Searches
The second part of your question asks if OSP must continue to use the "Notice and Consent to Search
Multi-Lingual Form" when conducting a drug interdiction consent search. Our understanding is that OSP
officers follow the notice and consent procedure in order to meet the requirements of Oregon Laws 1993,
chapter 699, section 20. The statute provides that in order for property seized on the basis of a consensual
search of a motor vehicle to be subject to civil in rem forfeiture, the person who consented to the search
must have been provided with written, multilingual notice of his or her right to refuse to consent to the
search. The statute specifies the details of the notice required.
Measure 40 does not alter the obligation to comply with the statute. As stated above, Measure 40 is
directed to the admissibility of evidence in a criminal case. The legislature has conditioned civil
forfeitures in certain cases on compliance with the multilingual notice; without that notice, civil in rem
forfeiture remains unavailable in those cases.
Sincerely,
Donald C. Arnold
Chief Counsel
General Counsel Division
-
Measure 40, subsection (1)(f) confers on victims in criminal cases the right to have all relevant evidence admissible against the criminal defendant. Subsection (2) provides:
The rights conferred on victims by this section shall be limited only to the extent required by the United States Constitution; Section 9, Article I and Section 12, Article I of this Constitution shall not be construed more broadly than the United States Constitution and in criminal cases involving a victim, the validity of prior convictions shall not be litigated except to the extent required by the United States Constitution. -
Measure 40 means that evidence seized unlawfully may not be suppressed for that reason. We cannot and do not advise that law enforcement officers should violate the law, even though under Measure 40 the fruits of their unlawful conduct may be used against the defendant. To the contrary, we explicitly and unambiguously advise that an officer who knowingly implements an unlawful DUII roadblock in order to secure unlawfully seized but nonetheless admissible evidence potentially exposes himself or herself, as well as his or her public employer, to civil liability and criminal prosecution.
-
Even if the necessary legislative authorization were present, questions about the constitutionality of DUII roadblocks remain. Measure 40 may have potential bearing on those questions. The constitutionality of Measure 40 itself has been raised in several pending court cases. After the Oregon Supreme Court resolves questions of Measure 40's constitutionality and the meaning of subsection (2), we will be in a better position to address what effect, if any, Measure 40 has on the constitutionality of DUII roadblocks. For present purposes, however, your question is fully answered by the lack of legislative authority to conduct such roadblocks.