One of the most common questions asked by drivers arrested for DUI in Oregon is, “Should I take the breathalyzer test?” or “”Should I take the breath test?” The answer to this question is– like many questions surrounding DUI charges– complicated.
The term “breathalyzer” is a generic term for one of the original brands of breath testing devices used for estimating blood-alcohol levels. The name “breathalyzer” is still used today much in the same way people used to say, “I’ll Xerox a copy for you.” Because Xerox was the first company to produce a plain paper photocopier, the word “Xerox” became a verb and became synonymous with the term “photocopying” or “copying” even when done on a machine other than Xerox). In any event, Oregon uses a specific brand and model of breath testing device called the Intoxilyzer 8000, but many people still refer to it as the “breathalyzer.”
Can I talk to an attorney or lawyer before deciding whether or not to take the breath test?
You have a reasonable opportunity to attempt to contact a person of your choosing– including an attorney or lawyer– before providing or refusing a breath sample for the breath test, however, you are not guaranteed the right to speak with an attorney, or to have an attorney present while you take the breath test or refuse the breath test.
Do I have a right to refuse the breath test?
Theoretically, yes. The government cannot force you to physically exhale so that they can capture your breath, but if you refuse the breath test, there are criminal, administrative, and financial penalties they can impose on you. See below for more details.
Can I demand a blood test instead?
Generally, no. If you are in a hospital for medical treatment following an alleged DUI incident, a blood test may be available without first taking a breath test. You also have the right to have a blood test done on your own following a DUI arrest, but you first must either provide a breath test sample or refuse.
Can I demand a urine test instead?
Generally, no. You have the right to have a urine test done on your own following a DUI arrest, but you first must either provide a breath test sample or refuse. If the breath test result is under a .08, you will be asked to provide a urine sample. If you refuse the urine sample, there will be criminal, administrative, and financial penalties they can impose on you. See below for more details.
What happens if I take the breath test and blow over the legal limit (.08)?
This is the most common scenario after an arrest for DUI, and a request for a breath test. Statically speaking, most breath test readings in Oregon are between .11 and .16. a breath test. If you blow over the legal limit, there is typically an administrative Implied Consent driver’s license suspension. If a criminal charge is filed and a conviction is entered, there will be a second driver’s license suspension for DUI. For more information on the so-called “legal limit,” please see our page, “What is the legal alcohol limit in Oregon?”
What happens if I take the breath test and blow under the legal limit (.08)?
In most situation, there will be no administrative driver’s license suspension for a DUI arrest that results in a blow .07 or under. However, there could still be a criminal charge filed for DUI. If that DUI criminal case results in a conviction, there could still be a driver’s license suspension. For more information on the so-called “legal limit,” please see our page, “What is the legal alcohol limit in Oregon?”
What happens if I refuse the breath test in Oregon?
Most likely, your driver’s license will be suspended for either one or three years (depending on whether you have a prior DUI arrest), and the delay to get a hardship or work permit for driving will be delayed further than if you took the breath test and failed (i.e. blew over .08). You will likely also be charged with a violation of “Refusing A Breath Test” (which carries a $650.00 fine). Lastly, in your criminal case, the prosecutor may be able to present evidence of your refusal of the breath test, and suggest to the judge or jury that the refusal was evidence of guilt (i.e. that you knew you were intoxicated, and didn’t want to provide evidence of that fact).
Should I take the breathalyzer test?
We end with the question we started with. If you are reading this page, you likely fall into one of three categories:
- You’re doing research out of curiosity, or for the possibility of a DUI arrest at some point in the future
- You were recently arrested for DUI, and you want to know if you made the right decision
- You are sitting in a jail cell, Intoxilyzer 8000 room, or police station right now, and you’re wondering what to do
If you’re doing research out of curiosity, or for the possibility of a DUI arrest at some point in the future, you should ask your attorney this question. The reason is that the penalties and broad implications for a breath test failure of a breath test refusal vary depending on your criminal history, physical and medical conditions, and other individual circumstances.
If you were recently arrested for DUI, and you want to know if you made the right decision, stop analyzing it. Speak with your attorney about what to do with the facts as they are now. Any anxiety, concern, frustration, or depression brought about by second-guessing or wishing you could go back in time to do something different is unproductive and perhaps even harmful.
If you are sitting in a jail cell, Intoxilyzer 8000 room, or police station right now, and you’re wondering what to do, call an attorney on the phone. Demand that the officials detaining you give you a phone, phone book, and privacy. Many attorneys have the ability to take calls 24/7. In order to make an informed choice as to whether to submit to the breath test or refuse, your attorney is going to need to know more about your circumstances, your criminal history, body type, height, weight, time of drinking, time of driving, amount of alcohol consumed, whether or not you had food, whether or not you’ve taken any other medications, drugs, or controlled substances, whether or not you did the Field Sobriety Tests, and whether or not the police agency will likely get a warrant and blood draw if your refuse.