If you, a friend, or a loved one has recently been arrested, cited, or charged with a DUI, then you are in the right place. You want to know what is going on, what the procedure is, and most importantly, how you can minimize the impact this crime can have on someone’s life.
This guide is here to help. By reading the following, you will learn about the Oregon’s DUII and traffic crime process, from arrest to trial, to possible consequences. Hopefully, the information here can point you in the right direction and give you some answers. If you have further questions, or an upcoming court date, it is strongly suggested that you contact an experienced Portland DUI Attorney as soon as possible.
Please use the following menu to jump directly to the section that addresses your question:
- How does Oregon define “Driving Under the Influence”?
- What to do after being arrested for DUII
- Implied Consent Suspensions and DMV Hearings
- Oregon DUII Diversion Eligibility
- Oregon DUII Diversion Requirements
- General Oregon DUII Penalties
- Felony DUII in Oregon
- Marijuana and Controlled Substance DUIIs in Oregon
- Defending a DUII case in Oregon Courts
- Oregon Hardship Permits
- Oregon Reckless Driving, Reckless Endangerment,
and Criminal Mischief
- Oregon DUII Assault
- Bicycle and Boat DUII in Oregon
First off, it should be noted that in Oregon, there is only “DUII.” This stands for Driving Under the Influence of Intoxicants. Other states may abbreviate this as DUI, DWI, OWI, etc. All of those terms are used interchangeably in Oregon. There is no sort of “enhanced DUII,” nor is there a “wet reckless” charge. There is only DUII.
In Oregon, DUII is defined as follows: You must be operating a vehicle (yes, bicycles do count,) on a public highway or public premises, while under the influence of intoxicants. As you might expect, most cases hinge on whether or not someone was indeed “under the influence.” Oregon defines a person as being “under the influence of intoxicants” in the following ways:
Having .08 percent or more by weight of alcohol in the blood, as shown by chemical analysis of the breath or blood; or
Is under the influence of intoxicating liquor, a controlled substance, or an inhalant; or
Is under the influence of any combination of the above.
Oregon law says that someone is “under the influence” if:
The person’s mental or physical faculties were adversely affected by the intoxicants they consumed.
This includes not only the well-known and easily recognized conditions of intoxication but also any abnormal mental or physical condition that results from the consumption of intoxicants and deprives a person of the clearness of intellect or control that they would otherwise have.
If your DUII is based only on alcohol, and your Blood Alcohol Content (BAC) was under .08, you might think that no charges will be filed. Unfortunately, this is incorrect. As noted above, if the prosecution can prove that a person’s mental or physical faculties were adversely affected, then the person can be found guilty of DUII . Law enforcement officers almost always make observations that the driver they stopped smelled of alcohol, had watery bloodshot eyes, and slurred speech. The police use all of these observations to argue that regardless of the result of the breath test, you were under the influence of alcohol and are guilty of violating the Oregon DUII laws.
For a more in-depth discussion of DUIIs based on marijuana, prescription drugs, and other controlled substances, see this discussion below.
This means that if you refuse the breath test, or even if you pass it, you can still be charged with DUII. In these situations, police and prosecutors will focus on any observations they made that can show you were under the influence – any bad driving, anything unusual about your appearance, and your responses to police questions. Because this is such a nebulous standard, you should always discuss your case with an experienced lawyer.
Being arrested, cited, or charged with DUII is a rough time. You may have a lot of confusion about the process, what the next steps are, etc. You were very likely given a court date where the actual criminal prosecution process will start. Depending on the county where you got the DUII, this court date could be in just a few days, or it might be a month out or more. One of the first things you should decide, perhaps in concert with family or loved ones, is whether you want to hire an attorney or not. Almost everyone charged with a DUII in Oregon has an attorney. Some people choose to hire their own attorney, as they want someone with more bandwidth who can devote a significant amount of time to their case. Some people choose to (or, due to financial means are forced to) go with a court-appointed attorney, known as a public defender. Both retained attorneys and public defenders should know how to handle DUII cases. If you are going to hire an attorney, you should make sure that they have experience in this field and a broad base of knowledge. Some retained attorneys have very little experience and do not understand the laws. Public defenders are excellent, intelligent attorneys – their only downside is that they often must handle hundreds of cases at once, meaning that you may not get the personal attention you need.
