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Do I have to submit to a breath test?  

On Behalf of | Dec 20, 2021 | DUI |

Driving under the influence of alcohol or intoxicants has serious consequences. It is important to know your rights under Oregon’s implied consent law concerning breath testing

Implied consent

DUI is one of the most serious traffic offenses. If convicted, drivers may be sentenced to up to two days in jail and up to one year for a misdemeanor conviction. Other penalties include up to 80 hours of community service, license suspension, and interlock device installation.

Oregon’s Vehicle Code contains an implied consent law that governs driving on an open public highway and impacts the criminal defense that you can present. By driving, you legally consented to a breath test if you are ever arrested by police on probable cause for driving under the influence of intoxicants.

Implied consent applies only to moving vehicles. Sleeping in a parked vehicle is not driving.

Breath test

Breath tests estimate blood alcohol levels. Results may be used to determine whether the motorist was driving under the influence of alcohol or intoxicants.

A blood alcohol concentration of at least 0.08&  is a breath test failure. For commercial driver, a BAC of 0.04% is a failure.

Drivers under 21 fail if they have any alcohol in their system and their license will be suspended for 90 days. Test results for all drivers under 0.08% may be used in a criminal prosecution.


The Department of Motor Vehicles will suspend drivers’ licenses for refusal or failing the test 30 days after the arrest unless a hearing is demanded to contest the suspension. Suspensions last one year and there is a 90 day wait for a hardship permit. Penalties increase if there are previous DUI convictions.

Acquittal of DUI charges will not lift the refusal suspension. Test refusal is also a criminal offense punishable by a fine of $500 to $1,000.

Blood tests

A breath test may be impracticable if the driver was in an accident and receiving treatment at a hospital. Oregon law allows a blood test in this type of situation.

Refusing these tests has the same consequences of refusing a breath test. Police may also use a blood or urine test if the motorist is unconscious or unable to consent.

Other intoxicants

If a driver passes a chemical breath test, police can request a urine sample if they have grounds to believe the motorist is under the influence of marijuana or other drugs. They may also request a sample if the driver was in accident involving an injury or property damage. Refusal of a urine test may lead to license suspension.

Try to speak to an attorney before consenting to a test. Attorneys can help protect your rights.