INFORMATION ON DRUNK DRIVING CHARGES AND LICENSE SUSPENSIONS IN OREGON.

By Robert J. Larson, Attorney at Law.

399 E. 10th Avenue, Eugene, Oregon. 97401 3202

Phone 541 343 3640

(c) Copyrighted 2005, 2006, 2007, 2008 Robert J. Larson, Attorney at Law, Eugene, Oregon. Member Oregon State Bar since 1971.

Last revised on June 28, 2008.

General information on driving under the influence of alcohol or drugs in Oregon, also commonly called drunk driving, DWI or DUII. This article is for anyone stopped in Oregon for driving under the influence of intoxicants (drugs or alcohol) in Oregon.

The information contained on this site is not meant to provide or constitute legal advice for a particular case. Each case is different and the legal approach depends on the specific facts of your case. If you need legal advice for a DUII in another state you should see an attorney licensed to practice in your jurisdiction for specific legal advice as to your problem.

Every legal problem is unique and a few facts or different laws of different states can effect what advice an attorney would give you. Talk to a licensed attorney for legal advice.

Call me at 541 343 3640 or 685 9100 or e mail me at:

E Mail: Click here to send me E-Mail to my e mail address at bobl@efn.org.

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Remember in Oregon you have only 10 calendar days from the date of arrest to attempt to stop a license suspension from DMV (Department of Motor Vehicles)for failure or refusal of a breath test or refusal of urine test. The request must reach DMV within 10 days. (There may be an exception for extreme emergencies but don't rely on this if your emergency is you just forgot or did not have time.) If you are in a hurry and do not want to read this article, call me at 541 343 3640 for immediate attention.

This is a two part article on what to do when you are stopped for Driving Under the Influence and what to do when you are charged with driving under the influence in the State of Oregon.

If you wish to go to the second part of this article, what to do after you have been charged with a DUII click here to go to the Court section.

What to do when you are stopped for driving under the influence in the State of Oregon. General information only, see an attorney for advice on your case.

If you want to skip ahead to what happens after you have been arrested by the police and cited to appear in court click here to go to the Court section.

First, call an attorney immediately. In Oregon your license to drive may be suspended after a DUII arrest. if you do not request a hearing to contest the suspension within 10 days of the date you are arrested for DUII and you failed or refused the breath test. ( The request must BE RECEIVED AT THE DMV Hearings Branch within 10 calendar days of the date of arrest, NOT JUST MAILED. )

The suspension by DMV is independent of what happens in court. This suspension for refusal of a breath test or failing the test is not part of the criminal DUII charge.

Don't wait too long to call an attorney. Most stops for DUII are accompanied with a suspension for either failing or refusing a breath test. This is not true in every case but it is important that you call an attorney in any case. The following information is of a general nature as each case turns on its own facts. The sooner you can contact an attorney, the better off you may be. If you can call an attorney right after being stopped go ahead and do that. However, if you are stopped at 2 a.m. and can't reach an attorney, contact one the next day, don't wait. You can reach me at my office in Eugene, Oregon at 541 343 3640 OR 685 9100.

Needless to say, the best defense is not getting stopped at all and that means, don't drive after you have been drinking. This is especially true if you have had more than one or two drinks OR IF YOU FEEL THE ALCOHOL AFTER JUST ONE DRINK. In Oregon if you have a breath test result of .08 or higher you are presumed to be under the influence of alcohol. That presumption can be defended against in court but it is better not to be in that position as you may lose. Obviously the best defense is having a .00 breath reading or a low reading. If you are under 21 DMV will suspend you if you show any alcohol at all unless you have a legal defense. Again give me a call at 343 3640 or 685 9100. If you can't reach me call an attorney in your area.

You don't have to be "drunk", merely under the influence to be charged.

If you want to skip ahead to what happens after you have been cited in to court click here to go to the Court section. .

Driving Under the influence in Oregon, means being perceptibly affected by the use of intoxicants while operating a motor vehicle on a road open to the public. ( PERCEPTIBLE applies to what can be discerned by the senses often to a minimal extent ).

The charge of DUII is really an allegation that while operating a motor vehicle you were affected minimally by an intoxicant in any of your physical or mental faculties by the use of an intoxicant, which can include not only alcohol but drugs or prescribed medications. A bicycle is considered a motor vehicle under Oregon law. You can also be charged with Driving a Boat under the influence of alcohol.

Again, remember, you don't have to be drunk to be convicted of driving under the influence.

The only advantage to having something non-alcoholic to drink after having been drinking alcoholic beverages is that it takes time and in that time you may be burning off some of the alcohol you drank. Let someone who hasn't been drinking do the driving and give you a ride home. If that is not an option call a cab, $30 for a cab is a lot less than several THOUSAND dollars in court costs, diversion fees (if eligible), attorney fees, etc. Getting a ride can also save you from being involved in an accident and killing someone, in which case money will be the least of your worries.