Next – if you were arrested for an alcohol DUII, and you either took or refused a breath test, then you likely face a drivers license suspension. There may be a way to save your license, but it requires quick action. Within 10 days of your arrest, you have the right to request a DMV hearing to determine the validity of your suspension. This can be done online, here. Note that a public defender cannot handle your DMV hearing for you. For more information about the DMV hearing, please read the next section.
If you were arrested for DUII in Oregon, the first issue you have to deal with will likely be a suspension of your Oregon Driver’s License (or Oregon driving privileges, if you have an out-of-state license) by the Oregon DMV.
Depending on your particular circumstance, your license can be suspended for anywhere from 90 days to 3 years. These suspensions come about as a result of failing a breath test, or refusing a breath, blood, or urine test. Almost all license suspensions start 30 days from the date of the test (or refusal). Your actual license would have been taken away, and you would have been given a temporary permit. The temporary permit functions as your license and is valid for those 30 days. The 30 days can be seen as a “grace period,” during which you must make plans for your upcoming suspension.
If you were in an accident, were taken to the hospital, and consented to a blood test (or the police obtained a warrant for a blood test), your license will not be taken from you. However, you will not know the result of your test that day. If your blood is tested, the results are higher than .08%, and the results are sent to DMV within 60 days, then DMV will mail you a notice of suspension. You have 10 days to request a DMV hearing from when the notice is dated.
If you have an out-of-state license, the police will not take it. However, there is no 30-day “grace period.” Your suspension starts immediately. While your license may still be valid the state that issued it, your right to drive in Oregon is suspended. Also, be aware that the issuing state might slap you with a reciprocal suspension, thereby suspending the validity of your license. If that happens, you will need an attorney from that state to challenge that suspension.
There are different consequences for taking a test and failing, or refusing a test. All such outcomes have negative impacts on your license or driving privileges in Oregon. Here are the suspension lengths under the Oregon’s Implied Consent Law:
|Test and Result||Suspension Period||Hardship Permit Availability|
|Breath or blood test failure||90 days||30 days|
|Breath or blood test refusal||1 year||90 days|
|Breath or blood test failure – enhanced *||1 year||1 year|
|Breath or blood test refusal – enhanced *||3 years||3 years|
|Urine test refusal ^||1 year||180 days|
|Urine test refusal – enhanced ^*||3 years||2 years|
* = Suspension lengths may increase if the driver has had any of the following in the previous 5 years: a DUII conviction, a DUII Diversion, or a driver’s license suspension under the Oregon Implied Consent Laws.
^ = In certain situations where controlled substances (drugs) are suspected, the police may request a urine test, after offering a breath test. If you refuse the breath test and you refuse the urine test, the two suspensions run consecutively (back-to-back). If you take the breath test and pass, but refuse the urine test, then you are still suspended. There is no Implied Consent penalty for taking a urine test, although if the test detects drugs or controlled substances, this will certainly impact your DUII case.
It is possible to challenge an Oregon Implied Consent Suspension. You must make a written request to the Oregon DMV for an “implied consent hearing.” The link is in the above discussion section, and we have provided it here, again. If you hire an attorney, the attorney will request the hearing for you. Remember that the request has to be made within 10 days of your arrest (or notice of suspension).
You should almost always request a DMV hearing. The worst that can happen is that the suspension you already face is upheld. In the best case scenario, you either win the hearing or the officer does not show up. In those cases, you would not face any suspension.
At the DMV hearing, the state is represented by the police officer(s) involved in your case. There is no prosecutor. The police must justify the basis for your arrest, and they must show that they complied with the Oregon Statutes, Constitution, and Administrative Rules.
These hearings are very different from a criminal trial, because the issue is not whether or not you were under the influence. Rather, the hearing focuses on the technical aspects of the processes the police followed. If you are represented by an attorney, these hearings can be very useful tools in preparing your case for trial. The police have to testify about the incident, and it is possible to get a preview of what they will say at the criminal trial. Unfortunately, the hearing is not about whether you need to drive or not. There are no discussions of personal circumstances or hardships. No deals can be made for a reduced suspension. The hearing deals only with the technical aspects of your DUII arrest.
For information on what a hardship permit is and how to get one, see this discussion, below.
In Oregon, there is an option for people facing their first ever DUII charge (or first DUII charge in 15 years). It is called Diversion. Successful completion of Diversion means that no criminal conviction will appear on your record. Thus, Diversion is often a very attractive option. You should be aware, however, that even though you will not have a criminal conviction, and your criminal record will be clean, the Diversion itself and the DUII arrest will still appear on your driving record.
