Understanding the Implied Consent Law in Oregon

Implied Consent Explained in Oregon

In Oregon, as in most states, there are laws governing implied consent. Implied consent is the law that says by virtue of getting behind the wheel of a motor vehicle, you must have consented to the State requesting a chemical test in the form of saliva, breath or blood. If after properly requesting a chemical test, a person refuses to submit to the test, then the penalties are harsh.
When the police arrest you for Driving Under the Influence, they will ask that you blow into a breath device. This is the implied consent law at work. They will then require you to submit to another test , usually blood or urine, if it is necessary to confirm blood alcohol content or if there is suspicion of the use of drugs (not alcohol). If you are arrested but do not perform a breath test, the implied consent law is still in effect and you must submit to a blood or urine test, or have your driver’s license suspended.
The intended outcome of the law is to encourage individuals to submit to a chemical test if requested while at the same time providing an avenue on the back end for the appeal of a license suspension when there was an improper arrest.

Oregon’s Implied Consent Statute

The relevant key provisions of Oregon’s Implied Consent law are the requirement to take breath test and the penalties that await those who do not comply with this law. When someone is arrested for Driving Under the Influence, they are required by the most common law enforcement agency in Oregon (the Oregon State Police (OSP) and other law enforcement agencies who work for OSP like Troopers), to take a breath test or give a blood sample under Oregon’s Implied Consent law. This law requires you to submit to a breath test in cases where you have been arrested for Driving Under the Influence. However, the law only applies to those people operating (driving) on public roads in Oregon. It does not apply to people operating in their own yard.
If an officer believes you are Driving Under the Influence, he or she will promptly read you a copy of the Oregon Implied Consent law, as it appears in ORS 813.100. The officer typically reads this provision from a sheet of paper, while asking you questions about your license status. This requirement is spelled out in ORS 813.100(1) which states: When a person who operates a motor vehicle on a highway or premises open to the public is arrested for driving while under the influence of intoxicating liquor or a controlled substance, the arresting officer shall inform the person:
(a) Of the immediate and automatic suspension of driving privileges, if any, that will result from a refusal to submit to a chemical test under ORS 813.132.
(b) That requested chemical tests administered at the direction of the arresting officer under ORS 813.136 or 813.139 may be used for evidentiary purposes in a court of law.
(c) Of necessary procedures, conditions or limitations to preserve the driver’s administrative right to a hearing as provided in ORS 813.410. (1977 c.746 §8; 1983 c.342 §2; 1985 c.400 §2; 1987 c.157 §1; 1991 c.544 §15; 1993 c.189 §6).
Oregon’s Implied Consent law applies in any of the following situations:

• (1) You operate a motor vehicle on a highway or premises open to the public after you have been given actual notice that you are prohibited from doing so.
• (2) You are involved in an accident on a highway or premises open to the public; or crash your motor vehicle on any highway or premises open to the public; or collide with another motor vehicle on a highway or premises open to the public; and your license is expired, suspended, revoked, canceled or restricted.
• (3) A law enforcement officer arrests you for Operating Under the Influence of intoxicants and properly administers Oregon’s Implied Consent Law Warning to you as described above (as required by ORS 813.100).

Implied Consent Process

While the field sobriety test is voluntary and refusal will have no legal consequences, the chemical test is mandatory. Therefore both laws are generally enforced by the arresting officer in the circumstances described above. If you refuse the breath or blood test, however, an additional civil proceeding is initiated. The officer will take your Oregon driver’s license, driving privileges or permit, if any; and issue a notice of suspension or revocation. An additional notice will also be issued to anyone who holds a driver’s license from another state which may also trigger action by the motor vehicle authorities in that state. If you hold, and/or operate a vehicle, registered in Oregon you will also likely receive a notice from the Motor Vehicle Division (MVD), further advising you of the suspension and your rights. This notice will include the opportunity to request a hearing on behalf of yourself and/or any vehicle owner who is also affected by the detention and seizure of the registration and license plates. Under the law, you can request a hearing within 20 days of receipt of the notice. That hearing will not occur until after surrender of your license or vehicle registration card. The MVD will then conduct the hearing, which may be held by telephone or in person at the local MVD office or by a hearing officer. The MVD has the authority to suspend your driving privileges for 90 days to 3 years, depending on your blood alcohol concentration level. It will also be in order to cancel or revoke an out-of-state driver’s license. Note that your vehicle registration or license plate may be returned prior to the suspension period, which is generally no more than 90 days. You may also be required to surrender the vehicle registration and license plates to MVD. The cancellation and seizure will be lifted, however, if there is a determination in your favor relative to the implied consent law applicability. The notice of suspension is also not effective if you file a petition with the appropriate court within 10 days. The notice will, however, remain in effect until the court enters an order reversing it. After the hearing, if any, the MVD will issue a final order advising both you and the department of its decision. This order will then be subject to review by way of extraordinary writ by the Oregon Court of Appeals. If contested the case may be assigned to any court.

