Author Archives: Rich Oberdorfer

New Cellphone/ Mobile Electronic Device Law in Effect October 1, 2017

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On August 2, 2017, Governor Kate Brown signed House Bill 2597 into law. HB 2597 amends our current cell phone law, ORS 811.507, Operating a Motor Vehicle While Using a Mobile Communication Device to Operating a Motor Vehicle While Using a Mobile Electronic Device.

The changes go far deeper than the title, of course. The new law is a reaction to State v. Rabanales-Ramos, a 2015 case that gave us a little more wiggle room when it came to cellphone tickets. Under the new law, a Mobile Electronic Device is defined as any “…device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.” This covers far more than our old definition of communication devices, which was “…a text messaging device or a wireless, two-way communication device designed to receive and transmit voice or text communication.”

Under the new version a court can find us guilty when we “hold” an MED or use an MED “for any purpose”. We can’t use it when we are at a stop sign or stopped in bumper to bumper traffic because “[d]riving means operating a motor vehicle on a highway or premises open to the public, and while temporarily stationary because of traffic, a traffic control device or other momentary delays.” That means we can no longer rely on the traditional definition of “driving” – to move or propel.

In addition to the stricter law, the legislature has drastically increased the penalties. Operating a Vehicle while using a Mobile Electronic Device will become a B violation with a presumptive $265 fine. If there is a crash you’re looking at  A violation with a presumptive $435 fine. Penalties will increase dramatically for subsequent convictions. For a first offense the court will offer a class in lieu of a fine, but that arrangement puts a conviction on your record.  A second conviction in ten years is deemed an A violation, with no option to take a class. The offense will be enhanced to a B misdemeanor, an actual crime with potential jail time with a minimum fine of $2,000 for a third conviction in 10 years. People who were convicted under the previous law will also face the increased penalties, so I’m preparing to challenge prior convictions.

I still see some defenses in there, but they are doing their best to chip away at them. I look forward to fighting back.

 

UPDATE:

It looks like misdemeanor treatment will be based on previous convictions of the new MED law rather than the MCD law we’ve had for a few years.

Urine Tests for DUII Treatment Programs — The Rules

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Here are Oregon’s rules related to urine testing and dilute samples for DUII treatment programs:

309-019-0195

(9) * * * Urinalysis tests shall be conducted as deemed clinically appropriate, but no less than:

(a) At the time of assessment; and

(b) Twice per calendar month with no more than 14 calendar days between tests; and

(c) Within two weeks prior to completion; and

(d) Within 72 hours of receipt of laboratory results indicating that a urinalysis sample was identified as out of range for Creatinine, pH, or Specific Gravity [“dilute”] as defined by the urinalysis laboratory results;

(10) Urinalysis shall, at a minimum, test for the following substances of abuse:

(a) Alcohol;

(b) Marijuana;

(c) Cocaine;

(d) Amphetamines;

(e) Opiates; and

(f) Benzodiazepines.

(11) In addition to the substances of abuse outlined in section (10), an EtG/EtS test for alcohol shall be conducted, at a minimum, at the time of assessment and within two weeks prior to completion.

(12) Individuals enrolled in DUII Education are expected to demonstrate abstinence from use of intoxicants as evidenced by negative urinalysis reports, except as allowed in ORS 813.200. Individuals who provide a positive urinalysis test or who self-report use of a substance shall be required to complete DUII Rehabilitation.

(13) Individuals enrolled in DUII Rehabilitation are expected to maintain abstinence from use of intoxicants as evidenced by negative urinalysis tests, except as allowed in ORS 813.200, while outside of a controlled environment for no less than the final 90 days of the DUII Rehabilitation program. (bolding added to highlight common questions or problems).

The difference between DUII Education and DUII Rehabilitation is as follows:

(4) DUII Education shall be provided for individuals who:

(a) Do not currently meet DSM diagnostic criteria for a SUD [Substance Use Disorder]; and

(b) Meet ASAM Criteria for Level 0.5; and

(c) Have never been diagnosed with a SUD; and

(d) Have never been enrolled in a DUII or SUD treatment program.