Ok, so you didn't follow the advise above and you have been pulled over by that friendly officer in blue who really thinks he is General Patton and you are the enemy. What do you do?

After trying DUII cases in Oregon for over twenty years, I can tell you a few things that will help avoid additional problems. Please keep in mind that these are general rules but they can help make a bad situation from getting worse.

Be courteous, even if the police officer isn't! You don't have to be offensive to assert your rights to remain silent and refuse the eye test (horizontal gaze nystagmus test) and the balance or field sobriety tests. Your refusal may be used against you in court.

If you are asked to take some balance tests, also known as field sobriety tests, politely refuse, stating that you want to talk with an attorney and you do not want to take any balance or field sobriety test or say anything until you have the opportunity to consult with your attorney.

You can always tell the officer you are too nervous, too tired, or both, if that is the truth, but that may open the door for further comment or questions where you get yourself into trouble. Simply tell the officer you don't want to take any field sobriety test or discuss anything about your driving or alleged drinking until you talk with an attorney.

Please keep in mind a field sobriety test is NOT THE SAME THING AS A BREATH TEST. Because of the consequences for failing to take the breath test we now advise clients as a GENERAL rule to take the breath test. SEE BELOW.

The officer may arrest you after you refuse to do the field sobriety test but the chances are he or she will do that anyway. If you haven't had anything of an intoxicating nature and are in reasonably good shape and not overweight or have poor coordination you may want to take the field sobriety tests, especially if you have a sober witness with you who can observe the tests.

Remember these tests are difficult to take completely sober and are divided attention tests that have multiple elements. For example, you may be asked to walk an imaginary or real line for 9 steps, pivot turn as demonstrated and walk back while keeping your heel to your toe and counting each step out loud with your arms down at your side. Doing this test completely sober under stress can be difficult. Also you are relying on the officer to be fair and objective and the officer is looking for ANY minute mistakes. The officer's report might read as follows:

"I told him to stand at attention when I was explaining the tests and he moved, I told him to touch his toes together while walking nine steps, counting each step out loud and in a straight line with his arms at his side. He walked the nine steps but he moved his hands out at steps 4,6, and 8, and also failed to count out loud on his way back and didn't touch his heel of his shoe with his toe." AND YOU THOUGHT YOU DID IT PERFECTLY!!!!!!

I would much rather defend a case without a divided attention/balance test, i.e. field sobriety test, than one where I have to deal with a police officer's frequently exaggerated and hyper critical assessments of how you did on the test. Don't debate the issue of refusing the balance/divided attention tests with the officer.

If the tests are being video taped you may not be told that but there are a few sure clues. First, you can always just ask the officer if he has a video camera and if he says no you can use that as an explanation for not taking the field sobriety test (remember that does not include the breath tests. The general rule of thumb regarding breath test is to take the test because the suspension period for a refusal is one or three years depending on your prior driving under the influence history.) And now the State legislature has amended the law to also impose a financial penalty for refusing the breath test.

If the officer doesn't tell you about a video recording, you may be able to figure it out anyway. The major clue is that the officer will have you stand directly in front of his patrol vehicle so that the camera, which is mounted inside can record you. The video recorder will also be making an audio recording of anything that is said. My general experience is that the police are not using video in most cases as it helps the defense in many instances and the cops know this.

Assume that everything you tell the officer is being audio taped. This is not true in some jurisdictions but it is common for the State Police to use audio tapes and sometimes video tapes. In some cases, I have had the officer keep the tape going even after going into the jail and taking the breath test.

BREATH TEST...

Regarding breath tests in Oregon, you will be asked to take a breath test and correctly advised that if you refuse to take the test that your license will be suspended for at least a year and maybe three years.

I now advise clients in Oregon to take the test, as the suspension of your driver's privileges for that long a period of time can have tremendous effects on you. If you are already suspended for a years period of time or longer then I would probably advise you to refuse the test. Also if you don't care about being suspended for refusing the test then it gives your attorney a better opportunity to defend you on your Driving Under the Influence charge but keep in mind even if you win the criminal case and you were suspended for a refusal, that suspension will not be lifted because you were acquitted.

If you take the breath test in Oregon and fail it, you will be suspended by the Department of Motor Vehicles for at least 90 days and it could be longer if you have a prior failure , refusal or duii conviction. This suspension is in ADDITION to any suspension you may get if you are convicted later of Driving Under the Influence.

Again, I want to emphasize that being polite and not argumentative is the best way to handle the police officer. You can also politely refuse to take any test. You don't have to curse the officer or tell him where to go.

