Oregon’s Motorist Implied Consent Law: Refusal to Take a Blood Breath, or Urine Test

If you are stopped for driving under the influence of intoxicants in Oregon, can you refuse chemical testing?

Under Oregon’s implied consent law, any person who operates a motor vehicle on a highway or premises open to the public is deemed to have given consent to a chemical test of the person’s breath, blood, and/or urine. In order to request a chemical test, a police officer must have reasonable grounds to believe the person was driving under the influence of intoxicants (DUII) and have the person under arrest.

An officer who has reasonable grounds to believe the person arrested is under the influence of alcohol will typically request a breath test. Blood tests are normally used if the person is receiving medical care in a health care facility after a motor vehicle accident. An officer will usually request a urine test if there are reasonable grounds to believe the person arrested is under the influence of cannabis, a controlled substance, and/or an inhalant and either:

  • a breath test discloses a blood alcohol content (BAC) of less than .08%, or
  • the person was involved in an accident involving injury or property damage.

To request a urine test, the officer must be certified in recognition of drug-impaired driving and the person asked to give a urine sample must be given privacy to do so.

Consequences of Refusing a Test

Before requesting a chemical test, the arresting officer must advise drivers of their rights and the consequences of failing or refusing a test. Consequences of refusing a test include a traffic violation fine, driver’s license suspension, and evidence of the refusal being used against the defendant in the criminal case.

Traffic Violation

A motorist who refuses to submit to chemical testing commits a traffic violation offense. The presumptive fine is $650. However, the fine can range from $500 to $1,000.

Administrative Suspension

The Oregon Department of Motor Vehicles (DMV) will suspend the offender’s driving privileges for one year for refusing a breath, blood, or urine test. The suspension is increased to three years if the offender refused a test, and is presently participating in a DUII diversion program or, within five years prior to the arrest, the offender:

  • was convicted of a DUII
  • participated in a diversion or similar alcohol/drug program, or
  • had driving privileges suspended under the implied consent law.

A suspension for refusing to take a urine test is consecutive to any other suspension imposed under the implied consent laws. However, no suspension is imposed for refusing to provide a urine sample if the driver provides documentation from a physician showing that a medical condition makes it impossible for the person to provide such a sample.

When a driver refuses to take a test, the arresting officer will immediately take the person’s license and will issue a temporary 30-day driving permit. The driver’s license will automatically be suspended 30 days after the refusal.

A driver whose license has been suspended for refusing a chemical test is entitled to a DMV hearing to determine whether the suspension is valid. A hearing must be requested in writing by the tenth day following the arrest for DUII. If the suspension is found to be valid at the DMV hearing, it will occur even if the person is later found not guilty of DUII.

The offender may apply for a “hardship permit” after completing a waiting period of 90 days to three years, depending on the circumstances. A hardship permit allows a person with a suspended license to drive to work, medical appointments, and drug/alcohol treatment.

Evidence of the Refusal Can Be Used Against a Defendant in a Criminal Case

Another consequence of refusing a chemical test is that the prosecutor is allowed to present evidence of the refusal in the criminal case and can suggest to the judge or jury that the refusal is evidence of guilt. In other words, the prosecutor can argue that you refused the test because you knew you would fail. Therefore, a defendant can be found guilty of a DUII even without breath, blood, or urine test results.

Deciding Whether to Submit to Chemical Testing

Generally, a driver can refuse to submit to testing. But the penalties the driver will face for refusal are harsher than those for a failed test.

Oregon law requires officers to provide drivers a “reasonable opportunity” to speak with an attorney before deciding whether to take or refuse a test. Basically, a “reasonable opportunity” means accommodating a request that doesn’t interfere with the officer’s ability to properly administer the chemical test or perform other official duties. Therefore, a driver isn’t guaranteed the right to speak with an attorney or to have an attorney present during chemical testing.

There are also circumstances allowing police to obtain a chemical test without the driver’s consent. If a driver is unconscious or is otherwise unable to provide consent, police can obtain a breath, blood, or urine sample as long as the officer has probable cause to believe the person was driving under the influence of intoxicants and that evidence of the offense will be found in the person’s blood or urine. Police can also obtain a chemical test of a person’s breath, blood, or urine without consent by getting a search warrant from a judge.

Talk to an Attorney

The DUII statutes and implied consent laws in Oregon are complex, and the consequences of a DUII arrest can be severe. If you have been arrested for a DUII, you should get in touch with a criminal defense attorney in your area who can assist with your case.

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