You should also be aware that there is no license suspension in Diversion. However, the Diversion process is completely separate from any license suspension under the Oregon Implied Consent laws, discussed above. In other words, if you face a suspension from an Implied Consent issue, then Diversion will not solve that.
In order to be eligible for Diversion, all of the following must be true statements:
- You have no charge of an offense of DUII or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending on the date you file the petition for a DUII diversion agreement;
- You have not been convicted of an offense described in paragraph 1 within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;
- You are not participating in a DUII diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;
- You did not participate in a diversion or rehabilitation program described in paragraph 3, other than a program entered into as a result of the charge for the present offense, within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;
- You have no charge of an offense of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;
- You have not been convicted of an offense described in paragraph 5 within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;
- You did not hold a commercial driver’s license (CDL) at the time of the offense;
- You were not operating a commercial motor vehicle at the time of the offense; and
- The present DUII offense did not involve an accident resulting in death or injury to another person; and
- You have never been convicted of a felony DUII in Oregon or anywhere else.
If all of these statements are true, then you likely qualify for the Oregon DUII Diversion program. If you think that you might qualify but are not sure, you should speak with an attorney. For example, if you have a prior DUII conviction from another state, that conviction might be insufficient to bar you from Diversion. This might arise if you did not have access to counsel, if the statutes are not “statutory counterparts,” or because of other circumstances. You should also be aware that the prosecutor has discretion to object to you entering Diversion, even if you are technically eligible. Often, this occurs when there were minor children in the car at the time of the alleged DUII incident.
To begin the program, you will have to plead Guilty or No Contest to your DUII. You will NOT be sentenced at that time. However, if you fail to complete the Diversion program requirements, you will not be able to withdraw your plea, and you will be convicted of DUII. It is always worth your while to discuss Diversion with an experienced attorney.
To successfully complete Oregon’s DUI Diversion program and obtain your dismissal, you have to jump through a lot of hoops, as discussed in the next section.
To successfully complete Diversion requires several things. The Diversion program itself typically lasts 12 months. In that time period, you must do the following:
- Undergo an alcohol (and/or drug) abuse assessment
- Comply with any recommended treatment (can range from classes, individual counseling sessions, etc, and can run up to 12 weeks or more; you must also pay for treatment out of your own pocket or through insurance).
- Not drive a motor vehicle with ANY alcohol or intoxicants in your system
- Oregon law has been changed to say that while in DUII Diversion, you must avoid ALL contact with intoxicants, regardless of whether or not you are driving. This means no drinking, period, for that full year.
- Complete a Victim’s Impact Panel (usually costs $30-$50). The VIP is a one-evening class where you will hear from a wide range of people – police on fatal crash teams, nurses from a trauma ward, and people who have lost loved ones because of DUII drivers.
- Pay all required fees, both to the court (usually $490) and to Evaluation Services (usually $150).
- Do not drive a motor vehicle unless you have both a valid license and current insurance.
- If the court requires the use of an Ignition Interlock Device (IID), any vehicle you drive while in Diversion must have an IID attached. In other words, even if you have a valid license and insurance, you may not drive a friend’s car or a family member’s car if that car does not have an IID.
- Some people choose not to drive and thereby avoid the IID for the whole 12 months of Diversion. The Oregon DMV, however, has other plans. The DMV now requires you to have the IID installed for a minimum of 6 months before they will agree that it can be removed. Thus, even if you don’t plan to drive while on Diversion, in order to remove administrative roadblocks, you should probably plan to have it installed.
- All hope is not lost, though. Oregon law says that if you put the IID on your vehicle while in Diversion, and you have 6 months without any lock-outs or fails, then the court can grant a motion allowing you to remove the IID – even if you are still in Diversion. An attorney can help you collect the appropriate paperwork and file the motion.
If you complete these requirements successfully, then at the end of the 12-month period, you will be allowed to withdraw your plea to the DUII charge, and the charge will be dismissed. A 6-month extension is often available if your particular circumstances prevented you from completing treatment or paying your fines in time.
Speaking of fines and fees, although they were mentioned briefly above, here is a bit more detail on what to expect.