After you take the breath test you have a right to have a blood test taken at your own expense and the officer has to transport you to a hospital for that test. It will probably cost you between $80 and $120 but it could be worth it if the breath test turns out to be inaccurate.

If the officer asks you for your driver's license, you should give it to him or her. If the officer asks you where you reside, you should provide that information. In most cases in Lane County, Oregon you will be given a citation to appear in court and released after taking the breath test. However, if you get argumentative or abusive, plan on spending a day or so in the gray bar hotel (otherwise known as the jail) before you get bailed out.

When you are taken into custody the police will handcuff you. Usually they put the cuffs on too tight, so don't be afraid to point that out, but again do it politely. You can always sue them later if they used excessive force but calling him or her a son of a bitch or worse won't improve the situation.

Don't try and sweet talk the cop. It won't work and it sounds bad on the tape the next morning. Don't try and bribe the police, it will get you in more trouble, such as a felony charge.

Generally the best rule of thumb is to immediately assert your right to an attorney and remain silent.

However if you want to discuss anything I suggest you limit your remarks to the following if it is truthful and not to go further. The problem here is that in most cases people will say more than the bare minimum. With that in mind:

It is ok to tell the officer about your broken leg or bad back. However, a smart policeman might ask something like this: "Well did your broken leg cause your breath to smell like a brewery?" or "Did you break your leg after drinking too much tonight?"

It is ok to tell the officer about your diabetes or hyperglycemic or hypoglycemic condition.

It is ok to tell the officer that you have optic nerve damage from the war or some other cause if you do have such a problem.

It is ok to tell the officer about your inner ear balance problem.

It is ok to tell the officer that you are dyslexic if you are.

Don't lie!!! Again it is best to say nothing at all. If you don't have any relevant condition to tell him or her about, say nothing at all. Don't tell the officer you only had two beers and were just in a fight with your husband or wife. It won't help and all you will be doing is digging yourself into a hole.

Don't say "I can't even do these tests sober". That is an implied admission of guilt in most peoples view.

Don't tell the officer "I'm not drunk." You aren't being charged with being drunk, you are charged with being under the influence which means that the alcohol or drugs you took (legal or otherwise) have affected you to a noticeable degree in any of your physical or mental faculties.

If you admit you feel the alcohol "a little bit", YOU ARE INCRIMINATING YOURSELF.

If you are asked to rate yourself on a scale of 0 to 10 with 0 being perfectly sober and 10 being falling down drunk, don't say "Oh, I'm a three or a four." Refuse to answer the question and assert your right to an attorney.

An attorney may be able to argue about what you meant if you ignore this advise and answer the question but at least some of the jurors are going to take that as an admission that you felt the alcohol. Just tell the officer you have nothing to say until you talk to an attorney and that you don't want to answer that or any other questions about your drinking or driving.

The sooner you assert your right to talk to an attorney and remain silent the better off you will be but don't go saying something after that or it will be construed as a waiver or giving up of your rights, in many cases.

As mentioned above, it is ok to give out your name, address, phone number and the name of a person who can give you a ride home.

If you are arrested and released, DON'T GO GET YOUR CAR. If you do the chances are you might join the exclusive "Two Bagger Club" where you get charged a second time in one night for DUII. IT HAPPENS!

Also if you have been charged with DUII and haven't hired an attorney yet, do so. An attorney very well may be able to help you in ways that we haven't gone into here. Also keep in mind that the above is general information and each case has its own particular facts that may require a different approach. DUII is serious and you should treat it seriously.

Driving Under the Influence of Intoxicants in Oregon is a crime. In Oregon, the MINIMUM penalty is two days in jail OR a minimum of 80 hours of community service and a $1000 fine or more if a 2d conviction. The Maximum penalty is 1 year in jail, a $6250 fine ($10,000 in some cases) plus costs and assessments, a required alcohol education or rehabilitation program that can include a required residential program, a one year suspension of your driver's license for a first time DUII conviction. in addition to any suspension for failing or refusing the test, however they may run concurrent from the effective date of the last suspension. Also required is a mandatory attendance at a one day victims impact program and any other general conditions of probation the court may impose including no possession or consumption of alcohol. The Legislature has raised the MINIMUM fine to $1000 for the first offense, $1500 for the second and $2000 for the third in addition to all the other penalties.

Also if this is your fourth DUII in a period of the last ten years (in Oregon or elsewhere) it will be treated as a Class C felony with different and more serious penalties., see ORS 813.010. The MINIMUM fine for a person convicted of a third or subsequent conviction if not sentenced to a period of imprisonment is $2,000. Go to the bottom of this page to see the actual statute.