(5) DUII Education shall include a minimum of four sessions over a four-week period and include the provision of a minimum of 12 hours of didactic education. The minimum 12 hours does not include diagnostic assessment, service planning, or transfer planning. DUII Education shall include but is not limited to:

(a) Completion of a Division approved DUII Education Pre and Post Test;

(b) DUII Laws and Consequences in Oregon;

(c) Use of alcohol and other drugs, and their effects on driving;

(d) Physical and psychological effects of alcohol and other drugs of abuse;

(e) SUD signs and symptoms;

(f) SUD recovery support services; and

(g) Alternatives to intoxicated driving.

(6) No more than four of the 12 minimum hours shall be conducted utilizing educational films or pre-recorded audio-visual presentations.

(7) DUII Rehabilitation shall be provided for individuals who:

(a) Meet DSM diagnostic criteria for a SUD; or

(b) Meet ASAM Criteria for Level 1 or higher; or

(c) Have been previously diagnosed with a SUD; or

(d) Have previously been enrolled in a DUII or SUD treatment program.

(8) DUII Rehabilitation shall include:

(a) DUII Education as described in section (5) of this rule; and

(b) SUD treatment services as outlined in the individual’s service plan.

It’s Still Illegal to Impose More Jail For Going to Trial

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The original post on this topic is here: More Jail for Trial? No!

The Court of Appeals has reversed three convictions recently for judges imposing more jail on someone who went to trial:

State v. Robledo, 281 Or App 96 (2016) (Egan, J.) Robledo opinion

State v. Bradley, 281 Or App 696 (2016) (Tookey, J.) Bradley opinion

State v. Criswell, 281 Or App 146 (2016) (Garrett, J.) (this one was for a harsher sentence following appeal) Criswell opinion

Point being, it’s really true: courts cannot use the sentencing power as a stick to force people into pleading guilty, and lawyers should not assist with it. It’s illegal, and it’s morally reprehensible.

Motion to Vacate IID Requirement in Oregon DUII Diversion

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Oregon courts can vacate your DUII Diversion Ignition Interlock Device (IID) agreement after 6 months if you show:

(1) You’ve had the device installed for at least 6 months;

(2) In that 6 months, you’ve had zero “negative reports”; and

(3) You’re in compliance with your alcohol and drug treatment program. Since those programs require a minimum 90-days of demonstrated alcohol and drug abstinence, hopefully you’re done with treatment at 6 months. If you’ve had a dirty UA (urine analysis) during treatment, you will be required to re-start treatment, and at a higher (and more expensive) level of care. More meetings, more time, more hassle (and, of course, you could have Diversion revoked for even a single dirty UA). The key to winning in DUII Diversion really, truly is: abstain from alcohol and drugs for the full year of your contract with the court.

For the IID, a “negative report” is “a report of tampering with an ignition interlock device, unauthorized removal of an ignition interlock device, lockout or a test violation recorded by an ignition interlock device.” ORS 813.645.

ORS 813.645 motivates DUII Diversion petitioners to install the IID promptly upon Diversion entry, to get the 6-month clock rolling. The statute also encourages us to have zero dirty UAs in treatment since we have to prove “compliance.” If you’re sick of the device, ask your lawyer to file a motion to vacate the IID requirement at the 6-month mark. Some lawyers build this into their fee agreements; some ask for an additional fee (it is, of course, more legal work). If you don’t have a lawyer, consider hiring one for this motion to the court — you always have a better chance of things working out for you with a well-respected lawyer at your side. No matter what, you’ll be the one doing the leg-work to get the reports of (a) “compliance” in treatment and (2) 6-months of IID reports sans “negative reports.”

