Did Police Ask You to Take a Breath Test Without Reading You Miranda? How State v. Cartier May Affect Your DUII Case
After a DUII arrest in Oregon, the routine is familiar. An officer takes you to the station, reads you the implied consent form, and asks whether you will take a breath test. For years, Oregon courts treated that question as routine paperwork, so police didn't have to read you your Miranda rights first. If you said no, prosecutors could argue you refused because you knew you would fail.
That changed on April 22, 2026. In State v. Cartier, 348 Or App 602 (2026), the Oregon Court of Appeals held that asking an arrested driver to take a breath test is interrogation under Article I, section 12, of the Oregon Constitution. If police ask without first giving Miranda warnings, the refusal can be suppressed (i.e., kept out of evidence at trial). To get there, the court overruled its own 2010 precedent.
What Happened in State v. Cartier
Jennifer Cartier was in a non-injury crash in Washington County. The responding officer noticed an odor of alcohol and other signs of intoxication. He asked if she would be willing to do "some standardized field sobriety tests," and she said no. He then read her a warning: the tests were "purely physical," they would not require her to reveal her thoughts or state of mind, and a refusal could be used against her in court. Before he finished, she said, "I will refuse." He arrested her for DUII.
At the police station, no one read Cartier her Miranda rights. The officer read her the implied consent form, which explains the consequences of refusing a breath test. It ended with the question: "Will you provide physical cooperation to submit to a breath/blood test?" She answered, "No."
Cartier moved to suppress both refusals. The trial court denied both motions and found her guilty of DUII and reckless driving after a stipulated-facts trial that included both refusals.
The Breath Test Ruling: Asking Is Interrogation
Article I, section 12, of the Oregon Constitution protects your right not to be compelled to testify against yourself. Once you are in custody, police must give Miranda warnings before they interrogate you. "Interrogation" means more than direct questions. It includes any words or actions that police should know are reasonably likely to draw an incriminating response.
The court held that a request to take a breath test meets all three parts of that definition:
It's incriminating, and the request is reasonably likely to produce that response. Prosecutors use a refusal to argue that you said no because you believed you would fail. And when police ask whether you'll take the test, yes and no are the only responsive answers.
It's testimonial. For the same reason, a refusal communicates your state of mind: that you think you would fail the test.
It's the kind of evidence the State uses at trial. The officer asked only for physical cooperation, not for constitutional consent to a search. That kind of refusal is generally admissible, which is exactly why the request matters.
Why the Court Overruled Its Own Precedent
In State v. Gardner (2010), the Court of Appeals held that a breath test request is not interrogation because it is "normally attendant to arrest and custody," like a booking question. Gardner relied on a footnote in a U.S. Supreme Court case, South Dakota v. Neville (1983).
In Cartier, the court called that analysis "incomplete and partially inaccurate." Under Oregon law, routine booking questions are exempt from Miranda only if they are not designed to elicit incriminating information. Gardner skipped that step and adopted the Neville footnote without scrutiny. The court also pointed out that whether the request was interrogation wasn't even at issue in Neville, because that defendant had already been read his rights. The court overruled Gardner, along with the part of State v. Higley (2010) that relied on it.
The State has the burden to prove that a refusal is admissible. In Cartier's case, the State never argued that the booking exception applied, so there was no evidence about why the officer asked. The court added that it is "difficult to conceive" of a breath test request serving a purely administrative purpose. Because Cartier was in custody, had not been read her rights, and was interrogated, her refusal should have been suppressed. The court reversed both convictions and sent the case back to the trial court.
The Field Sobriety Test Ruling Went the Other Way
Cartier's refusal to do field sobriety tests was still admissible. Under recent cases like State v. Anderson (2025), the State can use that refusal against you only if the officer's request could reasonably be understood only as a request for physical cooperation, not as a request for your consent to a search.
The officer's first question, whether she would be willing to do "some standardized field sobriety tests," was ambiguous. But his follow-up warning made clear that he was asking only for physical cooperation. That second refusal was the one used at trial, so it came in. The lesson is that the exact wording matters. Small differences in how an officer asks can decide whether a refusal is admitted or excluded.
What Cartier Means If You Were Arrested for DUII
If you refused a breath test before receiving Miranda warnings, your refusal may be suppressible in your criminal case. The issue has to be raised in a motion to suppress before trial.
If you took the breath test without receiving Miranda warnings, your attorney can argue that the evidence should be excluded under Cartier and Article I, section 12, of the Oregon Constitution. Cartier itself involved a refusal, so how courts will treat this argument is still developing.
The DMV is a separate fight. Refusing a breath test still leads to a license suspension under the implied consent law, and you still have only 10 days to act. See how to request your DMV hearing.
The law may still develop. Cartier is a Court of Appeals decision, and the Oregon Supreme Court could take up the issue.
Talk to a Portland DUII Attorney
Many DUII cases turn on exactly what was said at the roadside and at the station. Before you sign a plea or a diversion petition, it's worth having a lawyer review the body cam footage and the implied consent process for problems like the one in Cartier.
If you were arrested for DUII in the Portland area, give us a call at 503-453-4273, and we can discuss your case in a free consultation. For first-time DUIIs, we offer flat-fee DUII diversion representation. We also handle DUII cases in Gresham, Columbia County, Hood River, The Dalles and Bend.
This article is for general informational purposes only and is not legal advice. Reading it does not create an attorney-client relationship. The outcome of any case depends on its specific facts.