It is important to realize that changes may occur in this area of law. This information is not intended to be legal advice regarding your particular problem, and it is not intended to replace the work of an attorney.
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 jail, large fines, a license suspension and other
penalties.
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.
A breath test is used to determine how much alcohol is in your blood
stream — your blood alcohol content. 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.
The outcome of a criminal charge (in court) of Driving Under the Influence
of Intoxicants will not affect the DMV’s suspension. Even if
the DUII charge is not filed in court or later dismissed, the DMV will
suspend your license for breath test failure or refusal.
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 is very strict for persons
under 21 years old; if the tests reveal any alcohol at all in your
system, the test is considered a failure 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 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 suspensions for breath test failure or refusal are even
longer if you have previously been convicted of Driving Under the Influence
of Intoxicants 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 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.
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 (drugs) and 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. Refusing to take a urine test
can result in additional suspension of a driver/s license.
If you are facing suspension for refusing or failing the test, you
have the right to an administrative hearing. The administrative law
judge will be concerned with three major issues: First, were you under
arrest for DUII when the test was offered? Second, did the officer
have reasonable grounds to believe that you were driving under the
influence? Third, did the officer advise you of the consequences of
refusal under the Implied Consent Law? The officer must advise you
that if you refuse to take the test or fail the test, your driver license
will be suspended. You also must be provided with a written copy of
these rights and procedures.
The law provides only 10 days after the arrest for DMV to receive a
hearing request. If you have refused or failed the breath test, you
may want to quickly consult a lawyer for advice about requesting a
hearing with the DMV. You should not wait until your court date. If
you lose the hearing, you may appeal the suspension to the circuit
court. The suspension will still be in effect during the appeal process.
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. 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: The Hon. Steven A Todd, July 2008