Your lawyer will assemble those documents into a motion to the court, asking to vacate the IID requirement. A hearing may be required, and although your appearance isn’t explicitly required by the statute, odds are slightly better if you show. The court may consider your BAC (Blood Alcohol Content) and other circumstances from your arrest. The text of the statute is here:

ORS 813.645 Motion to vacate requirement to install and use ignition interlock device; rules. (1)(a) As used in this section, “negative report” includes a report of tampering with an ignition interlock device, unauthorized removal of an ignition interlock device, lockout or a test violation recorded by an ignition interlock device.
(b) The Department of Transportation may by rule further define what constitutes a test violation.
(2) A defendant may apply by motion to the court in which a driving while under the influence of intoxicants diversion agreement described in ORS 813.230 was entered for an order vacating the requirement to install and use an ignition interlock device if the defendant:
(a) Has complied with the condition of the diversion agreement described in ORS 813.602 (3) for at least six consecutive months and provides a certificate to the court from the ignition interlock device provider stating that the device has not recorded a negative report; and
(b) The defendant has entered into and is in compliance with any treatment program that the person is required to participate in as a condition of diversion.
(3) The defendant shall cause to be served on the district attorney or city prosecutor a copy of the motion for an order vacating the requirement to install and use an ignition interlock device under ORS 813.602 (3). The copy of the motion shall be served on the district attorney or city prosecutor at the time the motion is filed with the court. The district attorney or city prosecutor may contest the motion.
(4) 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 underlying crime for which driving privileges were suspended.
(b) The blood alcohol content of the defendant at the time of the arrest.
(c) Any other relevant factors.
(5) The court may vacate a defendant’s requirement to install and use an ignition interlock device under ORS 813.602 (3) if, after a hearing described in subsection (4) of this section, the court finds by a preponderance of the evidence that the petitioner:
(a) Has complied with the condition of the diversion agreement described in ORS 813.602 (3) for at least six consecutive months with no negative reports; and
(b) Has entered into and is in compliance with any treatment program required as a condition of diversion.
(6) When a court vacates a defendant’s requirement to install and use an ignition interlock device under ORS 813.602 (3), the court shall notify the department. [2015 c.577 §4]

Photo Traffic Tickets

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Many people just pay photo tickets  believing that the photograph makes it too hard to win. In fact, photo tickets come with a series of hoops for the government which often makes them more winnable than traditional tickets.

Once you hire an attorney we will give the court and prosecutor notice that we are “challenging the statutory preconditions to the issuance of the citation. We typically call this a King Motion, after a case called “State of Oregon v Kermit King”.  ORS 810.436 and 810.439 lay out the preconditions like a checklist.

The precondition I get the most traction out of at trial is 810.439(E) or the sister statute 810.436(d);  which require the government to show that the citation was mailed within 6 or 10 days respectively. Since the cop didn’t mail it the government will have to bring someone who has personal knowledge about the mailing. If at all possible, save the envelope the ticket was mailed in so we can check the postmark. If we can show it wasn’t postmarked in time, we should win!

Many of my clients tell me that they didn’t see the required signage. Most cops working the vans simply testify that they put the signs up and that is the end of it. Judges tend to believe that it’s more likely the driver missed the signs than that the cop is lying under oath. There are times, especially with fixed photo radar, that we can impeach the officer’s testimony with photographs showing the signs were not in compliance.

Another question I get a lot is about the photos themselves; they tend to be blurry and sometimes even dark. The legislature seemed to take bad photography into consideration when they added the rebuttable presumption to the preconditions. That means it is up to the defendant to show that they were not the driver. Typically the government has burden of showing that the defendant was driving but that has been shifted in these tickets.

If you aren’t the driver, sign the certificate of innocence and send it back ASAP. Unless you are a business or government entity you do not have to rat out the driver. If it was you or you can’t tell, hire a lawyer,  plead not guilty and go to trial. False swearing is a felony, you don’t want to turn your traffic ticket into a crime of moral turpitude.

As in any legal matter, it’s always easy to get a good result with a lawyer by your side.

Oregon Ignition Interlock Device — Required When You Blow <.08% BAC?

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The short answer is: no, it’s not required. It’s up to the judge, and it’s an “abuse of discretion” standard. That means the judge has wide (but not unfettered) latitude to either grant or deny an exception to the IID requirement. It’s a call to advocacy for defense lawyers, especially to make a record and consider mandamus relief if not granted, and if the facts are on our side — or if the judge’s decision is based on a blanket DA argument, see below.

