You can refuse a field sobriety test in Oregon, but refusal is not free of consequences. Under ORS 813.135, every driver on Oregon roads has already given implied consent to these roadside tests, and if you decline to physically cooperate with certain of them after being warned, the prosecutor can use that refusal as evidence against you. What refusal does not do is trigger an automatic license suspension. That penalty is reserved for refusing a chemical test (breath, blood, or urine) after arrest, which is a separate decision under a separate statute. Mixing the two up is the single most common mistake drivers make.
What a Field Sobriety Test Actually Is
Field sobriety tests are the physical and mental exercises an officer uses at the roadside to decide whether you are impaired. The three standardized tests from the National Highway Traffic Safety Administration are the Horizontal Gaze Nystagmus, where the officer watches your eyes track an object; the Walk-and-Turn; and the One-Leg Stand.1National Highway Traffic Safety Administration. SFST Participant Manual Oregon also approves additional tests through the Department of State Police, including the Modified Finger to Nose, Finger Count, Alphabet, Counting, Internal Clock, and Romberg Balance Test.2Legal Information Institute. Oregon Administrative Code 257-025-0012 – Approved Field Sobriety Tests
Scoring is subjective. The officer decides whether you performed well enough, and that interpretation feeds directly into probable cause for a DUII arrest. That subjectivity is a big part of why the question of whether to participate matters at all.
How Refusal Works Under Oregon’s Implied Consent Statute
ORS 813.135 treats every Oregon driver as having consented to field sobriety tests whenever an officer reasonably suspects DUII.3Oregon Public Law. ORS 813.135 – Implied Consent to Field Sobriety Tests Implied consent does not mean you have no choice. The statute lays out a two-step process that most explanations skip over.
The officer first asks you to consent to field sobriety tests. If you refuse, the officer narrows the request to physical cooperation with 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. Testimonial tests, by contrast, require you to communicate or make cognitive decisions, such as reciting the alphabet or counting. Before refusal to cooperate with the nontestimonial tests can be held against you, the officer has to tell you there are consequences for that refusal under ORS 813.136.3Oregon Public Law. ORS 813.135 – Implied Consent to Field Sobriety Tests
That split comes from the 1995 Oregon Supreme Court decision in State v. Fish, which held that forcing a person to choose between incriminating themselves by performing FSTs and incriminating themselves by refusing violated the state constitutional protection against compelled self-incrimination.4Oregon Public Law. ORS 813.136 – Consequence of Refusal or Failure to Submit to Field Sobriety Tests The legislature responded by drawing the testimonial/nontestimonial line. You can decline the testimonial tests, and that refusal is not admissible. Declining to physically cooperate with the nontestimonial ones works differently.
What Happens If You Refuse
If you refuse to physically cooperate with nontestimonial field sobriety tests after the officer has warned you of the consequences, evidence of that refusal is admissible in any criminal or civil proceeding tied to allegations that you were driving under the influence.4Oregon Public Law. ORS 813.136 – Consequence of Refusal or Failure to Submit to Field Sobriety Tests A prosecutor can argue that your refusal shows consciousness of guilt, meaning you believed you would fail and chose not to supply the evidence. Juries do not always accept that argument, but it is legally permitted.
There is no automatic license suspension for refusing field sobriety tests, and no separate criminal penalty. Admissibility of the refusal is the direct legal consequence.
Refusal also does not prevent an arrest. An officer can still establish probable cause from other observations: erratic driving, the smell of alcohol, slurred speech, bloodshot eyes, fumbling with your license and registration. Plenty of DUII arrests proceed on those observations alone. For a refusal to come in as evidence later, the officer has to document in a report which specific tests were requested.4Oregon Public Law. ORS 813.136 – Consequence of Refusal or Failure to Submit to Field Sobriety Tests
Chemical Tests Are a Separate Decision With Separate Consequences
Do not confuse the roadside physical exercises with the chemical test an officer requests after arrest. Under ORS 813.100, any driver on Oregon roads is deemed to have consented to a breath or blood test after a lawful DUII arrest.5Oregon Public Law. ORS 813.100 – Implied Consent to Breath or Blood Test Refusing that chemical test triggers an automatic suspension of your driving privileges under ORS 813.410, whether or not you are ever convicted of DUII.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. If aggravating factors apply, that lockout extends to three years.7Oregon Public Law. ORS 813.520 – Limitations on Authority to Issue Hardship Permit or Reinstate Driving Privileges Failing a breath test, by comparison, carries only a 30-day hardship-permit restriction for a first offense. Oregon treats refusal of a chemical test more severely than failure.
When you refuse a chemical test, the officer immediately confiscates any Oregon license or permit you hold and issues a temporary driving permit on behalf of DMV. That temporary permit is valid until the 30th day after your 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 as evidence in any DUII proceeding.9Oregon Public Law. ORS 813.310 – Refusal to Take Chemical Test Admissible as Evidence
You can challenge the suspension at an administrative hearing, but your written request must reach DMV Headquarters by 11:59 PM on the tenth day following your arrest.10Oregon Driver & Motor Vehicle Services. Implied Consent Hearing Miss that window and you lose the right to challenge the administrative suspension, no matter how strong your case would have been. Refusing a chemical test does not guarantee no sample is taken either. Officers can seek a warrant from a judge authorizing a blood draw, and warrant applications are often processed by phone or electronically.
If you have been arrested, you also have a state constitutional right to a reasonable opportunity to contact an attorney before deciding whether to submit to a chemical test. The Oregon Supreme Court recognized that right in State v. Spencer (1988), reading Article I, section 11 of the Oregon Constitution to apply once a person is in formal custody on a potentially criminal charge.11Oregon Public Law. ORS 813.130 – Rights of and Consequences for Person Asked to Take Test – Section: Notes of Decisions “Reasonable” is the operative word. Officers do not have to wait indefinitely, but they cannot rush you. This right applies to the post-arrest chemical test. It does not apply to roadside field sobriety tests, because at that stage you are typically not yet in custody.
Practical Guidance at the Stop
Stay calm and polite whatever you decide. If you choose to decline field sobriety tests, say so clearly and leave it there. Avoid explanations like “I only had two drinks” or “I’m just tired.” Statements like those become evidence. The less you volunteer beyond identifying yourself and stating your decision, the fewer tools you give the prosecution.
Know which test is being requested at each stage. Roadside physical exercises are field sobriety tests under ORS 813.135, where refusal to cooperate with nontestimonial tests is admissible but carries no license penalty. A breath, blood, or urine test requested after arrest is a chemical test under ORS 813.100, where refusal triggers an automatic license suspension. If it is not clear which one you are being asked to do, ask the officer to clarify. Once you have been arrested, remember that you can ask for a reasonable opportunity to contact a lawyer before deciding on the chemical test.
And if you have refused a chemical test, the ten-day deadline to request an implied consent hearing is the most time-sensitive issue in front of you. Put it on a calendar the moment you get home.