Should I take a breath test after a DUII arrest?

David N Lesh

Attorney at Law

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State of Oregon

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Clackamas County

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This site is designed to provide emergency information to persons who have been arrested for DUII and asked to take a breath, blood, or urine test by the police.  It is assumed that the person under arrest has called a family member or friend seeking advice in the middle of the night and that person is now researching the issue on the internet. 

This website does not provide legal advice and is not a substitute for legal advice.  If possible, contact an experienced DUII attorney for advice on whether you should take a breath, blood, or urine test.  Unfortunately, few attorneys are available for a consultation during the late evening / early morning hours when most Oregon DUII arrests occur.

This website only deals with Oregon law.  It has no applicability to DUI arrests occurring outside of the State of Oregon.

The statements and opinions on this site are those of the site author.  Others, including other attorneys, may disagree.  The information and opinions herein are not warranted or guaranteed in any way.  Use the information on this site at your own risk.

Understand the Consequences of Your Decision.

Oregon's implied consent law means that by driving a motor vehicle you have implied that you will consent to a breath, blood or urine test if a law enforcement officer requests you to take such a test.  The police officer can request you to take a test if the officer has arrested you for DUII.  Refusal to take a test is usually admissible as evidence in court.  You will fail a test if your blood alcohol reading is 0.08 percent or more.  If you are under 21, you will fail the test if you have any amount of alcohol in your blood.  Remember, an implied consent suspension is separate from any suspension you may receive as a result of a DUII conviction.

In summary:

• if you take a test and pass it, there will be no suspension;

• if you take a breath / blood test and fail it, you face a suspension;

• if you refuse a breath / blood / urine test, you will face a much longer suspension. 

There is no suspension for a positive urine test.  Put another way, you do not "fail" a urine test even if you test positive for a controlled substance.  However, the positive test can be used against you in a subsequent criminal prosecution. 

As you can see, the suspension for refusing a test is always 3 to 4 times as long as for a test failure.  Refer to the table below:

I've been arrested for DUII and asked to take a breath / blood / urine test.  Should I take the test?

A)  Yes, if you are eligible for the diversion program on your DUII charge. 

You are probably eligible for diversion if you can meet all of the criteria listed below:  (1) you have not been arrested for a DUI or similar type charge in any state in the past 11 years; (2) you have not been arrested for a criminal drug offense in any state in the past 11 years; (3) you have not been convicted of a vehicular assault / homicide charge in any state in the past 11 years; (4) you do not have a CDL (commercial driver license); and (5) no one (other than yourself) was injured or killed in this DUII incident (this arrest).  Most first time DUII arrests are eligible for diversion.

Why?  Because whether you fail or refuse the breath test, you will still likely enter the diversion program.  Since failing the test will result in a 90 day license suspension and refusing will result in a one year suspension, you want the shortest suspension possible. 

B)  Yes, if you are absolutely certain that you've had little or no alcohol to drink so that your blood alcohol will register less than .08 percent.

Why?  Because if your blood alcohol content BAC comes back at .07 percent or less, you face no implied consent suspension (unless you are under 21 or driving a commercial motor vehicle at the time of your arrest).  If you refuse the test, you will lose your license for at least one year.

C)  No, if you have a prior DUII conviction in Oregon in the past five years.  Note:  A prior diversion is not a conviction unless you were terminated from diversion.

Why?  Because although if you refuse the test, you will face a three year suspension, should you get a second DUII conviction within five years, you will face a three year suspension anyway.  And, these suspensions will run almost entirely concurrently to each other.

D)  No, if you have two or more prior DUII convictions (in any state) and at least one of the convictions was within the past 10 years.  Note:  A prior diversion is not a conviction unless you were terminated from diversion.

Why?  Because if you are convicted of a third or greater DUII charge, your license will be revoked for life anyway.  Therefore, you are not concerned about receiving a suspension for refusing the breath test. 

But I want to take a blood test instead of a breath test.  Can't I demand a blood test?

If you refuse to take a breath test, your license will be suspended for at least one year even if you demand a blood test instead.  [The police do not request a blood test from you unless you were taken to the hospital following your injury in a DUII crash.]  You should absolutely request the opportunity for a blood test, but you have no "right" to have a blood test in lieu a breath (or urine) test.  Again, refusing a breath test because you want to take a blood test will result in a lengthy refusal suspension.

Once you have been released from custody, you should proceed immediately to a medical facility to obtain your own blood test.  You will have to arrange and pay for a blood test yourself.

When is a blood test requested by the police following a DUII arrest?

When you are taken to a hospital following a DUII crash, the police are authorized to ask you to take a blood test.  Refer to the table above for implied consent consequences and blood tests. 

When is a urine test requested by the police following a DUII charge?

When the police make a DUII arrest and you provide a breath test below .08 percent, the police may ask you to take a urine test if they believe that you are under the influence of a controlled substance or a combination of a controlled substance and alcohol. 

Since there is no suspension for "failing" a urine test, it is usually best to take a urine test if requested.  There is a lengthy suspension if you refuse a urine test and this suspension will be consecutive to any other implied consent suspension that you may face.