Oregon DUII Diversion requires that certain fees be paid before you are deemed to have completed the program. These fees are as follows:
- $490 in court fees
- $150 fee for the alcohol / drug assessment
- $50 (sometimes less) for the victims impact panel
- Fees for treatment and classes (varies depending on assigned treatment program)
- Fees for any random urinalyses (UA’s). Differing programs have different fees.
The court and the treatment providers will do their best to work with you on getting your fees paid. However, inability to pay is not considered a valid reason for failing to comply with treatment. Some health insurers will cover costs of treatment in the Diversion program, so you should check with your individual provider.
Oregon’s laws state that all fees must be paid in order to successfully complete Diversion and have your DUII case dismissed. This means that even if you’ve completed all the classes and treatment, the court may not dismiss your DUI unless all of your fees have been paid. It is possible to request an extension of up to 6 months so you can pay your fees. However, this extends the time period that you are on Diversion and all its restrictions.
Lastly, you should know that if you fail to complete Diversion, then you automatically receive a conviction. Because you pleaded guilty or no contest, you do not get to have a trial. Instead, your plea is entered and face the penalties of conviction.
If you are not eligible for Diversion, then you will have to decide whether or not to go to trial or take a plea. You should know that Oregon law prohibits prosecutors from reducing a DUII to a lesser charge, or giving you a “wet reckless,” or anything like that.
The minimum penalty in Oregon for a misdemeanor DUII is 2 days in jail, or 80 hours of community service, and the minimum fine is $1,000 for the DUII, plus a $255 “DUII conviction fee.” You will have a conviction on your record forever. You will have to take the same series of classes and treatment as in Diversion – but again, there will be a conviction. These things are all minimums. For a first-time conviction, you might wind up close to the minimum. On a subsequent DUII conviction, you will certainly face substantially more time and higher fines.
You will also face a significant license suspension. Please note that the license suspension for a DUII conviction is completely separate from the Implied Consent suspension, discussed above.
The suspension lengths for DUII convictions are as follows. Please note that a successful DUII Diversion does not count as a conviction for the following table.
|DUII Conviction Timeframe||Length of Suspension||Hardship Permit Eligibility|
|1st -ever DUII conviction, or your most recent DUII conviction was over 5 years ago||1 year||None*|
|2nd DUII conviction within 5 years||3 years||90 days**|
|3rd lifetime DUII conviction (no time limit), or Felony DUII||Lifetime***||Not available***|
* = A judge’s signature will be required for you to obtain a hardship permit.
** = A hardship permit is available after 90 days, but you may also be required to complete alcohol/drug treatment. This treatment can often take up to 6 months or more.
*** = This is a revocation, not a suspension. A hardship permit is not available. After 10 years, you may apply for a license reinstatement.
If you are convicted of an Oregon DUII, you face a substantial fine. These fines are set out in the Oregon Revised Statutes, and are generally standard from county to county.
If you are convicted of DUII, you can expect to pay as follows:
- 1st-time conviction: $1000
- 2nd-time conviction: $1500
- 3rd-time conviction: $2000
- Felony DUII conviction: $2000+
The above numbers are in addition to court costs and fees that tend to total around $400. In addition, Oregon law says that if you took a breath or blood test, and your BAC was .15 or more, then your conviction fine shall be increased, leading to a minimum fine of $2000. Some Oregon counties, such as Clackamas (Oregon City, Lake Oswego, etc) hold the bizarre belief that a BAC of .15 or more results in a $3000 fine – $1000 as the base fine, and $2000 as an enhanced penalty. While most defense attorneys believe this is incorrect, the judge is the one who makes the rules.
If you refused to take the breath test, then your DUII fine remains as listed above. However, there is a flat $600-$1000 fine imposed for the breath test refusal, in addition to the DUII conviction fine.
If you have further questions about license suspensions and fines associated with Oregon DUII convictions, feel free to give us a call or to contact a lawyer of your choice.
Some Oregon counties have very specific ways in how they handle DUIIs. In Washington County (parts of Hillsboro, Tigard, Beaverton, Portland, and other cities), the penalties are as follows.
For a first-time conviction, the prosecution will usually agree to the minimum sentence. As a reminder, the minimum is either 2 days in jail or 80 hours of community service, in addition to fines, fees, and treatment. Also, you should expect to be placed on 2 years of DUII probation. Most counties term this “Enhanced Bench Probation.” In brief, because the maximum penalty for a misdemeanor DUII in Oregon is 1 year in jail, the court only imposes 2 of the 365 days up front. The remaining 363 days are held back, subject to your good behavior. If you do not go to treatment or otherwise misbehave, the court can impose every single day of the remaining time.