Driver Rights and Consequences

One of the most common defenses potential DUI clients have is: "I did not think I was drunk or impaired." It is not a valid defense. The client invariably tells me that he/she was confident they had not consumed enough alcohol to warrant being stopped and arrested.
The law does not allow this defense. The law in Oregon requires evidence that the driver was ‘under the influence of intoxicants’ – a term defined to include a person who is legally intoxicated due to alcohol, but also one who has lost the normal use of their physical or mental faculties to any degree because of alcohol, drugs or controlled substances. The law also requires that that loss of normal use must be caused by the consumption of alcohol, drugs or controlled substances. The law does not require a blood or breath test to measure a person’s blood alcohol content. As long as the client is physically impaired, we do not need a BAC test. If the case is tried, the judge and jury will look at all the evidence, including blood alcohol content, if available, but for the court to find a person guilty, the prosecutor must prove the person was physically impaired ‘to any appreciable degree.’
What is a person to do? As soon as the officer begins an inquiry regarding drinking and driving, politely decline to answer any questions or take standardized field sobriety tests. Everything you say and do will be used against you in court, so it is better not to say anything at all. Most people believe answering questions is mandatory. Dismiss that thought. You have the right to remain silent. What is mandatory, however, is post arrest detention at the police station, where you are required to provide a breath sample on a breath test machine. We have found that even when there is a reading over .08 BAC, there can be several defenses, including blow this: no breath test, no blood alcohol content.

Refusal Consequences: Fines and License Suspension

Oregon’s Implied Consent Law carries the hammer of fines and license suspension to those who refuse the chemical tests—at least that’s what the law should do based on the "implied consent" portion of the law.
However, both the potential fines and the suspension period are tied to whether or not the driver has been cited for DUII. For a driver over 21 in Oregon who is cited for DUII, there will be an immediate 90-day suspension of their driving privileges for refusing the tests. Also, if the DUII conviction were to stand, there would be an additional suspension period. Depending on the BAC and whether or not there are any prior convictions within the past 15 years, the driver could potentially lose their license for several years .
For example, a driver with a prior DUII conviction within the past 15 years who tested at .08 will face a 90-day suspension and then either a 1- or 3-year suspension (subject to being reduced to 90 days). If this driver were to refuse the breath test, the initial suspension would still be for 90 days, but the driver would face a minimum 3-year suspension for the refusal, along with the 1- or 3-year suspension for the DUII.
If the person is under 21 and refuses the chemical tests, there will be an automatic one-year suspension of driving privileges. If cited for DUII, the person will face an additional suspension of at least 90 days, or a maximum of 1 year or the equivalent.

Contesting an Implied Consent Suspension

A hearing request must be made within 10 days of the arrest to preserve the right to challenge the implied consent suspension, or, in the case of a breath test refusal, the right to challenge the refusal to give a breath sample. Your lawyer will submit a hearing request to the ODOT Traffic Safety Section – usually online. There are essentially four grounds for challenging an implied consent suspension: The hearing is a very important opportunity to challenge the legality of the stop and the arrest. If these issues are decided against you, substantial penalties may result. For example, a DUII criminal conviction may be harder to defend, driving privileges may be suspended and your insurance rates may increase significantly. The hearing is very short, usually no more than 30 minutes, and it is not conducted like a regular court proceeding. The hearing officer will ask questions and expect most of the testimony to come from the defendant and the witnesses. Key witnesses such as the arresting officer, the breath test operator, and on occasion, eyewitnesses such as crash victims and passengers may also be required to testify. The hearing will likely take place very quickly because the law provides for prompt decision-making by the hearing officer. If a criminal case is pending the hearing may be set over until after the criminal case is resolved. If the hearing is a "refusal" hearing, special considerations exist because the implied consent suspension can be imposed more harshly upon a refusal conviction. In order for the state to prove a defendant was driving recklessly, the night of the traffic stop is the only time that reckless behavior may be evidence to support a refusal conviction. In other words, the arresting officer was not present at the time of the incident and could not observe the defendant’s driving behavior. For this reason, improprieties of the arrest must be considered to determine if the arresting officer’s testimony can be supported by the evidence. For the defendant, the consequences of the hearing order are usually dire. The hearing order is often final agency action and is used in the criminal case, should that be necessary, to the extent the issues have been preserved. The hearing is not "evidence" but may be used like evidence. The hearing order will normally destroy the defense, which is why the warning and the arrest are so important in a DUII case.

Frequently Asked Questions about the Implied Consent Statute in Oregon

Q: What does it mean to "refuse" a breath test in Oregon?
A: Refusing a breath test, or saying "no" when asked by a law enforcement officer to blow into a breathalyzer on either the portable breath test (PBT) or state breath test, means that you may not be willing to have your blood alcohol content (BAC) measured by a chemical breath test. If you refuse the breath test, penalties and license suspensions are severe.
Q: How does the implied consent law impact me?
A: The immediate effect of the implied consent law means that if you reasonably believe you would fail a breath test, you cannot take the breath test and you are better off just declining to take the test. However, under ORS 813.410 , the law allows a police officer the opportunity to require you to submit to a breath test (PBT or state breath test) even if you believe you would fail the test. Failure to submit to the breath test results in license suspension.
Q: Who is presumed impaired under Oregon’s implied consent law?
A: A driver who fails to submit to a breath test under ORS 813.100(2). You are also presumed impaired if you submit to a breath test and your BAC reading was at or above the limit (.08 for drivers 21 and older; .00 for drivers younger than 21; blood alcohol level ranges live between .05 and .08 often result in other penalties that can impact your insurance rates and reverse insurance rates).
Q: When is my driving privilege suspended under the implied consent law?
A: Under the implied consent law, if you are arrested for DUI under ORS Chapter 813 and fail to submit to a breath test (PBT along roadside check or state breath test at jail), your right to drive will be suspended as of the time of arrest.
Q: What are the penalties if I refuse the breath test and don’t submit?
A: The immediate penalty for failing to submit is license suspension. The penalties are as follows:
Q: Are there any time limits under the implied consent law?
A: Yes. The Department of Transportation will only start the suspension up to 90 days after oral notice of suspension.