Can you refuse Field Sobriety Tests?

Field Sobriety Tests in Oregon are considered a search, and you can decline or refuse a search in Oregon. However, your refusal may be used against you in some circumstances.

Should I refuse a Field Sobriety Tests?

In most cases, yes. This is a complex area of DUI and search and seizure law, but in most cases, a police officer requesting Field Sobriety Tests has already made their mind up. You’re going to be arrested for DUI, and therefore they are only gathering more incriminating evidence of the crime of DUI with the FSTs. The FSTs are very difficult tests to perform without error, and anything you do incorrectly or poorly will be used against you to suggest you were drunk.

Can you refuse a breathalyzer test? Do I have a right to refuse a breathalyzer test?

Yes.

Should I take the breathalyzer test?

This is a complex area of DUI criminal and administrative law. If at all possible, you should speak with an attorney before refusing a breath test after a DUI arrest. However, if an attorney is not available, the most conservative thing to do is to take the breath test. If you have never had a DUI before, if you do not have a Commercial Driver’s License, and if you are otherwise eligible for Oregon’s DUI Diversion Program, the criminal charge of DUI will ultimately be eligible for dismissal. Therefore, the BAC reading of your breath test is not terribly important for a first DUI.

However, if you have a prior DUI, a CDL, or are otherwise ineligible for diversion, you may want to decline the breath test, limit the government’s evidence against you, and preserve any rights you have to challenge the government’s case against you.

What happens if you refuse a breathalyzer? What is the penalty for refusing a breathalyzer test?

The administrative suspension of your driving privileges is longer. You could also receive a ticket for Refusal of a Breath Test. There could be a $650 fine imposed. Also, the fact that you refused the breath test could be brought up in your trial. In addition, the police officer may apply for a warrant to have blood drawn from you with a needle.

If you refuse to take a breathalyzer test, how long is your license suspended?

It depends on your driving history and– specifically– whether or not you have any prior DUIs. Most often, a refusal of the breath test could result in a one-year driver’s license suspension, or a three-year driver’s license suspension. You’ll also face a longer wait for a hardship permit if you refuse the breath test.

Overall, should I refuse DUI tests?

First of all, DUI cases in Oregon are very fact-dependent. In addition, DUI law is some of the most voluminous and complex of all of the areas of criminal defense law in the state. That being said, as a general rule, here are some guidelines for what to do if you’re accused of DUI in Oregon:

Provide your license, registration, and proof of insurance.
Verbally invoke your right to remain silent. This may sound counter-intuitive, but you need to say outloud that you’re going to remain silent, and won’t answer any questions.
Do not answer any questions about where you were coming from, where you are going to, or whether you had anything to drink
Do not consent to a search of your car, person, or any purses or backpacks.
Decline to perform Field Sobriety Tests, and do not provide any explanation or excuses. You have the right to refuse.
If asked to perform a breath test, call an attorney. Ask for visual and auditory privacy, your cell phone, and 20 minutes to attempt to confer with an attorney.
If you cannot reach an attorney, see if you can get answers to your legal questions online.
If you can’t reach an attorney…
- …and if you have no priors– take the breath test.
- …and if you do have priors– you may want to decline the breath test.
Remain calm, respectful, and do not physically resist or threaten the arresting officer.