Portland Criminal Defense

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Law Office of
John E. Gutbezahl, LLC

5 Centerpointe Drive Suite 400
Lake Oswego, Oregon 97035

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Portland Criminal Attorney

Portland DUII Attorney

Home > Practice Areas > Breathalyzer Test

Attorney Representation in Portland, Oregon for over 15 years

If you are pulled over in Oregon by a police officer who suspects you are driving under the influence (DUI) and who then insists you take a breath, blood or urine test, are you obligated to do so? What would be the consequences should you stand upon your 5th Amendment rights and refuse the test? Oregon is among the states that adhere to the “implied consent” doctrine. This legal theory purports that by signing your license, you stipulate to forego your right against self- incrimination. Such a doctrine compels a driver to exchanging an inalienable natural right for the state-granted privilege of operating a motor vehicle on public highways and assumes that such an abnegation of rights is knowing and consensual. One can argue endlessly the untenable nature of this arrangement, but such is the state of the law.

Refusing a DUI Breathazlyzer

So, should you refuse to take a DUI test if you are arrested? For those who stand on the 5th Amendment, they should understand that under no circumstance can you be forced to take such a test. A refusal, however, generally engenders some severe reactive backlash from authorities. An officer who suspects you are impaired may ask to check your blood alcohol content (BAC) by blowing into a machine. Requests for blood tests are usually reserved for incidents involving an accident and/or personal injury. In such case police can ask you for a blood sample withdrawn by qualified, on-scene medical personal who are administering aid, which you can also refuse. In case the accident left you unconscious, this blood sample can be procured without your permission. Furthermore the State can obtain a search warrant to draw your blood whether you consent or not.

Rules Regarding a DUII Breathalyzer in Portland

As a rule of thumb you are generally not well served by refusing a chemical test. A first conviction DUI in Oregon will net you two days in jail and a $1,000 fine. The refusal penalty is a $500 to $1,000 fine and a one-year license suspension. And even with the refusal, you may still be found guilty, in which case they will “throw the book at you”. So, clearly the penalties have been structured to ensure your compliance. And while we admire those who stand on principle and refuse such tests, as a practical matter compliance is usually the best choice.

If you or a loved one has been charged with a DUII offense, whether your first or a repeat offense, don't hesitate to call us at The Law Offices of John Gutbezahl, LLC. immediately at 503-594-1919. We will advise you of your best options and pick up the ball for your defense. Your initial consultation with us is free of charge.

1st Offense
2nd Offense
3rd Offense
Refusal to take test
1 year license suspension; fine of $500 - $1,000
3 year license suspension; fine of $500 - $1,000
3 year license suspension; fine of $500 - $1,000


The officer cannot make you take a test once you refuse it. He or she can take your license immediately, however. It it’s place, the officer will give you a temporary permit, which is good for 30 days. You should also get information on how and when to request a hearing to challenge your suspension.

The penalties for your first refusal begin with a fine from $500 to $1,000 and a suspension of your license for one year. For your second or any subsequent refusal within five years, you have to pay the same fine and your suspension will last for three years.

Should You Refuse to Take a Mandatory DUI Test in Oregon?

It usually does not help you to refuse to take a blood, breath, or urine test when you are arrested. For a first DUI in Oregon, you will go to jail for two days and pay a fine of $1,000. This is more severe than the penalty for refusal. Still, refusing the test does not guarantee that you won’t be convicted – you could be found guilty of a DUI even if your refusal means that the state does not have proof that your BAC was over .08%, the legal limit for those over 21. In fact, the prosecution can use your refusal against you by arguing that you refused the test because you knew that you were intoxicated and guilty of DUI.

You Have a Right to Have an Administrative Hearing to Determine the Validity of a Suspension for Refusing or Failing a Breath or Urine Test You must request a hearing within ten days of your arrest. It is possible that the police officer does not show and the suspension will be tossed out. If the officer does show up then he or she will have to testify under oath and be subject to cross examination by your attorney. That testimony may be used against the officer at trial if it is inconsistent with the trial testimony. This hearing is separate from any criminal proceeding so winning this hearing does not prevent the State from prosecuting you. However it is an invaluable tool to determining the strength of the State’s case.

Get Help With Your DUI

If you have been arrested on a DUI charge in Oregon or any other state, get help from an experienced DUI attorney. Unlike other traffic related charges, which might be worth fighting without a lawyer, conviction for a DUI has serious consequences – especially if the incident involved injury to people or property, or if it’s your second or subsequent DUI. To avoid or reduce the consequences, your best bet is to find an attorney who is knowledgeable about your state’s laws and about how the system works in your county’s court.