If you have no prior convictions for DUII and you meet other qualification requirements you may be eligible for a diversion program. Ask your attorney about this program and see below for more information on diversion.

One of the consequences for being convicted of DUII is that when you get your driver's license back you will be required to install an ignition interlock device at your own expense and keep it in your car for at least one year. Also if you fail a breath test and apply for a hardship you will be required to install the device.

Participation in a diversion program or conviction for a DUII will be noted on your driving record and your insurance company will have access to that record.

Criminal Driving while suspended when the suspension is for conviction for Felony Driving Under the Influence, is a Class C felony in Oregon, and carries with a maximum penalty of five years in prison and a maximum fine of $100,000 plus cost with a minimum $1,000 fine for the first offense and a minimum $2,000 fine for the second offense. see ORS 811.175 and 811.182. If the underlying charge is a DUII misdemeanor then the Driving While Suspended is a class A misdemeanor with a minimum fine for the first time offense of $1,000. The Court can sentence you up to a maximum of one year in jail. If the DWS is a second DWS then the fine will be greater.

Any hardship driving permit for a DUII conviction requires employment verification and also you will be required to install an intoxilizer ignition interlock system. Ask me for more details.

The Oregon Legislature revised some of the DUII laws over the past two sessions. Among the changes are laws regarding the breath test and diversion. In addition to being suspended for refusing a Breath test you can now be fined between $500 and $1,000. Another changes is that if you are eligible for the diversion program you now have to plead guilty to the DUII charge to get the benefits of diversion and if you fail diversion you will not get a trial but will be sentenced.

Also the legislature has provided that on a third conviction for DUII you will have your license revoked for up to 10 years to life, read the statute below:

809.235 Permanent revocation of driving privileges upon conviction of certain crimes; restoration of privileges. (1)(a) Notwithstanding ORS 809.409 (2), the court shall order that a person’s driving privileges be permanently revoked if the person is convicted of any degree of murder or of manslaughter in the first degree and the court finds that the person intentionally used a motor vehicle as a dangerous weapon resulting in the death of the victim.

(b) The court shall order that a person’s driving privileges be permanently revoked if the person is convicted of felony driving while under the influence of intoxicants in violation of ORS 813.010 or if the person is convicted of misdemeanor driving while under the influence of intoxicants in violation of ORS 813.010 or its statutory counterpart in any other jurisdiction for a third or subsequent time.

(2)(a) A person whose driving privileges are revoked as described in subsection (1) of this section may file a petition in the circuit court of the county in which the person resides for an order restoring the person’s driving privileges. A petition may be filed under this subsection no sooner than 10 years after the person is:

(A) Released on parole or post-prison supervision; or

(B) Sentenced to probation if the probation is not revoked and the person is thereafter discharged without the imposition of a sentence of imprisonment.

(b) The district attorney of the county in which the person resides shall be named and served as the respondent in the petition.

(3) The court shall hold a hearing on a petition filed in accordance with subsection (2) of this section. In determining whether to grant the petition, the court shall consider:

(a) The nature of the offense for which driving privileges were revoked.

(b) The degree of violence involved in the offense.

(c) Other criminal and relevant noncriminal behavior of the petitioner both before and after the conviction that resulted in the revocation.

(d) The recommendation of the person’s parole officer, which shall be based in part on a psychological evaluation ordered by the court to determine whether the person is presently a threat to the safety of the public.

(e) Any other relevant factors.

(4) If, after a hearing described in subsection (3) of this section, the court is satisfied by clear and convincing evidence that the petitioner is rehabilitated and that the petitioner does not pose a threat to the safety of the public, the court shall order the petitioner’s driving privileges restored. [1993 c.761 §2; 1995 c.661 §2; 2001 c.786 §1; 2003 c.346 §2; 2003 c.402 §22; 2005 c.436 §1]

Also DUII can be charged as a felony:

"Driving while under the influence of intoxicants is a Class C felony if the defendant has been convicted of driving while under the influence of intoxicants in violation of this section or its statutory counterpart in another jurisdiction at least three times in the 10 years prior to the date of the current offense and the current offense was committed in a motor vehicle. For purposes of this subsection, a prior conviction for boating while under the influence of intoxicants in violation of ORS 830.325 or its statutory counterpart in another jurisdiction, or for prohibited operation of an aircraft in violation of ORS 837.080 (1)(a) or its statutory counterpart in another jurisdiction, shall be considered a prior conviction of driving while under the influence of intoxicants." ORS 813.010 (5).

One of the more recent changes was to not allow diversion for a person who holds a commercial driver's license.

The above is general information only. See an attorney immediately if you are stopped and cited for Driving Under the Influence. The case law in this area is continuously changing so make sure you see an attorney as soon after your stop as possible.

