Oregon Implied Consent Law: What Happens if I Refuse to Take a Chemical Test?

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Most states in the U. S. have an implied consent law, including Oregon. Driving while impaired can result in a misdemeanor DUII charge with a few days in jail, a license suspension and a fine for first offenders, or it could result in a felony charge with prison time and a lifetime license revocation for multiple offenses, among other penalties. Anyone driving a vehicle on a public highway in the state automatically gives consent to a chemical test of their blood, breath or urine if law enforcement suspects impairment.

If a driver refuses a chemical test in Oregon, that person faces immediate confiscation of their license. Law enforcement may give a driver a temporary permit if that driver meets certain conditions. If not, the person refusing the chemical test loses their driving privileges at the moment an officer confiscates their license.

How Oregon Defines Driving Impairment

States have different terminology for impairment while operating a vehicle. Some use driving under the influence (DUI), while others use driving while intoxicated (DWI). Oregon uses the term driving under the influence of intoxicants (DUII), which applies to impairment from alcohol or drugs, or a combination of both. According to ORS Section 801.590, a vehicle is a mode of transportation for use on a public highway "powered or propelled by any means," which describes a bike as well as a car. ORS Section 366.005 further describes a highway as "every public way, road, street, thoroughfare and place, including bridges, viaducts and other structures within the boundaries of this state, open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right."

ORS Section 813.100 describes a DUII as driving a vehicle on a public highway or premises while under the influence. This means the driver:

  • Has a blood alcohol concentration (BAC) level of at least 0.08 percent.
  • Is impaired by alcohol, cannabis, inhalants or other controlled substances.
  • Is impaired by a combination of some or all of the above.
  • Shows adverse mental or physical abilities due to these intoxicants. These do not have to be overt, but can still deprive them of the clarity or control they usually have.

Implied Consent and Breath or Blood Tests

When operating a vehicle on an Oregon public highway, drivers automatically give consent to a chemical test of their blood, breath or urine if a police officer suspects impairment. Before administering a breathalyzer or chemical test, the officer informs the driver of their rights and the consequences they face for refusing the test or for taking and failing it, according to ORS Section 813.130.

If drivers fail the test or refuse to take a blood or breath test after being informed of their rights and consequences, they will face immediate suspension of their driving privileges. In this instance, law enforcement will:

  • Confiscate their driver's license or permit.
  • Give the driver written notice of suspension via prepared forms from the Oregon Department of Transportation,

Driver and Motor Vehicle Services Division (DMV). The notice also describes their rights and the consequences they face when refusing a chemical test.

  • Give the driver a temporary permit after the confiscation of their license, if they are eligible under ORS Section 813.110. A driver is ineligible for a temporary permit if their license was already suspended, revoked or canceled, was invalid or expired, was not entitled to drive for another reason, or has an out-of-state license.
  • Report the arrest and confiscation to the police department with a license or permit and suspension notice.

Urine Tests and Implied Consent

Under ORS Section 813.140, a law enforcement officer may ask a driver to take a urine test, particularly if that driver is suspected to be impaired by drugs, such as cannabis or inhalants. As with other chemical tests, a driver that refuses a urine test could face immediate license suspension and confiscation. A urine test is possible if the driver takes a breath test and shows a BAC of less than the legal limit of 0.08 percent, and if the driver's impairment results in injury or property damage.

Officers cannot ask for a urine sample unless they've been certified by the Oregon Department of Public Safety Standards and Training showing that they have completed a minimum of eight hours of coursework in recognition of drug-impaired driving. Law enforcement must also have reasonable suspicion that the driver is impaired and must give the driver privacy when taking the test. The results of a urine test are considered admissible evidence in court and can be used with other evidence to prove a driver's impairment, but test results are only valid when performed by an accredited or licensed toxicology lab.

Oregon's Implied Consent Law and Field Sobriety Testing

A driver automatically gives consent to a field sobriety test, as well as chemical tests, when getting behind the wheel, according to ORS Section 813.135. Law enforcement gives drivers these physical tests to determine impairment if they suspect that a driver is under the influence of alcohol, drugs or a combination of both. Officers can ask a driver to stand on one leg, walk a straight line or recite a series of letters or numbers in a specific order.

There is no requirement that a driver must submit to a field sobriety test. However, law enforcement must give that driver a warning about the circumstances they face for refusing to take the test. As long as the driver was given appropriate notice from law enforcement, the court can allow their refusal as evidence against them in a DUII case.

Penalties for Test Refusal in Oregon

After refusing a chemical test and the immediate confiscation of their driver's license, that driver can face Oregon DMV administrative penalties, according to NOLO, including:

  • A maximum of $1,000 in fines and a license suspension of one year for the first offense.
  • A maximum of $1,000 in fines and a three-year driver's license suspension for second or subsequent offenses within five years of the first offense.

These penalties also apply to those who are already participating in a DUII diversion program.

Law enforcement will inform the driver that they have the right to contest their license suspension at a DMV hearing. The driver must request the DMV administrative hearing within 10 days of refusing a chemical test. In some instances, an attorney can attend the hearing on a driver's behalf. If the DMV upholds a driver's license suspension, or a driver does not request a hearing in the allotted time, that person can apply for a hardship permit or license after having served the suspension for at least 90 days, provided they do not have DUII convictions in the five years prior. Hardship licenses are not guaranteed by the DMV and issued only on a case-by-case basis.