In Washington County, even if you face a first-time conviction, certain particular facts about your case may lead to the prosecution seeking more than just the minimum. This can occur if you got into a crash, injured another person, damaged property, or directly endangered others – especially minors. Jail time, even on a first-time conviction, can sometimes be as high as 10-20 days, if such aggravating factors are present.
For a second-time DUII conviction in Washington County, the jail time gets much more serious. The county policies state that such a conviction will require at least 30 days in jail. Often times, the prosecution starts higher, sometimes around 50 or 60 days in jail.
Due to the seriousness of these penalties, anyone facing a second-time DUII charge in Washington County should make sure they are in good contact with an experienced lawyer.
Multnomah County is Oregon’s most populous county. Because almost all of Portland lies in Multnomah County, it sees the most DUII charges of anywhere in Oregon. Gresham also is in Multnomah County, and has its own courthouse, called East County. Parts of Tigard, Beaverton, Lake Oswego, and other cities also lie in Multnomah county.
Multnomah County features an “Expedited DUII Plea” docket for first-time convictions. Almost all first-time offenders (who are not eligible for Diversion) are placed on this docket. The idea is to reduce court clutter and backlog. It works like this:
You enter a plea of Guilty or No Contest. You are not sentenced at that time; sentencing is set out 60 days. In that 60 days, you must complete the following:
- Complete your alcohol/drug assessment (not treatment, just the initial assessment)
- Complete the Victim Impact Panel
- Complete 25 hours of community service
If you do this successfully, then upon your return to court for sentencing, you will be told to do an additional 55 hours of community service (in addition to complying with your treatment).
Some people prefer to do the 2 days in jail instead of the 80 hours of community service. For those people, they are usually given a turn-in date, and they must turn themselves in to serve 48 hours in custody.
Whether you choose the jail time or the community service, when you return to court, Multnomah County Judges will sometimes waive a portion of your fines if you complete these requirements. You will then be on probation for 24 months and must continue to follow your treatment and the orders of the court.
That is the “carrot.” The “stick” is that, at that 60-day hearing, if you have failed to comply, then you go to jail for 30 days. No excuses. No exceptions, unless something absolutely catastrophic were to happen. Once you get out, you will still be on probation and will still have to complete all required treatment. In addition, the court will often refuse to waive any any of your fines.
For second-time convictions, there does not appear to be any specific guidelines that prosecutors follow. However, for such a conviction, you should expect something like 20-40 days in jail, along with probation, fines, and treatment.
For multiple-time DUII offenders, Multnomah County offers a somewhat unique program called DISP – DUII Intensive Supervision Program. DISP is a program for multiple-time offenders who face significant jail or prison time. DISP is extremely intensive. You are not allowed to own a car while in DISP – you must sell it or otherwise get rid of it. You are required to do not only alcohol treatment, but you must also enroll in a 12-step program (AA is an example, but due to its religious components, people sometimes prefer other similar, yet non-religious programs). One big requirement of DISP is called “90 in 90.” At the outset, you are required to attend 90 meetings of a group like AA in 90 days. The court suspends a great deal of jail time upon entering DISP. Because many DISP participants are facing felony DUIIs, prison can even be in the cards. So long as the DISP participant goes to meetings, does treatment, and follows the DISP probation officers’ requirements, the participant avoids the bulk of their jail time. However, should they screw up, the court has no problem with imposing hefty sentences. DISP is a serious program for people who need serious help.
Anyone considering DISP or with questions about Multnomah DUIIs should consult with a lawyer.
In Oregon, a DUII becomes a felony based on how many prior DUII convictions someone has. It has nothing to do with how bad a particular DUII incident was or anything like that.
Originally, a person’s fourth conviction in the span of 10 years would be a felony. Remember that a Diversion does not count as a conviction. In 2010, however, Oregon voters approved Ballot Measure 73 (BM73). BM73 changed the law to say that if a person received three DUII convictions in the span of 10 years, then that third conviction was a felony.
If a person’s convictions are spaced out farther along than 10 years, they may still face significant penalties, but they would not face a felony.
Here are some examples:
- Person A: Diversion in 2004, conviction in 2007, conviction in 2010, conviction in 2016. This person would face a felony DUII on the 2016 case, as they received three convictions within 10 years.