Robert J. Larson
Attorney at Law
399 E. 10th Avenue
Eugene, Oregon 97401 3202
Phone (541) 343 3640
Facsimile (541) 343 4116

E Mail: bobl@efn.org

What is an arraignment?

An arraignment is the time you make your first appearance in court and enter a plea. You will enter a Not Guilty plea at your first appearance and you can always change that later. The Lane County Circuit Court will generally NOT take a guilty plea at the time set for arraignment. At this appearance the Court will advise you about your diversion options under Oregon law.

What is Diversion?

Diversion is a process by which a person who has been charged with Driving Under the Influence can avoid criminal prosecution IF it is his first DUII within 10 years and there is no accident involved in this case that has caused injury to another person. You must also enter a plea of guilty or no contest to the duii and if you complete the diversion program that plea will be set aside at the end of the one year diversion period. You will not be allowed to file for diversion under the 2005 amendments to the DUII statutes if you had a commercial drivers license at the time of the offense or were driving a commercial motor vehicle, see Oregon Session Laws, 2005, Chapter 649, Section 29.

If you do not complete diversion successfully, you will be sentenced on the DUII and you will NOT have a trial. As for the diversion, in Lane County you must pay a filing fee of $322 to the Court and another $150 to the Mental Health Evaluation program to get into diversion. These fees may change or be handled differently by some courts. Some Courts will collect the diversion petition fee and mental health fee together. Ask to find out if the fees have changed. Time payments are generally allowed when you request it and file a complete financial affidavit. The alcohol program you are diverted to will charge you an additional fee for their program. Payment of that fee is a condition of successfully completing the diversion program. If you are indigent you should apply for a fee waiver or deferral.

When must I apply for Diversion?

If you are going to apply, it must be within 30 days of the first appearance in Court. Some Judges are more lenient with this requirement than others but ASSUME you must file within 30 days or you will be denied that opportunity. If you have gone past that date, still ask your attorney if she or he can get the period waived.

Why would I want to file for diversion?

You would want to file for diversion if you are eligible and have a weak defense to the charge and want to avoid the potential of being found guilty and subjected to the penalties of being found guilty if you went to trial. Those penalties that the court may impose if you go to trial and are found guilty include possible jail and a one year suspension or three year suspension of your driving privileges depending on your duii record.

But how do I know if I have a questionable or weak case?

Consult an attorney who handles Driving Under the Influence cases. There are many defenses both technical, legal and factual which the lay person is not aware of in most cases. This is a constantly changing area of the law. Don't make any assumptions, consult an attorney.

"But I blew a .10 and I know the legal limit in Oregon is .08 or higher. How can I defend against that if I choose Court over diversion?"

In many cases a .08 or higher reading may be explained by other factors rather than being under the influence. Some, but not all of those factors, include:

1. The Police Officer did not have probable cause to stop you in the first place.
2. The intoxilizer wasn't working properly.
3. The test was administered incorrectly.
4. A medical condition caused a false reading.
5. You had a foreign substance, such as chewing tobacco, in your mouth when you took the test, giving a false high reading.
6. You had previously burped, vomited, or regurgitated into your mouth, causing the machine to sample non deep lung air, which it is suppose to do to get an accurate reading.
7. You used an inhaler prior to the test.
8. You have lung problems that caused a false high reading.
9. The stop and arrest was not done correctly.

"But none of those things happened and I felt the effects of the alcohol. What then?"

First, as far as the legal defenses, you are not in a position to make that judgment without the help of a skilled DUII attorney. However if your attorney determines you have a weak case you probably want to apply for diversion and avoid the costs and results of going to trial on a losing case but talk with your attorney before making that decision.

"Ok, what is diversion again?"

It is a program where instead of going to trial you get into an alcohol education and rehabilitation program. You are now required to plead guilty or no contest to the DUII charge before being allowed into diversion. You must successfully complete the program and assuming you have met all the conditions the DUII guilty plea will be set aside at the end of a year upon your request or automatically by the court depending on which court system you are in. The end result is that you have NO conviction for DUII if you complete the program successfully. For more information ask your attorney or see the definition above on diversion.

If you decide to participate in diversion rather than go to trial, you should be aware that the fact you participate in diversion is part of your driving record. Your insurance company may cancel your insurance or move you into a high price carrier as a result of going into diversion. That will also most certainly occur if you go to trial and lose.

"What if I had a DUII conviction within the last 10 years and was represented by an attorney?"

In that case you are most likely not eligible for diversion and must either go to trial, negotiate a change of plea with the help of an attorney, or go in on your own, like a lamb to slaughter, and plead guilty without the help of an attorney.

"Well I would like to hire an attorney but I don't think I can afford it?"

