Have you ever watched a baseball game? You might’ve heard the announcers say something like, “...without the express written consent of Major League Baseball...” Of course, nobody really listens that closely, but there’s an important phrase in there “express written consent.”
What does it mean and why am I talking about it? Because “express written consent” is just what it sounds like-- consent that must be expressly given (through writing, in this case). You might be wondering, “are there other types of consent?”
The answer is yes and it’s a very important distinction to make. The opposite of consent that is expressed is consent that is implied. Implied consent is given not verbally or through writing but through actions or behaviors. In other words, consent that is implied.
Why Are We Talking About Implied Consent?
In Oregon, implied consent is most often used when discussing our state’s DUII laws. In ORS 813.100, the law states,
“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… to a chemical test of the person’s breath, or of the person’s blood”
In other words, simply by driving, you’ve given your implied consent to a blood or breath test if you’re arrested for DUII.
What Happens if You Refuse a Blood or Breath Test?
Let’s back up a little. A police officer can’t just ask you to perform a breath test or a blood test without reasonable suspicion. Reasonable suspicion has both subjective and objective components.
As a driver, an officer needs an objective reason to pull you over. Examples include:
Broken tail lights
Failure to stop at a stop sign or red light
Weaving in and out of your lane
On the other hand, subjective components of a stop are based on how an officer feels or perceives your behavior and actions.
Once you are pulled over the officer is now allowed to continue his investigation. If he finds additional open and obvious evidence-- an open container, alcohol on your breath, etc., then the focus of the stop can become a DUII investigation.
At this point, you may be asked to take a blood or breath test. At this point, if you refuse, the DMV will suspend your driver’s license. This isn’t a criminal suspension and is completely independent of any DUII arrest and prosecution.
If you refuse a blood or breath test, you’ll receive a:
1-year suspension or…
3-year suspension if:
You have a DUII conviction in preceding 5 years
You refused another breath/blood test in the past 5 years
Why Do Implied Consent Laws Exist?
The reason for implied consent laws is simple: They are designed to encourage you to take the breath test. The consequences of refusing are high enough that you may as well blow into the Breathalyzer.
If I Take a Breath Test and Am Under the Legal Limit Am I Off The Hook?
Let’s say you blow a .06-- below the legal limit of .08 for a person over 21. You can still face criminal DUII charges. Why? Because in Oregon, the DUII laws focus around noticeable impairment, not only your blood alcohol content (BAC).
Why? Because you can be noticeably impaired due to marijuana, Ambien, and other substances, not just alcohol. All present a danger to yourself and others and are examples of DUII under Oregon law.
What If I Wasn’t Drunk?
If you know you aren’t drunk (you’re a teetotaller, you don’t drink for medical reasons, etc.) consent to the breath test. However, don’t consent to a field sobriety test. You can be stone-sober and still fail those subjective tests.
What About Bicycles?
Implied consent laws apply whether you’re driving a car or riding your bicycle! Under Oregon law, bicycles are considered “motor vehicles” for the purpose of implied consent and DUII laws. This is just one of the many misconceptions about DUII many people still believe.
What is a Hardship License?
A hardship license is one that allows you to:
Drive to and from work-- as well as for your work
Drive to find work
Drive to take part in a rehab program
Receive ongoing medical care
When it comes to implied consent, if it’s your first suspension, you can qualify for a hardship license right away. In the past, this meant that the advice was often “don’t blow.” The process of getting a warrant to compel a blood test was more involved and many officers just didn’t want to bother. If you refused a breath test, they wouldn’t call your bluff.
Today, however, the warrant process is much more straightforward and takes about 10 minutes. Officers today will get that warrant and have your blood drawn if you refuse a breath test. Count on it.
Can I Challenge An Implied Consent Suspension?
Yes! If your driver’s license is suspended because you refused a breath or blood test, you have 10 days to challenge it. You can request a hearing with the DMV, presided over by an Administrative Law Judge. There you can plead your case and try to prove that:
The traffic stop was unlawful
The officer didn’t have reasonable suspicion to compel a blood or breath test
Anything else that might have your suspension overturned
Next month, we’ll take more about how to challenge a suspension stemming from refusal of a blood or breath test.
Do You Need Help With A DUII Arrest or Implied Consent Suspension?
Contact me, Adam Greenman. I’m an experienced Portland DUII attorney and I can help you with your case. Or call my office at (503) 227-3800 to request your free, confidential consultation.