DUII

In most cases, in Oregon a person arrested for DUII will be cited with a date to appear in court and released. The first court appearance, called an arraignment, is the formal process of the court presenting the defendant with the charges that are being brought against them and appointing a public defender if the person requests one and qualifies. It is standard legal practice to enter not guilty pleas at arraignment and to schedule another court date approximately one month out. Generally, DUII defendant has 30 days from the arraignment to petition to enter a DUII diversion, if the petition is not filed with the court within that time, the person loses their ability to enter diversion.

After the arraignment, a competent attorney will request and review the evidence that the state will be using against you. An attorney who is well versed in DUII law will review the evidence for any weaknesses or strengths and will advise you accordingly. If you are eligible for a DUII diversion, the attorney will complete the necessary paperwork and file it with the court before your next appearance. If you are not eligible for a DUII diversion, a decent attorney will advise you whether it’s best to proceed to trial, or to resolve the case through a plea negotiation with the prosecution based on the strengths and weaknesses of your case.

• Defendants often have little experience with the legal system and are unsure what to expect at each stage of the process.

In Oregon, the offense is called driving under the influence of Intoxicants (DUII), but is often referred to as DUI as it is called in some other states. Some similar, but not always identical offenses in other states are driving under the influence (DUI), driving while intoxicated (DWI), .or operating while intoxicated (OWI). Oregon law penalizes a DUII more severely when a person has previously been convicted of DUII or a statutory counterpart in another state. For example, you might be subject to a longer suspension, or even a lifetime revocation of your driver’s license if you get a DUII in Oregon after you’ve been convicted somewhere else. However, whether or not a DUI, OWI, or DWI is a statutory counterpart under Oregon law depends on the elements of the offense as they are written in the law of the state in which the offense occurred. A good lawyer will know how to make this distinction and may have a critical impact on the outcome of your case.

Usually, the evidence in a DUII case includes the arresting officer’s observations of the defendant, including descriptions of the observed driving (swerving, slow to pull over, etc.), observations of the defendant after they were stopped (bloodshot, watery, glassy eyes, slurred speech, etc.), the defendant’s statements, the defendant’s performance during field sobriety tests, and the results of chemical tests for the presence of alcohol or other intoxicating substances in the defendant’s blood, breath, or urine. The observations of other witnesses, such as additional officers at the scene, or civilians who call 911 are also often used as evidence.

Many modern law enforcement agencies use body camera or dash camera footage which can also be used as evidence in a criminal prosecution. This often records statements made by the defendant or other witnesses and the scene of the incident. As a general rule, almost any evidence can be used against you if it is relevant. “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

• Understanding what the prosecution will likely present can help defendants prepare a better defense.

In most cases, the officer already has probable cause to arrest you for DUII before they ask you to do standardized field sobriety tests (SFTs). The officer will ask you to perform SFTs to develop additional evidence to be used against you in a criminal prosecution. You have the right to refuse a field sobriety test, but, unless you ask for a lawyer before SFTs are requested, the evidence of your refusal may be shown to a jury if you later go to trial.

Under Oregon’s implied consent law, you are deemed to have consented to submit to a breath test when you got your license. If the police request a breath test and you have a BAC (blood alcohol content) of 0.08% or higher your license will be suspended for a 90-day period starting 30 days after the breath test failure (for a first offense). If you refuse the breath test, your license will be suspended for 1 year beginning 30 days after the refusal (for a first offense). The police will usually get a search warrant to draw your blood if you refuse a breath test. You may challenge the suspension of your license for a breath test failure or a refusal, but you must do so by requesting a DMV hearing within 10 days of the notice of suspension. This is another reason why it is critical that you talk to DUII attorney as soon as you are charged.

Under current Oregon case law, the police may not ask you to perform field sobriety tests or to submit to a breath test if you have asked for a lawyer. If you invoke your right to an attorney on the roadside the police will apply for a search warrant to seize and search your blood, but you will not receive a suspension for failing or refusing a breath test.

• Refusing to take these tests can have its own set of consequences, and it’s important to understand what those are.

A first time DUII is a Class A misdemeanor in Oregon. This means that if you are convicted the judge can impose a sentence of up to 364 days in jail and a fine of up to $6250 or up to $10,000 if there is a minor in the car when the DUII offense occurs.  A first time DUII conviction also carries a minimum sentence of 48 hours jail or 80 hours community service in lieu of jail and a minimum fine of $1000 for a first offense or $2000 if the driver’s blood alcohol content was 0.15% by volume or higher. The penalties get much higher for second or third and subsequent convictions. For a first conviction, the judge will usually impose something closer to the minimum sentence required by law, but the amount of jail time that a judge will usually impose varies from county to county and city to city across the state.

In addition to the fines and jail time, a DUI conviction will also result:

* Probation with the court for at least one year and possibly longer.

