Start with Or. Rev. Stat. § 813.100. In Oregon, Refusal typically produces a one-year (or longer) DMV suspension under the implied-consent/administrative per se system, separate from the criminal DUII. Breath testing may be compelled consistent with Birchfield; blood draws for criminal refusal penalties generally require a warrant. That is the question this guide answers for refusing a breathalyzer. Oregon's implied-consent law requires breath, blood, or urine testing after a lawful DUII arrest; refusal has administrative consequences.
Implied consent in Oregon
Oregon's implied-consent law requires breath, blood, or urine testing after a lawful DUII arrest; refusal has administrative consequences.
Implied consent is not the same as a Miranda warning. Officers typically must advise of the consequences of refusal before requesting a chemical test. Failure to give a required advisory can affect whether the administrative suspension sticks — a frequent issue in Oregon appellate opinions.
License suspension and administrative hearings
Refusal typically produces a one-year (or longer) DMV suspension under the implied-consent/administrative per se system, separate from the criminal DUII.
The DMV / administrative track often runs separately from the criminal DUI case. Missing the short window to request an administrative hearing can lock in a suspension even if the criminal charge is later reduced or dismissed. Always calendar the administrative deadline the same day as the arrest.
How the Oregon rule applies
Apply the Oregon authorities in order. The facts are simplified so the statute and the standard are visible.
A driver is arrested for DUI in Oregon and refuses the evidentiary chemical test after the implied-consent advisory.
- Identify the administrative consequence under Or. Rev. Stat. § 813.100: Refusal typically produces a one-year (or longer) DMV suspension under the implied-consent/administrative per se system, separate from the criminal DUII.
- Separate that track from the criminal case: Breath testing may be compelled consistent with Birchfield; blood draws for criminal refusal penalties generally require a warrant.
- Ask whether the refusal can be argued to the jury: Intoxilyzer results and refusal evidence are central in DUII cases, with foundation and confrontation issues frequently litigated.
- If the request is for blood rather than breath, apply the warrant rule: Breath is the ordinary test; blood/urine are used for drugs or when breath is unavailable, typically under warrant when compelled.
In Oregon the refusal question is answered first by Or. Rev. Stat. § 813.100, then by the administrative deadline and the criminal case.
Criminal consequences of refusal
Breath testing may be compelled consistent with Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Under Birchfield v. North Dakota, the Fourth Amendment allows criminal penalties for refusing a warrantless breath test incident to a lawful DUI arrest, but generally requires a warrant (or a recognized exception) before the State may impose criminal penalties for refusing a blood draw. Missouri v. McNeely rejected a per-se exigency based solely on natural dissipation of alcohol in the blood. Oregon statutes and case law implement those federal baselines with local detail.
Can refusal be used as evidence?
Intoxilyzer results and refusal evidence are central in DUII cases, with foundation and confrontation issues frequently litigated.
Prosecutors often argue consciousness of guilt; defense counsel emphasize confusion, inadequate advisories, or medical inability to provide a sample. The precise jury instruction language is state-specific — search Oregon opinions for “refusal” and “implied consent.”
Breath tests versus blood tests
Breath is the ordinary test; blood/urine are used for drugs or when breath is unavailable, typically under warrant when compelled.
Practical tip: a driver who refuses breath may still face a warrant-backed blood draw. Refusal does not create a permanent shield against chemical evidence; it mainly adds administrative (and sometimes criminal) consequences on top of the underlying DUI case.
Practical tips
- Ask whether the stop and arrest were lawful — implied consent usually requires a lawful DUI arrest first.
- Diary the administrative hearing deadline immediately.
- Do not confuse portable roadside breath screens with the evidentiary breathalyzer at the station; statutes often treat them differently.
- Research Oregon opinions on implied consent, refusal, and license revocation in LawDiver before a contested DMV hearing.
Case law: implied consent and refusal in Oregon
STATE OF OREGON, Respondent on Review, v. RONALD ERVAN SPENCER, Petitioner on Review
…t petition for review followed. This case arises out of the implied consent law, which formerly was codified at ORS 487.805, et seq, and presently is codified at ORS 813.100, et seq. ORS 813.100 provides, in part: “(1) Any person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the impl…
Practitioners open STATE OF OREGON, Respondent on Review, v. RONALD ERVAN SPENCER, Petitioner on Review when Oregon implied consent / breathalyzer refusal turns on the distinction in this sentence: "This case arises out of the implied consent law, which formerly was codified at ORS 487.805, et seq, and presently is codified at ORS 813.100, et seq. ORS 813." Do not lift it out of the facts the court was deciding.
