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I refused a breath test, but did not fully understand the implied consent law. Should I have a DMV hearing?

Eugene, OR |

The police pulled over my friend who was driving behind me. Seeing the event I pulled over too. A police officer approached my car and did the normal routine. Not knowing what to do I took the field tests and failed. My friend was pulled over for reckless driving and driving too close. I was only pulled over for driving too close (to the car in front of me).

In the processing room the arresting officer read the implied consent form, and I did my best to try to pay attention, but I failed to grasp exactly what it was about. After he finished reading he asked my friend and I if we would take it. Not really knowing what to do and not really understanding we refused. I did not understand the consequnces of refusing at the time when I refused

Should I request a DMV hearing.

Some one also told me that as long as I do the Diversion, my suspension will only be for 90 days, regardless of my refusal to take the breath test. Is this true?

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Attorney answers 4


Yes, You should request a hearing. You should also hire a skilled DUI attorney to attend the hearing and represent you. He will know exactly what technical issues to look for to try to keep your license from being suspended.

Disclaimer: the legal information presented at this site should not be construed to be formal legal advice, nor the formation of a lawyer or attorney client relationship.


Refusing a breath test comes with a 1 year suspension, you should definitely hire an attorney to help you with the DMV hearing. Remember you have 10 days from the date of arrest to request one. So to answer your question "YES" you should request a hearing, and it is a good idea to hire an attorney for this situation.


It likely is to your benefit to request a hearing. The consequence of not having a hearing and losing a hearing are identical. There also are other advantages to having a hearing that would be worth exploring with an attorney. It is very important for you to know that your time to request a hearing is very limited. In fact, you have only 10 days from the date of arrest to request a hearing. This deadline is not flexible, so your time for a decision is limited. You should seek legal advice soon.


Absolutely. Just bear in mind that the main reason you should request a hearing is not to avoid suspension, but rather to get a preview of what the arresting officer would testify to if your matter were to proceed to trial. A DMV hearing is a formal proceeding that requires the officer to give sworn testimony. That means that anything he says at that hearing can be used against him in trial, should he later contradict himself. A skilled DUII attorney can make good use of the results of a contested DMV hearing, even if your license is suspended. I do not recommend that you try to conduct the suspension hearing yourself.

To answer your question regarding suspensions - your friend is wrong. In a DUII case your license is suspended twice, once for the breath test result (or failure), and again for conviction. In Diversion cases, the test suspension issues but the conviction suspension does not. In your case, your license is subject to suspension based on your refusal to provide a sample, regardless of whether you enter Diversion.

That said, whether you should enter Diversion is a decision that you should consider carefully. I recommend that you consult with a DUII attorney as soon as possible.

This post is offered as general information and is not intended as legal advice. This information does not in of itself create any attorney-client relationship.