* A one-year driver’s license suspension (for a first offense).

* Court ordered attendance of a victim impact panel.

* Court ordered drug and alcohol use evaluation.

* Court ordered drug and alcohol treatment classes.

* The requirement that you have an initiation interlock device on your car when it is legal to drive again.

* An SR-22 requirement for years after conviction.

An attorney who is skilled in the intricacies of DUII law can help you predict the outcome in your case and may even be able to help you avoid some of these penalties. Timing is critical, so it’s always best to contact an attorney as soon as you are cited or charged for DUII.

• Knowing the range of consequences, from fines to jail time, helps defendants understand the gravity of their situation.

Oregon law prohibits a prosecutor from dismissing or reducing a DUII (driving under the influence of intoxicants) charge if they believe that there is sufficient evidence to prove the charge. This means if there is any evidence that you were driving while impaired, the prosecutor is not allowed to dismiss or reduce the charges through plea bargaining. However, many first-time DUII offenders may be eligible for a DUII diversion which if successfully completed will result in the dismissal of the DUII charge.

Criteria for diversion eligibility can be a bit complicated, and the diversion program itself has many hoops that the defendant must jump through in order to be successful. This is why it is critical to have a competent attorney who knows the intricacies of DUII law if you have been charged. Additionally, a person who is arrested for DUII may often be charged with other crimes such as reckless driving, recklessly endangering another person, or failure to perform the duties of a driver, and a competent attorney can help you get these additional charges dropped or reduced.

• Defendants often want to know if there’s a possibility that the charges against them could be dropped or reduced to a lesser charge.

If you’ve had the good sense to retain an attorney before your first appearance, they will be present and will enter not guilty pleas on your behalf.  If you do not have a lawyer present, it’s best to enter a not guilty plea and ask the judge for time to hire a lawyer or to appoint a public defender if you qualify. As a matter of course, it is customary to enter pleas of not guilty to any criminal charges at the first appearance. This is because you and your lawyer have a right to see all the evidence that will be presented against you before making a decision whether to plead guilty to a crime. Once you have entered a plea, you generally only have 30 days to file a petition to enter into a DUII diversion program and have your DUII dismissed! If that time runs out without good cause, you will lose your ability to go into diversion!

The best course of action is always to talk to a competent attorney who knows their way around DUII law before entering any pleas or accepting any deals. This can have a lasting impact, help you avoid difficulties, and affect the outcome of your case.

• Defendants are often unsure how to plea when facing DUI charges and may look to their attorney for advice.

DUII is a felony in Oregon if a person has two or more prior convictions for DUII or a statutory counterpart from another state within the 10 year period before the current offense. A felony DUII conviction has serious consequences. First, it is a non-expungeable felony, which means you cannot remove the felony conviction from your criminal record. Second, if you are convicted of felony DUII the court will revoke your driver’s license for life. Third, a court must impose a minimum jail sentence of 90 days for a felony DUII conviction. The jail time cannot be reduced for any reason.

A DUII conviction is permanent and cannot be expunged from your criminal history. The conviction will result in a one-year suspension of driving privileges Eligibility for a hardship permit. The convicted driver must show proof for the next three years of driving that they are in compliance with future responsibility filing requirements, which is known in the insurance industry as an SR-22. In addition to the SR-22 requirement, the minimum insurance coverage requirement in Oregon doubles after a DUII conviction. This means that drivers are required to raise their minimum insurance coverage to cover $50,000 in damages per person (up from $25,000) and $100,000 per incident (up from $50,000). Both the SR-22 requirement and the increase in minimum liability coverage will raise the cost of your auto insurance.

It is critical that a person charged with DUII contact a lawyer who is knowledgeable in the law as soon as possible. Many people who are charged with DUII may be eligible for a diversion program which could help them avoid a conviction altogether, and does not affect insurance rates or require an SR-22.

• A DUI conviction can have long-term repercussions on driving privileges and insurance premiums.

DUII defense ranges in price based on several factors. Typically, the cost will range from $5000 to $10,000 if the case is resolved without going to trial. The cost may rise exorbitantly if the case proceeds to trial. The cost increase is based on the lawyer’s hourly rate and the amount of time needed for trial preparation and trial.

Some lawyers may take your case on a flat fee basis instead of at an hourly rate. For example, the lawyer may charge you $5000 to handle your case from start to finish, regardless of how much time it takes. When this is the case, you should ask the lawyer if they will be requesting and trying DMV hearing, and when the representation of you for the DUII offense will be finished. This is because some lawyers will not request a DMV hearing, and some will get you into a DUII diversion program and be done while others will continue to represent you throughout the diversion in case you have any difficulties before the period is over with.

• Legal fees can vary widely, and it’s one of the first things many defendants want to know.