MOORE, Respondent on Review, v. MOTOR VEHICLES DIVISION, Petitioner on Review; In the Matter of the Refusal to
…iver’s license which the court held to be invalid under the Implied Consent Act, ORS 487.805 et seq. In each case, the licensee, upon being requested to submit to a breath test, asked or demanded to speak to an attorney. We allowed the state’s petition for review to attempt to clarify principles applicable to drivers’ license suspension proceedings. The Motor Vehicles Division…
Oregon opinions such as MOORE, Respondent on Review, v. MOTOR VEHICLES DIVISION, Petitioner on Review; In the Matter of the Refusal to are cited where implied consent / breathalyzer refusal is disputed. The court stated: "Implied Consent Act, ORS 487.805 et seq. In each case, the licensee, upon being requested to submit to a breath test, asked or demanded to speak to an attorney." That is the language to brief; the rest of the decision supplies the procedural posture.
STATE of Oregon, on Review v. Rodney BANKS, Sr., on Review. — Balmer, J., dissenting
…state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person's breath *** for the purpose of determining the alcoholic content of the person's blood if the person is arrested for driving a motor vehicle while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance. A test shall be administer…
On implied consent / breathalyzer refusal, STATE of Oregon, on Review v. Rodney BANKS, Sr., on Review. — Balmer, J., dissenting speaks to the Oregon dispute in this passage: "state shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person's breath *** for the purpose of determining the alcoholic content of the person's blood if the person is arrested for driving a motor vehicle while under the influenc" The surrounding opinion shows how the court applied that language to the record.
STATE of Oregon, on Review v. Andrew A. SWAN, on Review.
STATE of Oregon, on Review v. Andrew A. SWAN, on Review., 363 Or. 121 (2018)
…his cell phone, a landline, a phone book, and a copy of the Implied Consent Combined Report. He told defendant that "he could make as many calls as he'd like to whomever he'd like and that [the officer would] be closing the cell door to provide him privacy while he was on the phone." After explaining the procedure for the breath test, the officer closed the cell door at 3:47 a.…
On implied consent / breathalyzer refusal, STATE of Oregon, on Review v. Andrew A. SWAN, on Review. speaks to the Oregon dispute in this passage: "Implied Consent Combined Report. He told defendant that 'he could make as many calls as he'd like to whomever he'd like and that [the officer would] be closing the cell door to provide him privacy while he was on the phone." The surrounding opinion shows how the court applied that language to the record.
STATE OF OREGON, Respondent, v. ALCUIN ALVIN ANNEN (No. 74546), Appellant
STATE OF OREGON, Respondent, v. ALCUIN ALVIN ANNEN (No. 74546), Appellant, 12 Or. App. 203 (1973)
…ion to take a blood sample from him. Under the terms of the Implied Consent Law, ORS 483.634 et seq, as interpreted by State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969), the results of the test should not have been received in evidence. The night of September 14, 1971, defendant was driving a pickup truck north on US 99E. Near Gervais defendant's truck and an automobile collided…
Practitioners open STATE OF OREGON, Respondent, v. ALCUIN ALVIN ANNEN (No. 74546), Appellant when Oregon implied consent / breathalyzer refusal turns on the distinction in this sentence: "Under the terms of the Implied Consent Law, ORS 483.634 et seq, as interpreted by State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969), the results of the test should not have been received in evidence." Do not lift it out of the facts the court was deciding.
Key takeaways
- Primary authority: Or. Rev. Stat. § 813.100.
- Administrative hit: Refusal typically produces a one-year (or longer) DMV suspension under the implied-consent/administrative per se system, separate from the criminal DUII.
- Criminal exposure: Breath testing may be compelled consistent with Birchfield; blood draws for criminal refusal penalties generally require a warrant.
- Evidence: Intoxilyzer results and refusal evidence are central in DUII cases, with foundation and confrontation issues frequently litigated.
- Blood vs. breath: federal Supreme Court doctrine in Birchfield and McNeely still frames warrant rules.
Frequently asked questions
What happens if I refuse a breathalyzer in Oregon?
Refusal typically produces a one-year (or longer) DMV suspension under the implied-consent/administrative per se system, separate from the criminal DUII. Breath testing may be compelled consistent with Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Is refusal a separate crime in Oregon?
Breath testing may be compelled consistent with Birchfield; blood draws for criminal refusal penalties generally require a warrant.
Will the prosecutor tell the jury I refused?
Intoxilyzer results and refusal evidence are central in DUII cases, with foundation and confrontation issues frequently litigated.
Do I need a warrant for a blood draw?
Breath is the ordinary test; blood/urine are used for drugs or when breath is unavailable, typically under warrant when compelled. See also Birchfield and McNeely linked above.