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To what extent do you need to agree to participate in a sobriety test when driving in Oregon? What about when you are walking?

Corvallis, OR |

Under Oregon Driving Laws, by driving you need to follow the "Implied Consent Law", meaning you need to submit a alcohol test if asked by a police officer. But does that mean you automatically need to if they ask? Or is it only if they actually arrest you for a DUII that you need to submit one? If they don't actually arrest you, do you need to do their tests if they ask? Or can you just politely refuse, saying you need to consult an attorney first?

Also, it's illegal to be drunk in public, right? But you aren't driving, so the "Implied Consent Law" has no influence over you, correct? So how would a police officer test your blood alcohol level, or administer tests if you are walking? Are you still able to refuse? What if you are under 21? Can you still refuse to take an alcohol test?

Attorney Answers 4

Posted

Under 21 you have no right to drink.
You can refuse an alcohol test. If you do and they have evidence that you have been driving you can lose your license to drive.
In Wisconsin, for the implied consent to kick in you must have been arrested for OWI (DUI).

You do not have to take field sobriety tests. You do not have to blow into handheld breath machines at the roadside.

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--- Field sobriety "tests" – Madison (Dane County) Wisconsin DUI / DWI / OWI / Drunk Driving lawyer
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--- Ten Days to Save Your License - Administrative Suspension and Refusals in Madison (Dane County) Wisconsin
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Charles K. Kenyon Jr.

Charles K. Kenyon Jr.

Posted

Also, if you refuse to take a test and there is probable cause to believe you are DUI, in Wisconsin they can force a blood draw. I do not know Oregon law on this. The US Supreme Court currently has a Missouri case about this under review.

Asker

Posted

What constitutes "probable cause"? If you're driving too slow and swerving slightly, but you give reasonable explanations do they still have probable cause? And for the under 21, I meant what can police officers do when you are just a pedestrian? How can they prove you have been drinking? Obviously the Implied Consent Law no longer governs you, so if you don't smell like alcohol, how would a cop get probable cause to administer any sort of test? And do you still have a right to refuse?

Posted

Mr. Kenyon is on point. To add to his comment, Oregon officers are allowed to perform a blood draw without a warrant.

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Asker

Posted

Do they still need probable cause? Or can they just do it "willy-nilly" as they say

John E. Schlosser

John E. Schlosser

Posted

No, they can't do it "willy-nilly."

Asker

Posted

So then what constitutes probable cause? How much do they need to see/smell/hear to give them reasonable suspicion that will allow them to take perform a blood draw?

John E. Schlosser

John E. Schlosser

Posted

The answer to that is, it depends. Reasonable Suspicion and Probable Cause are legal determinations based on the facts. You will need to speak with an attorney and have him/her analyze the facts to determine if the cops are in violation of search and seizure laws.

Posted

Whether you must take the tests and whether you should take the tests are very different questions. You seem to have a handle on the Implied Consent Law, that's a DMV thing that could cost you your license.

It is not illegal to refuse to take field sobriety tests or refuse to answer questions - we have a constitutional right not to answer questions. The police can draw someone's blood with or without a warrant so, there's that to think about. You should probably as for lawyer at the same time to invoke your right to silence: " My lawyer told me not to answer any questions or take those tests."

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Asker

Posted

So if you refuse to take some sort of sobriety test, a cop can just circumvent your decision by drawing your blood? And can they do that even if you say you'd prefer to speak with your attorney before agreeing to anything? Also, is the Implied Consent Law in Oregon only in effect if the officer actually arrests you? And doesn't that mean if you don't agree to the tests but don't smell like alcohol and there is no definitive proof you've been drinking recently, the cop can just arrest you that way they can force you to take the tests?

Posted

If you are walking and the police request a sobriety test, that is a search and either they have a warrant or some exception to the warrant requirement. Your consent is one of those exceptions. The extent to which you need to agree depends upon all the circumstances, e.g., are you under arrest? Whenever the police seek information, you should carefully consider the circumstances and ask if you are under arrest before answering any questions.

This answer if for general information only.

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