The Criminal Consequences of Refusing a Breathalyzer or Blood Draw for DUII in Oregon

The Dangers of Refusing Chemical Tests in Criminal Court

When an Oregon police officer pulls you over and asks you to blow into a breathalyzer, you face a terrifying dilemma. Many drivers believe that if they refuse the test, the police will not have enough evidence to convict them of a Driving Under the Influence of Intoxicants (DUII). This is a dangerous misconception. By driving on Oregon roads, you have already implicitly consented to a chemical test if you are lawfully arrested for DUII. Refusing the test does not just trigger a license suspension with the DMV; it severely complicates your defense in criminal court. The state has built-in penalties to punish drivers who refuse to cooperate. If you refused a breath or blood test, you need an aggressive defense strategy. You should immediately search our US Lawyer Directory to find an experienced Oregon criminal defense attorney who knows how to mitigate the damage of a refusal.

Step-by-Step Impact on Your Criminal Case

Whether you are facing a judge in the Washington County Circuit Court, Hillsboro or the Marion County Circuit Court, Salem, the prosecutor's strategy in a refusal case follows a predictable and aggressive pattern.

Consciousness of Guilt Arguments in Court

Historically, prosecutors frequently argued to juries that a driver's refusal to blow into a breathalyzer showed a 'consciousness of guilt.' However, Oregon law on refusal evidence has fundamentally shifted. In the landmark decision State v. Banks, 364 Or. 332 (OR Supreme Court 2019), the Oregon Supreme Court held that an officer's request to take a breath test constitutes a request for consent to search under Or. Const. art. I, § 9. Because citizens hold a protected constitutional right to refuse a warrantless search, the state is strictly prohibited from using a driver's invocation of that constitutional right as evidence of guilt in a criminal DUII trial. Unless the prosecution can demonstrate that an exception applied or the defendant opened the door, a skilled defense attorney can move to exclude any mention of the refusal before the jury.

Forced Blood Draws via Electronic Warrants

Refusing the breathalyzer no longer means the state gets no chemical evidence. If you say no, the officer can simply sit you in the patrol car and contact an on-call judge using an electronic warrant system (e-warrant). The officer will describe your watery eyes, slurred speech, and driving behavior. If the judge agrees there is probable cause, they will electronically sign a search warrant. The police will then strap you to a chair at the station or a local hospital and forcibly draw your blood. You will still face the criminal penalties of a refusal, but the state will now have your exact blood alcohol content (BAC) anyway.

Increased Fines for Refusal

Beyond potential evidentiary issues, refusing a chemical test triggers immediate financial penalties under Oregon law. Refusal is classified as a separate traffic offense under Or. Rev. Stat. § 813.095, carrying a standalone presumptive fine of $650 in addition to an administrative driver's license suspension through the DMV under Or. Rev. Stat. § 813.100. If you are subsequently convicted of the underlying DUII crime, you face a separate mandatory minimum fine of $1,000 for a first offense pursuant to Or. Rev. Stat. § 813.010(6)(a). These penalties compound, meaning a refusal significantly increases the total financial burden of a DUII stop.

Challenging the Legality of the Initial Traffic Stop

Because the state may rely on chemical results or observations to prove impairment, an effective defense strategy is often to challenge the initial traffic stop itself. If the police officer lacked reasonable suspicion to stop your vehicle or lacked probable cause for the arrest, the evidence obtained afterward can be thrown out. Your attorney will file a Motion to Suppress Evidence pursuant to Or. Rev. Stat. § 133.673 and Or. UTCR 4.060. If the judge grants this motion, the prosecutor is prohibited from introducing the unlawfully obtained evidence or any forced blood draw at trial, often leading to a reduction or dismissal of the DUII charges.

How Much Does it Cost in Oregon?

A DUII involving a refusal generally costs more to defend because it often requires pre-trial litigation and expert witnesses. Standard costs include:

• Fines and Citations: A refusal carries an independent $650 presumptive fine under Or. Rev. Stat. § 813.095, while a first DUII conviction requires a mandatory minimum fine of $1,000 under Or. Rev. Stat. § 813.010(6)(a).
• Attorney Fees: Because refusal cases are harder to negotiate and frequently go to a jury trial, defense attorneys typically charge flat fees ranging from $4,000 to $8,500.
• Expert Witnesses: If forced blood was drawn, your attorney may need to hire an independent toxicologist to challenge the state crime lab's methodology, which can cost an additional $1,500 to $3,500.

How Long Does the Process Take?

A standard DUII with a breathalyzer printout might be resolved through a plea deal in a few months. However, a case involving a refusal and a forced blood draw takes significantly longer. It can take 3 to 6 months just for the state crime lab to process the blood evidence. Litigating a Motion to Suppress requires scheduling special evidentiary hearings with the judge. Overall, a complex refusal DUII case in Oregon can easily take 9 to 18 months from the date of the arrest to a final jury verdict.

Frequently Asked Questions (FAQ)