This topic discusses the “Implied Consent Law” regarding breath tests, what breath tests determine and the consequences resulting from refusing to take the test or failing the test. The DMV administrative hearings process and your rights as a driver also are discussed.
Driving while under the influence of intoxicants is one of the most serious traffic offenses. If you are found guilty of this crime, you will be sentenced to a minimum of two days in jail (up to one year on a misdemeanor) or 80 hours community service, a license suspension, an ignition interlock device, large fines and other penalties. A third DUII conviction results in a lifetime license revocation (with the possibility of obtaining a license after 10 years). If the three convictions are within 10 years it is a felony DUII.
Whenever you drive on a public highway or an area that is open to the public, you are subject to the “implied consent law” found in the Oregon Vehicle Code. This means that just by the act of driving, you automatically agree to take a breath test if you are arrested by a police officer on probable cause for driving under the influence of intoxicants. In Oregon, the definition of driving is premised on the vehicle moving. Sleeping in a parked car is not driving, but if you drove to the location when you were under the influence of alcohol, that can be enough evidence for the state to charge you with DUII.
A breath test is an estimate of your blood alcohol level. The test result is used to determine whether you were driving under the influence of intoxicants. If you refuse or fail the breath test, the police officer will take your license and give you a temporary license. Then the Motor Vehicles Division (DMV) will suspend your driving privileges 30 days after the date of arrest unless you fight the suspension by demanding a hearing. It is critical to request a hearing within 10 days of the arrest. You can request your own hearing at the DMV website, but if you want an attorney to help, it is best to allow the attorney to make the request. The outcome of a criminal charge (in court) of driving under the influence of intoxicants will not affect the DMV’s suspension. Likewise the outcome at the DMV hearing will not affect the criminal case. Even if the DUII charge is not filed in court or is later dismissed, the DMV will suspend your license for breath test failure or refusal. The DMV hearing date is separate from all court dates associated with your criminal case. The DMV is independent from the criminal court.
The main reason people request a DMV hearing is to contest the license suspension. There are no additional penalties if you contest the DMV hearing and lose compared to not having a hearing; the outcome would be the same. If you prevail at the DMV hearing and lose the criminal case, often times it will allow a hardship permit to be issued by the court. A loss at the DMV hearing if you have a prior conviction can prevent the criminal court judge from authorizing a hardship permit. Another reason for contesting the suspension is the opportunity to question the state’s evidence against you to better evaluate your case.
You will fail the breath test if it shows your blood alcohol level is .08 percent or higher. The law is stricter for truck drivers; if you were driving a commercial vehicle you will fail the test if the result is .04 percent or higher. The law has zero tolerance for persons under 21 years old; if the tests reveal any alcohol at all in your system, the test is considered failed and you will be suspended. (Keep in mind that even if you pass the test and escape a license suspension, the result can still be used as evidence in a DUII prosecution in court.) License suspension by the DMV for failing the test is for 90 days. Refusing to take the test is more serious; the suspension is for at least one year, and you must wait at least 90 days for a hardship permit, even if you qualify. Refusing the test is a traffic violation in itself. If you are convicted of refusing a breath test, the fine will be at least $500 and can be up to $1,000.
The license suspension for breath test failure or refusal is for three years if you have previously been convicted of driving under the influence of intoxicants or entered diversion in the last five years or have been previously suspended for refusing or failing a breath test.
After taking the test, you will have a reasonable opportunity, upon your request, to have a blood alcohol test performed by a qualified person of your choice. Any test you request will be at your own expense; all the police are required to do is to give you a reasonable opportunity for this.
Upon request, you have the right to a reasonable opportunity to contact a lawyer before you take the breath test. If you are denied a reasonable opportunity to contact a lawyer after requesting to do so, the results of the test may not be used in court, or a Motor Vehicles Division hearing. If you refuse to take the test after consulting with a lawyer, your refusal can be used against you in court or a hearing. It is your right to decide to take the breath test or refuse.
If you were involved in an accident and are being treated at a hospital, a breath test may be impractical. In that situation, the law provides a blood test may be taken instead. Just as with the breath test, you may take or refuse the test. The consequences for refusal or failure are the same. The police can also get a test of your blood or urine if you are unconscious or otherwise incapable of giving consent. In any situation, they must have reasonable grounds to believe you were driving under the influence of intoxicants. There can still be a suspension for failing a blood test, but the police must submit the blood results to DMV within 60 days of the arrest to trigger the suspension.
The crime of driving under the influence of intoxicants usually involves alcohol consumption, but the law also prohibits driving under the influence of other intoxicants, such as controlled substances (marijuana and other drugs) or inhalants. If you pass a breath test for alcohol, the police can request urine sample if they have grounds to believe you are under the influence of intoxicants other than alcohol. They can also request a urine sample if you are involved in an accident resulting in injury or property damage. The police officer needs to have training in drug recognition, and needs to provide reasonable privacy. If you pass a breath test for alcohol and then fail a urine test for controlled substances, your driver’s license will not get automatically suspended as it would if you failed a test for alcohol. However, refusing to take a urine test can result in additional suspension of a driver’s license. You can refuse a urine test only if you provide a doctor’s note explaining that you have a medical condition that makes providing a urine sample impossible.
In some situations, the police will want to get a blood or urine test even without your consent. They can do this by submitting an affidavit of probable cause and getting a search warrant from a judge. If the police chose to follow this route, the provisions of the implied consent law do not apply. If the police get a search warrant, they do not need your consent. Again, you should consult with a lawyer if you have any questions.
Remember, the implied consent law states that if you are arrested for driving a motor vehicle while under the influence of intoxicants, you are deemed to have given consent to a chemical breath test to determine the alcoholic content of your blood. You may refuse, but you will face a longer suspension of your driving privileges and the refusal may be used against you in court. It is very important to attempt to speak with an attorney prior to taking a breath test because there are a variety of factors that could change the advice a lawyer would give depending on how much you had to drink and based on your criminal history. If you take the test, whether you fail it or not, the results can be used against you. Also, remember that if you refuse or fail the test, your license will be suspended by the Motor Vehicles Division 30 days after the arrest — unless you prevail at a hearing. The suspension will take place even if you are later found not guilty in the court of the criminal charge of driving while under the influence of intoxicants, or even if no charges are ever filed in court.
Legal Editor: Jeff Jorgensen, May 2016