A Breath Test Is Not the Last Word

There are a variety of methods to determine the amount of alcohol present in your system. These include breath, urine, and blood tests.

A breath test is a common method used by police to measure your blood alcohol content (BAC). The police usually do this by getting a sample of your breath. As you blow into a hose, a machine measures your breath and then calculates an estimate of your actual, blood-alcohol level. In Oregon, as in most of the United States, the BAC "limit" is .08 percent.

There are a variety of devices that can be used to measure the alcohol in your breath. Throughout Oregon, police use only the Intoxylizer 8000. This device analyzes your breath to give an estimate of BAC. It does this by measuring the amount of infrared light alcohol absorbs when a person is exhaling into a hose that is connected to this device. The principle is, simply, the more light absorbed, the higher the BAC.

Implied Consent

If a police officer suspects you of driving under the influence, you can be asked to submit to a breath test to determine the level of alcohol in your system. This is when it is important to be aware of Oregon's implied consent law. This law states that by driving a vehicle in Oregon you have given your implied consent to submit to a breath, blood, or urine test if requested to do so by a police officer.

While you do have a right to refuse to submit any or all of these tests , there can potentially be significant consequences if you choose to do so. By refusing to submit to a breath test evidence of your refusal to take the test can be used against you by the prosecution in your case. In addition, if you fail a breath test that failure can be also be used as evidence against you in a court of law. The arresting officer must inform you of the rights and consequences of deciding to take or refuse the test. You also have the right to call an attorney prior to making a decision on whether or not to take the breath test.

Administrative Penalties

Moreover, there are administrative penalties issued by the Oregon DMV for refusal to take a breath test or failure of a breath test, that are separate and apart from any criminal penalties you may receive. It is important to note that the consequences are more severe for refusal to take the test than if you fail the breath test. Initially, upon failure or refusal of a test, the arresting officer will confiscate your license and issue you a temporary permit which is good for 30 days. (Provided you have a valid Oregon driver's license.) At the time of arrest the officer will provide you with written notice on the DMV's intent to suspend your license. You have ten days from the date of arrest to request a hearing on the suspension. Otherwise, at the end of the 30 days your license will be suspended.

Suspension length depends on whether or not your failed the breath test or refused to take the breath test. For failure of the breath test, your license will be suspended for 90 days for a first offense. Thereafter, your license will be suspended for one year. If you refused the breath test, your license will be suspended for one year for a first offense and for three years for any subsequent offense.

In addition, if you refuse to take the breath test, you cannot request a hardship permit (a license which gives you limited driving privileges) for at least 90 days and, possibly for 3 years if it is not your first offense.

Finally, if you refuse to take a breath test you may be subject to fine. The fine ranges from $500 to $1000.

Breath Test Failure

Even if you decide to take the breath test and fail it, it is important to be aware that the resulting percentage may not be an accurate representation of your level of intoxication. There are a number of things that can affect the outcome of your breath test.

For example, the device may have not been properly calibrated. Or, the police officer did not follow proper procedures to collect the breath sample. In Oregon the officer must first make sure "the subject has not taken anything by mouth (drinking, smoking, eating, taking medication, etc.), vomited, or regurgitated liquid from the stomach into mouth, for at least fifteen minutes before taking the test." The breath test device does not distinguish what type of alcohol is one your breath so other things can give the device a false positive. This is known as residual mouth alcohol. Things likemouthwash, cough syrup, breath sprays, and cold medicine can give a false positive reading. Burping can give an inaccurate result Certain medical conditions can affect your breath test results. For example, if you have diabetes this can potentially affect the outcome of the breath test as the testing device can mistake acetone for alcohol. Or if you have gastroesophageal reflux disease (GERD) the sample can be contaminated by gas from the stomach.

Alcohol can become trapped in dentures and cavities producing a false result Your test results can also be affected by low-carb diets.

The bottom line is, just because your breath test results stated you were over the legal limit this does not mean you were driving while intoxicated.