You may be eligible for a court appointed attorney. Ask the Court at your first appearance for a court appointed attorney. You will be referred to ] the indigent verification office in Lane County where you will be interviewed as to your financial situation. You will be required to fill out an affidavit under oath about your finances and provide financial information. Similar procedures are used in other Oregon counties.

TRIAL INSTEAD OF DIVERSION.

WHETHER YOU GO TO TRIAL OR NOT, IT HAS NOTHING TO DO WITH DMV SUSPENSION OF YOUR LICENSE FOR FAILING OR REFUSING TEST. IF YOU DON'T PARTICIPATE IN DIVERSION OR ARE NOT ELIGIBLE FOR DIVERSION YOUR OPTION IS EITHER TRIAL OR PLEAD GUILTY TO DUII

Basic facts regarding trial.

"Should I have a Jury or Judge trial?"

I try all my cases to a jury which is to decide guilt or innocence, unless there is a good technical defense that I think a jury would not like but a Judge would. Also a client may not be able to afford to pay an attorney for a trial that will last one to two days but still wants a trial. Trying a case to a Judge takes less time and that may be an option. However, I would normally recommend that any DUII case be tried to a jury.

"What is "under the influence?"

It is either having an uncontested blood alcohol level of .08 or higher on an intoxilizer or blood test or being perceptibly affected in any of your faculties by the use of alcohol. A .08 can be rebutted by other evidence of sobriety.

"What if there is no breath test? Do I win automatically?"

No, the State can attempt to prove you were driving under the influence without a breath or blood test. They will attempt to show that you were under the influence by evidence showing you were perceptibly affected in either your physical or mental faculties. They will try and show that you either failed some balance and attention tests, you drove poorly, your voice was slurred, your physical appearance was such as to make a person think you were under the influence, or a combination of any such factors.

"What are my trial rights?"

1. You are presumed innocent.
2. You have a right to a Jury trial and a unanimous 6 person jury must agree as to innocence or guilt in a misdemeanor DUII case. In a felony DUII case, a 10-2 verdict is sufficient for conviction or acquittal on a DUII felony charge.
3. The burden of proving guilt is on the state and they must prove guilt beyond a reasonable doubt.
4. You have the right against self incrimination (that is you can not be forced to testify), but if you testify the other side can ask you questions.
5. You have right to testify if you want. You have the right to offer all relevant evidence.
6. You have the right to subpoena in witnesses on your own behalf. A subpoena is a court order requiring a person to appear in court.
7. You have the right to confront and cross examine witnesses against you.
8. You have a right to be represented by an attorney.

Penalties if Found Guilty and Conviction Entered (Trial Loss or Failed Diversion and Revocation) :

1. Minimum is either 2 days jail or 80 hours community service if you are charged with a misdemeanor DUII.
2. Minimum fine is $1000 plus costs for the first offense. Maximum fine is $6250 ($10,000 in some cases) unless the offense is charged as a DUII felony. The Courts will also impose various costs and assessments.
3. Additional suspension of driver's license for one year or longer depending on your record.
4. You must participate in an Alcohol program and pay for it in addition to fines.
5. You will in most cases be placed on informal or formal court probation. Usually informal in Lane County, other counties such as Benton and Linn may place you on formal probation. It is up to the Judge.
6. You will be required to participate in a one night Victim Impact program, and they charge a fee which varies from county to county.
7. If you have had more than one DUII conviction, your vehicle registration might be canceled by the Department of Motor Vehicles. If you have more than one conviction for DUII the minimum fine will increase.
8. Other consequences include being required to have an ignition interlock device put on your vehicle as a condition of a hardship permit if you are convicted for DUII crime and also for a period of six months AFTER your suspension for DUII has run and an indirect result may be having your automobile insurance canceled or the premiums increased drastically. You will be required to provide proof of insurance.
9. If you are an alien a conviction for a DUII can have catastrophic consequences, see an Immigration attorney before you enter a plea or a diversion program on a DUII case.

