Call a lawyer!
First off, if you have been arrested for DUI you have the right to call a lawyer or anyone you would like to discuss whether or not you should take a breath test. If at all possible you should try to consult a lawyer prior to consenting to a breath test.
What are the penalties if I do or do not consent to the breath test?
The answer to that question depends. Under Oregon’s implied consent law, everyone who drives in Oregon has impliedly consented to submit to a breath test if they are under arrest and the officer has probable cause to believe that they have been driving under the influence of intoxicants.
Under Oregon’s criminal code, anyone who is convicted of DUI will have their license suspended for a period ranging from 1 year (first offense) to a lifetime revocation (third offense in lifetime). Under the implied consent law, if you take and fail a breath test, your license can be suspended for a period of 90 days to 1 year depending on your prior criminal history. If you refuse, your license can be suspended for 1-3 years depending on your history.
What if it is my first time, should I submit to the breath test?
YES. If you are under arrest for DUI and you have never been arrested for DUI before it is generally a good idea to consent to the breath test. If you don’t, your license will be suspended for one year and you would not be eligible for a hardship permit for 90 days. If you take and fail the test, your license can be suspended for 90 days but you would be eligible for a hardship permit within 30 days. If you do consent, however, you are of course giving the state valuable information that can be used against you in trial.
Should I take the breath test if it is my second DUI?
YES. If you have been convicted of a DUI or had a DUI that went through Oregon’s diversion program within the previous 15 years, you should take the breath test if you want to minimize the length of the driver’s license suspension. Again, you are giving the state evidence to use against you in their case but you are also minimizing the impact that the DUI charge will have on your driving privileges.
If it has been more than five years since your first DUI, your license can be suspended for 90 days. If you have had your license suspended under Oregon’s Implied Consent law within the previous five years, and you take and fail a breath test your license can be suspended for 1 year and you will not be eligible for hardship for the entire period of the suspension. If you refuse your license can be suspended for 3 years and you will not be eligible for a hardship permit for the entire 3 years.
Should I take the breath test if I have two prior DUI convictions?
No. Why shouldn’t you take the test? Because, if you have two prior DUI convictions, and you are convicted of a third DUI, your license will be revoked for life if you are convicted, so whether or not your license is suspended under the implied consent law doesn’t really matter.
Note: A DUI that goes through diversion successfully does not count as a conviction. If you have one prior DUI that went through diversion, and one that you were convicted of, you should still consent to the breath test if you are concerned about minimizing the length of the license suspension.