- Person B: Diversion in 2000, conviction in 2005, conviction in 2016, conviction in 2017. This person would not face a felony on the 2017 case, as there are not three DUII convictions within 10 years’ time.
It should be noted that both Person A and Person B would face lifetime license revocations as a result of receiving three DUII convictions. There is no time-bar on when convictions must occur to trigger the lifetime revocation.
If a person is convicted of a felony DUII, Oregon law also states that there are no further time bars. So if a person gets a felony DUII conviction in 2015, and then gets another DUII in 2035, it is still a felony.
Lastly, BM73 mandates that a person convicted of a felony DUII serve a minimum of 90 days in jail, without reduction. This means that programs such as house arrest, work release, etc are usually not available. The person has to do every single day of the 90 days behind bars.
Oregon law also has a “stacking” sentence for DUIIs. In short, while a 3rd conviction in 10 years may have a minimum of 90 days, a 4th, 5th, or 6th conviction – even outside of 10 years – may very well lead to prison time. When sentencing on a felony DUII, Oregon law treats past DUIIs as person-level crimes. With enough priors, a person can see 25-30 months in prison, or more, for a felony DUII charge.
While the vast majority of Oregon DUII cases involve alcohol, a growing number of cases now involve marijuana, due to its legalization as a recreational substance.
The big problem with marijuana DUIIs is that there is no set standard of impairment the way there is for alcohol. With alcohol, a BAC of .08% or more is presumptively “under the influence.” Marijuana is not measured by a breath test, but by urine, and there are no percentages in urine tests. Marijuana’s psychoactive ingredient is tetrahydrocannabinol – known as THC. As the body breaks down THC, it is converted into THC-COOH, the main secondary metabolite of THC. THC-COOH can be be detected in urine up to several weeks following marijuana use.
Thus, if a police officer sees signs that they consider “impairment,” and you provide a urine sample, you could be charged with a Marijuana-based DUII even if you haven’t smoked in days.
DUII charges based on illegal drugs (such as cocaine, heroin, PCP) are far more rare and usually less subject to incorrect or false arrests.
Almost all marijuana and drug DUII cases involve the use of a special law enforcement officer called a “Drug Recognition Expert” (DRE). DREs receive different training from normal officers and are called in to investigate cases that involve drugs or controlled substances. DREs have different tests and protocols to follow than do regular officers. DRE cases are complex and having an attorney who knows how to challenge them can make a big difference.
If you are charged with a marijuana DUII, you should consider talking to a lawyer who has handled such cases before – they are very different from alcohol cases and require an attorney with experience in this matter.
Defending a DUII charge in Oregon is tough work. The prosecution and police have a lot of tools at their disposal to attack you with.
In brief: first, any “bad driving” that was observed will be offered as evidence that you were impaired. Next, prosecution will talk about any physical observations the police made of you – for example, red or watery eyes, slurred speech, balance issues. Then, if you agreed to take the roadside tests – Field Sobriety Tests (FSTs) – your performance on those will be judged according to a strict scale, and will be used against you. If you took a breath, blood, or urine test, then those results will be brought forward against you. If you refused a test, then the prosecutor will argue that your refusal shows consciousness of guilt.
So how do we fight DUIIs? It comes down to telling an appropriate story with common-sense explanations. Edward Kroll is a former DUII prosecutor and now defends people accused of DUII, and has a broad background in this.
We discuss the supposed “bad driving” and provide a reasonable, common-sense explanation for it. Perhaps you dropped something. Perhaps your GPS misguided you. Or perhaps the officer exaggerated what they saw. We visit the scene where you were stopped and look for reasons why the so-called bad driving occurred.
Next, we examine the physical clues the officer claims to have seen. Are drinkers or marijuana smokers the only ones who ever have red or watery eyes? Of course not. Perhaps you were coming home from a late work shift and were tired. Has the officer ever heard you speak before? Did they tape your conversation? Then how are they to know how you sound on a regular basis? We also explore your medical history to identify any issues that might have caused you trouble on the FSTs. We also attack the FSTs themselves. When juries see how difficult and exact the scoring systems are, this can often cast doubt on those tests. Lastly, we examine the manner in which your breath, blood, or urine was tested. Machines are not perfect. They make mistakes. Perhaps, as discussed above, any trace of marijuana was from something days, or even weeks old.