   GENERAL PROVISIONS 813.010 Driving under the influence of intoxicants; penalty. (1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person: (a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150; (b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or (c) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance. (2) A person may not be convicted of driving while under the influence of intoxicants on the basis of being under the influence of a controlled substance or an inhalant unless the fact that the person was under the influence of a controlled substance or an inhalant is pleaded in the accusatory instrument and is either proved at trial or is admitted by the person through a guilty plea. (3) A person convicted of the offense described in this section is subject to ORS 813.020 in addition to this section. (4) Except as provided in subsection (5) of this section, the offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any premises open to the public. (5)(a) Driving while under the influence of intoxicants is a Class C felony if the current offense was committed in a motor vehicle and the defendant has been convicted, at least three times in the 10 years prior to the date of the current offense, of any of the following offenses in any combination: (A) Driving while under the influence of intoxicants in violation of: (i) This section; or (ii) The statutory counterpart to this section in another jurisdiction. (B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicating liquor, a controlled substance, an inhalant or any combination thereof. (C) A driving offense in another jurisdiction that involved operating a vehicle, an aircraft or a boat while having a blood alcohol content above that jurisdiction’s permissible blood alcohol content. (b) For the purposes of paragraph (a) of this subsection, a conviction for a driving offense in another jurisdiction based solely on a person under 21 years of age having a blood alcohol content that is lower than the permissible blood alcohol content in that jurisdiction for a person 21 years of age or older does not constitute a prior conviction. (6) In addition to any other sentence that may be imposed, the court shall impose a fine on a person convicted of driving while under the influence of intoxicants as follows: (a) For a person’s first conviction, a minimum of $1,000. (b) For a person’s second conviction, a minimum of $1,500. (c) For a person’s third or subsequent conviction, a minimum of $2,000 if the person is not sentenced to a term of imprisonment. (7) Notwithstanding ORS 161.635, $10,000 is the maximum fine that a court may impose on a person convicted of driving while under the influence of intoxicants if: (a) The current offense was committed in a motor vehicle; and (b) There was a passenger in the motor vehicle who was under 18 years of age and was at least three years younger than the person driving the motor vehicle. [1983 c.338 §587; 1985 c.16 §293; 1987 c.138 §5; 1991 c.835 §7; 1999 c.619 §3; 1999 c.1049 §1; 2003 c.14 §495; 2003 c.445 §1; 2007 c.879 §3]

   SUMMARY OF MAXIMUM penalties:

   1. Maximum of one year in jail and a $6250 fine and costs unless you are charged with the more serious felony, plus costs.
   2. Probation and the above mentioned alcohol program at your expense, victim impact panel which is a one day program again at your own expense, suspension of driver's license, and alcohol program which is similar to diversion alcohol program.

   The Department of Motor Vehicles will also require as a result of a conviction for DUII, that AFTER you get your driver's license back that you must use an Intoxilizer Ignition system for one year, AT YOUR OWN EXPENSE. Costs average $70 installation and $70 a month and this is subject to change. The statute reads:

   813.602 Circumstances under which ignition interlock device required; costs; failure to install; penalty; exemptions; rules. (1) When a person is convicted of driving while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance, the Department of Transportation, in addition to any other requirement, shall require that an approved ignition interlock device be installed and used in any vehicle operated by the person:

   (a) Before the person is eligible for a hardship permit. The requirement is a condition of the hardship permit for the duration of the hardship permit.

   (b) For a first conviction, for one year after the ending date of the suspension or revocation caused by the conviction. Violation of the condition imposed under this paragraph is a Class A traffic violation.

   (c) For a second or subsequent conviction, for two years after the ending date of the suspension or revocation caused by the conviction. Violation of the condition imposed under this paragraph is a Class A traffic violation.

   (2) If the court determines that approved ignition interlock devices are reasonably available, the court may require as a condition of a driving while under the influence of intoxicants diversion agreement that an approved ignition interlock device be installed in any vehicle operated by the person. Courts may not exercise authority under this subsection during any period the courts have notice from the Office of Economic Analysis of the Oregon Department of Administrative Services that there are not sufficient moneys in the Intoxicated Driver Program Fund to pay the costs under subsection (4) of this section. The Office of Economic Analysis of the Oregon Department of Administrative Services may not issue any notice under this subsection if federal funds are available to pay the cost of the interlock devices for indigents and costs of analysis of the use of interlock devices.

   (3) Except as provided in subsection (4) of this section, if an ignition interlock system is ordered or required under subsection (1) or (2) of this section, the person so ordered or required shall pay to the provider the reasonable costs of leasing, installing and maintaining the device. A payment schedule may be established for the person by the department.

   (4) The department may waive, in whole or in part, or defer the defendant’s responsibility to pay all or part of the costs under subsection (3) of this section if the defendant meets the criteria for indigence established for waiving or deferring such costs under subsection (5) of this section. If the defendant’s responsibility for costs is waived, then notwithstanding ORS 813.270, the costs described in subsection (3) of this section must be paid from the Intoxicated Driver Program Fund.

   (5) The department, by rule, shall establish criteria and procedures it will use for qualification to waive or defer costs described under subsection (3) of this section for indigence. The criteria must be consistent with the standards for indigence adopted by the federal government for purposes of the food stamp program.

