Yes, you can refuse a field sobriety test in Oregon, but refusal is not consequence-free. Under ORS 813.135, everyone who drives on Oregon roads is treated as having given implied consent to these roadside tests, and refusing to physically cooperate with certain parts of them can be used against you in court. What refusal does not do is trigger an automatic license suspension. That penalty is reserved for refusing a chemical test after arrest, which is a separate decision governed by a separate statute.
What Counts as a Field Sobriety Test
Field sobriety tests are the physical and mental exercises an officer uses at the roadside to gauge impairment. The three standardized tests developed by the National Highway Traffic Safety Administration are the Horizontal Gaze Nystagmus (following an object with your eyes while the officer watches for involuntary jerking), the Walk-and-Turn, and the One-Leg Stand.1National Highway Traffic Safety Administration. SFST Participant Manual
Oregon also approves several additional tests through the Department of State Police: the Modified Finger to Nose Test, Finger Count, Alphabet, Counting, Internal Clock, and Romberg Balance Test.2Legal Information Institute. Oregon Administrative Code 257-025-0012 – Approved Field Sobriety Tests Officers use the results to build probable cause for a DUII arrest. Scoring is subjective and rests on the officer’s interpretation of how you performed, which is a large part of why the decision to participate matters.
How Refusal Actually Works Under ORS 813.135
Oregon’s implied consent statute for field sobriety tests creates a two-step process that most drivers do not know about. Under ORS 813.135, any person who drives on Oregon roads is considered to have consented to field sobriety tests when an officer reasonably suspects DUII.3Oregon Public Law. ORS 813.135 – Implied Consent to Field Sobriety Tests “Implied consent” does not mean you lose all say in the matter.
First, the officer asks you to consent to field sobriety tests. If you refuse that initial request, the officer narrows the ask: you are then requested to physically cooperate with the nontestimonial tests only. Nontestimonial tests are the ones where your body simply does something physical, like following an object with your eyes during the HGN test. They do not require you to communicate or make cognitive decisions the way reciting the alphabet or counting does. Before your refusal can be used against you, the officer must inform you of the consequences of refusing to physically cooperate under ORS 813.136.3Oregon Public Law. ORS 813.135 – Implied Consent to Field Sobriety Tests
The practical upshot: you can decline the testimonial portions without that refusal being admissible. Refusing to physically cooperate with the nontestimonial portions after being warned is a different matter.
What Refusing Actually Costs You
If you refuse to physically cooperate with nontestimonial field sobriety tests after being warned, evidence of that refusal is admissible in any criminal or civil proceeding arising from allegations that you were driving under the influence. A prosecutor can argue the refusal reflects a consciousness of guilt: you believed you would fail and chose not to provide the evidence. Juries do not always accept that inference, but it is legally permitted. The officer must note in a report which specific tests were requested for the refusal to be admissible.4Oregon Public Law. ORS 813.136 – Consequence of Refusal or Failure to Submit to Field Sobriety Tests
What refusal does not do:
- It does not trigger an automatic license suspension.
- It does not carry any separate criminal penalty.
- It does not shield you from arrest. An officer can still establish probable cause based on erratic driving, the smell of alcohol, slurred speech, bloodshot eyes, or difficulty producing your license and registration. Many DUII arrests proceed on those observations alone.
Chemical Tests Are a Different Question Entirely
The decision you make at the roadside about field sobriety tests is not the same decision you may face after arrest about a breath, blood, or urine test. Confusing the two is where drivers get into real trouble.
Under ORS 813.100, anyone driving on Oregon roads is deemed to have consented to a chemical test of their breath or blood if lawfully arrested for DUII.5Oregon Public Law. ORS 813.100 – Implied Consent to Breath or Blood Test Refusing after a lawful arrest triggers an automatic suspension of your driving privileges under ORS 813.410, independent of whether you are ever convicted.6Oregon Public Law. ORS 813.410 – Suspension Upon Receipt of Police Report on Implied Consent Test For a first refusal, you cannot obtain even a hardship permit for 90 days after the suspension begins. With aggravating factors, that hardship-permit lockout stretches to three years.7Oregon Public Law. ORS 813.520 – Limitations on Authority to Issue Hardship Permit or Reinstate Driving Privileges A failed breath test on a first offense carries a shorter 30-day hardship restriction, so Oregon treats refusal more severely than a failed test.
The officer will confiscate your Oregon license or permit at the time of refusal and issue a temporary permit valid until the 30th day after arrest, when the suspension takes effect.8Oregon Public Law. ORS 813.110 – Temporary Permit Upon Confiscation of License Refusal of a chemical test is also independently admissible in any DUII proceeding.9Oregon Public Law. ORS 813.310 – Refusal to Take Chemical Test Admissible as Evidence
You have the right to challenge the suspension at an administrative hearing, but the written request must reach DMV Headquarters by 11:59 PM on the tenth day after your arrest.10Oregon Driver & Motor Vehicle Services. Implied Consent Hearing Miss that deadline and the suspension takes effect automatically on day 30. This is one of the shortest deadlines in Oregon DUII law and it catches people off guard constantly.
Refusing a chemical test does not guarantee that officers will never obtain a sample. Law enforcement can seek a search warrant from a judge authorizing a blood draw by showing probable cause that you were driving under the influence and that a blood sample would contain evidence of the crime. Some jurisdictions process these warrants quickly by phone or electronically.
Your Right to an Attorney Before a Chemical Test
ORS 813.130 lays out what an officer must tell you before requesting a chemical test: the BAC thresholds that constitute failure, the fact that your license will be suspended if you fail, your right to a hearing, and your right to request an independent chemical test at your own expense afterward.11Oregon Public Law. ORS 813.130 – Rights of and Consequences for Person Asked to Take Test The statute does not explicitly mention a right to consult an attorney.
That right comes from the Oregon Constitution. In State v. Spencer (1988), the Oregon Supreme Court held that a person taken into formal custody on a potentially criminal charge is involved in a “criminal prosecution” under Article I, section 11, and therefore an arrested driver has the right to a reasonable opportunity to obtain legal advice before deciding whether to submit to a breath test.12Oregon Public Law. ORS 813.130 – Rights of and Consequences for Person Asked to Take Test – Section: Notes of Decisions The word doing the work is “reasonable.” Officers do not have to wait indefinitely for your attorney to answer the phone, but they cannot rush you into a decision without giving you a fair chance to seek counsel.
This right applies after arrest and to chemical testing. It does not apply to roadside field sobriety tests, which happen before arrest, when you are typically not yet in custody for purposes of this protection.
What to Do If You Are Stopped
Stay calm and polite regardless of what you decide. If you choose to decline field sobriety tests, state your decision clearly and without elaboration. Avoid offering explanations like “I only had two drinks” or “I’m just tired.” Those statements become evidence. The less you say beyond identifying yourself and communicating your decision, the fewer tools you hand the prosecution.
Know which test is being asked for at each stage. Roadside physical exercises are field sobriety tests under ORS 813.135; refusing physical cooperation with the nontestimonial ones is admissible but carries no license penalty. A breath, blood, or urine test requested after arrest is a chemical test under ORS 813.100, and refusing triggers an automatic license suspension. If you are unsure which is being requested, ask the officer to clarify. If you have been arrested, you have a constitutional right to a reasonable opportunity to contact an attorney before deciding on the chemical test.
If a chemical test refusal happens, the 10-day deadline for requesting an implied consent hearing is the single most time-sensitive issue you will face. Put it on a calendar the same day. Missing it forfeits your right to challenge the suspension entirely, no matter how strong your case might have been.