Depending on the facts of your particular case, we may hire an expert to testify about the machines used, or the alleged substances consumed. We turn over every rock we can in pursuit of the best defense. Whether you choose us to help you or any other lawyer, be sure that they understand the DUII laws and are well-versed on possible defenses.
If your license is suspended due to an Implied Consent Suspension or a DUII Conviction Suspension, a hardship permit may be available. Hardship permits allow you to drive for a total of 12 hours during any day. The 12 hours need not be consecutive. You can only use a hardship permit to drive to and from work and alcohol treatment. Hardship permits do not allow you to pick ip kids from school, tend to sick parents, etc.
This is the form to apply for an Oregon DMV Hardship Permit.
In addition to filling out the form completely and in detail, several other things are needed:
- You must provide a letter from your work stating the days and hours you work. If you must drive during work hours, the letter must discuss this in detail, including where, when, and why you might be driving. The letter does not need to acknowledge the DUII issue, but as a practical matter, an employer will likely be curious as to why you’re asking for such a thing.
- You must purchase supplemental high-risk insurance, known as SR-22. Costs on SR-22 can very widely, depending on your driving record and insurance company. Even if you don’t get a hardship permit, Oregon DMV may require that you carry SR-22 when your license is reinstated after a DUII conviction.
- You must install the Ignition Interlock Device (IID) in your vehicle.
- If your suspension because of a conviction, then your sentencing judge must approve your application. A lawyer can often help you get the judge’s signature. Many judges will want to see that you’re enrolled in alcohol treatment before they will sign. If your suspension was because of an Implied Consent issue only, then you do not need a judge’s signature.
Keep in mind that it’s the DMV, not the courts, that determine the boundaries of your hardship license.
In addition to DUII charges, some people may also face Reckless Driving, Reckless Endangerment, and Criminal Mischief charges.
Reckless Driving is usually charged when the person gets into an accident, whether by themselves or with another vehicle. Reckless driving is also charged if law enforcement notice extremely erratic driving – high speeds, severe swerving, etc.
Reckless Endangerment is often charged if you have a passenger in the car during your DUII incident. The prosecution will argue that subjecting the passenger to your DUII driving needlessly endangered them. If the passenger is an adult, there usually needs to be some component of “bad driving” to get this charge. If your passenger is a minor, the very act of driving while intoxicated with a minor in the car can be enough. You might also see this charge if law enforcement observes any “near misses” with traffic.
Criminal Mischief, despite its odd name, is simply property damage. If you get into an accident that damages someone else’s property, you will probably see this charge.
All of these charges are misdemeanors. A good attorney can sometimes negotiate dismissal of these charges during a plea bargain. If the DUII is eligible for Diversion, some counties will allow you to go double-or-nothing – essentially, the other charge is also placed into Diversion, so if you succeed they are both dismissed. But of course, if you don’t do well in Diversion, then you wind up with two convictions.
This is serious. If are driving while under the influence and you hurt someone because of this, you will be charged with Assault. The level of the assault is generally based on the injury done to the other person. Assault in the 4th Degree is a misdemeanor, and the most commonly charged DUII assault. Penalties usually involve some amount of jail time over the standard minimum DUII sentence. Assault III, II, or I are all felonies and can carry substantial penalties, including terms in prison.
The most important thing to know about Assault charges are that they disqualify a person from Diversion. It does not matter if you have a completely clean history – if are driving under the influence and you hurt someone, you cannot do Diversion. You will be in the tough position of pleading guilty and having convictions on your record or going to trial and trying to win the whole case.
Did you know that it is possible to get an Oregon DUII while on a bicycle? If you are riding your bike on a highway or public road, and you are “under the influence” as defined above, then you can be charged with DUII, under the same state statute as the typical motor vehicle DUII. These charges are sometimes jokingly called “PUIIs” – Pedaling Under the Influence of Intoxicants. As ridiculous as it may seem, a Bicycle DUII carries the same consequences and fines as a DUII – including mandatory Oregon driver license suspensions. Proceed carefully.
There is a separate statutory charge for “Boat DUIIs.” The actual charge is known as Boating Under the Influence of Intoxicants, leading people to call these things “BUIIs.” As driving is not involved with BUIIs, the license suspension penalties refer to your boating license. However, many of the same fines, fees, treatments, and classes are the same.
If you have been charged with a bicycle DUI or a boat DUI, you should speak to an an attorney as soon as possible.