   (6) At the end of the suspension or revocation resulting from the conviction, the department shall suspend the driving privileges or right to apply for driving privileges of a person who has not submitted proof to the department that an ignition interlock device has been installed or who tampers with an ignition interlock device after it has been installed. If the suspension is for failing to submit proof of installation, the suspension continues until the department receives proof that the ignition interlock device has been installed or until one year after the ending date of the suspension resulting from the first conviction or two years after the ending date of the suspension resulting from a second or subsequent conviction, whichever comes first. If the suspension is for tampering with an ignition interlock device, the suspension continues until one year after the ending date of the suspension resulting from the first conviction or two years after the ending date of the suspension resulting from a second or subsequent conviction. A person whose driving privileges or right to apply for privileges is suspended under this subsection is entitled to administrative review, as described in ORS 809.440, of the action.

   (7) The department shall adopt rules permitting medical exemptions from the requirements of installation and use of an ignition interlock device under subsection (1) of this section. [1987 c.746 §2; 1989 c.576 §1; 1991 c.453 §15; 1993 c.382 §3; 1993 c.627 §6; 1999 c.770 §7; 2001 c.786 §4; 2003 c.26 §1; 2007 c.655 §1]

   Information on Seizure and Forfeiture of Your Vehicle!

   809.730. (1) A motor vehicle may be seized and forfeited if the person operating the vehicle is arrested or issued a citation for driving while under the influence of intoxicants in violation of ORS 813.010 and the person, within three years prior to the arrest or issuance of the citation, has been convicted of: (a) Driving while under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction; or (b) Murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle in this state or in another jurisdiction. (2) All seizure and forfeiture proceedings under this section shall be conducted in accordance with ORS chapter 475A.

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   What about the DMV hearing for breath test failure or refusal?

   The DMV hearing is independent of your trial and diversion rights in Court. If you lose the DMV hearing your license will be suspended despite winning a trial later. The Not Guilty verdict will be entered in the driving record however. The DMV suspension can trigger insurance consequences with your insurance company.

   You must make your request for a hearing to challenge the suspension in a certain form and make sure it reaches DMV the DMV Hearings Branch office in Salem, Oregon within ten days of the stop or have a very good reason for not having made a timely request.

   At the DMV hearing the police officer may now present evidence and cross examine witnesses if the State is not represented by an attorney,

   More on Trials and DUII cases...

   In a Felony DUII case the attorney must give notice of his or her intent to challenge the validity of the prior conviction at least seven days prior to the first date set for trial...Note the requirement regarding the first date set for trial...a trap for the unwary.

   813.328 Notice of intent to challenge validity of prior convictions. A defendant who challenges the validity of prior convictions alleged by the state as an element of felony driving while under the influence of intoxicants must give notice of the intent to challenge the validity of the prior convictions at least seven days prior to the first date set for trial on the felony charge. The validity of the prior convictions shall be determined prior to trial by the court. [1999 c.1049 s.4]

   The Legislature has enacted statutes relating to DUII convictions including a forfeiture of automobile statute:

   809.730 Seizure and forfeiture of motor vehicle. (1) A motor vehicle may be seized and forfeited if the person operating the vehicle is arrested or issued a citation for driving while under the influence of intoxicants in violation of ORS 813.010 and the person, within three years prior to the arrest or issuance of the citation, has been convicted of or forfeited bail or security for:

   (a) Driving while under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction; or

   (b) Murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle in this state or in another jurisdiction.

   (2) All seizure and forfeiture proceedings under this section shall be conducted in accordance with ORS chapter 475A. [1999 c.1100 s.2]

   I need more advise about my arrest in Oregon, what should I do?

   Glad you asked! Call me at (541) 343 3640 and I will arrange an interview to go over your case and discuss attorney fees.

   Robert J. Larson
   Attorney at Law
   399 E. 10th Avenue
   Eugene, Oregon. 97401-3202
   

   E Mail: bobl@efn.org

   Telephone: (541) 343 3640

   Facsimile: (541) 343 4116

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   The information contained on this site is not meant to provide or constitute legal advice for a particular person. If you need legal advice you should see an attorney licensed to practice in your jurisdiction for specific legal advice as to your problem. Every legal problem is unique and a few facts or different laws of different states can effect what advice an attorney would give you. Talk to a licensed attorney for legal advice.

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   Call or E Mail me below if you need my services.

   Robert J. Larson
   Attorney at Law
   399 E. 10th Avenue
   Eugene, Oregon 97401-3202
   

   Phone (541) 343 3640 or 685 9100
   Facsimile (541) 343 4116
   E Mail: Click here to send me E-Mail to my e mail address at bobl@efn.org.

   The contents of this web page constitute among other things an advertisement for the legal services of Robert J. Larson, attorney at law.

   (c) Copyrighted 2005, 2006, 2007, 2008 Robert J. Larson, Attorney at Law, Eugene, Oregon, USA. Phone: 541 343 3640.

   June 28, 2008.