The court must impose the IID requirement for you as part of DUII Diversion if:

(1) You blew above .08% BAC.

(2) You refused the breath test.

(3) You blew more than .00% BAC, less than .08% BAC, and a urine test showed controlled substances.

On the other hand, the court is not required to impose the IID provision if you blew zeros and this is just a controlled substance DUII, or if you blew under a .08% BAC and there’s no urine test with drugs in it.

Before I get into statutory language, I want to point out the problem with one DA argument in opposition to relief from the IID requirement: “Judge, we’re concerned that people will switch substances, so even though this prescription DUII case involved no alcohol, we’re worried the defendant will switch from prescription meds to alcohol.” In other words, the DA’s argument was based on hearsay, innuendo, character blackening, and had nothing to do with the facts of the case before the court. If IID relief were denied on this basis, this argument would nullify the statutory exception in every instance, nullifying the legislature’s intent for brief case-by-case judicial consideration. The DA argument did not prevail, but it was breathtaking in it’s “one size fits all” temerity — reminiscent of how that same DA’s office objects to each and every civil compromise.

The statute is here. Note the bolded words:

ORS 813.602 Circumstances under which ignition interlock device required; exemptions; rules. * * *

(3)(a) Except as provided in paragraph (c) of this subsection, as a condition of a driving while under the influence of intoxicants diversion agreement:

(A) The court shall require that an approved ignition interlock device be installed and used in any vehicle operated by the person during the period of the agreement when the person has driving privileges if:
(i) The person submitted to a chemical test of the person’s breath or blood as required under ORS 813.100 and the test disclosed a blood alcohol content of 0.08 percent or more by weight;
(ii) The person refused to submit to a chemical test of the person’s breath or blood; or
(iii) The person submitted to a chemical test of the person’s breath, blood or urine as required under ORS 813.100 or 813.131 and the test disclosed a blood alcohol content of more than 0.00 percent by weight but less than 0.08 percent by weight and disclosed the presence of a controlled substance or an inhalant.

(B) The court may require that an approved ignition interlock device be installed and used in any vehicle operated by the person during the period of the agreement when the person has driving privileges if the person submitted to a chemical test of the person’s breath, blood or urine as required under ORS 813.100 or 813.131 and the test disclosed a blood alcohol content below 0.08 percent by weight.

For information on employer-provided vehicle exemptions, see here: IID Employer Owned Vehicle Exemption

90-Days Perfection for IID in DUII Diversion

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ORS 813.635(2) now provides:

“[T]he requirement to have an ignition interlock device installed in a vehicle continues until the person submits to the department a certificate from the ignition interlock device provider stating that the device did not record a negative report for the last 90 consecutive days of the required installation period. The department shall remove the ignition interlock device requirement from the person’s driving record as soon as practicable after the department receives the certificate.
(3) If there is a negative report during the last 90 consecutive days, the person shall continue to use an ignition interlock device beyond the period required under ORS 813.602 (1)(b) or (c), (2) or (3) until the person submits a certificate, in a form prescribed by rule by the department, to the department from the ignition interlock device provider stating that the device has not recorded a negative report for 90 consecutive days, beginning on the date of the most recent negative report.”

Some DUII Diversion petitioners ask me, “What if I just don’t drive for a year? I can ride my bicycle and use public transit to get around.” In practice DMV accepts 90-day IID compliance from time periods after Diversion has ended. That is a smarter way to handle the 90-day IID statute, because if you blow alcohol into the IID after DUII Diversion, it’s not a violation of your Diversion agreement — it just means you have to start the 90-day period over. If you blow alcohol into the IID during DUII Diversion, you face jail, at least 1-year license suspension, and a non-expungeable criminal conviction on your record.

Oregon DUII Diversion — How Long to Decide?

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If you’re arrested for DUII and you’re eligible for the Oregon DUII Diversion program, the law generally requires that you file your Diversion petition within 30 days of your first court appearance. ORS 813.210(1). However, that deadline can be extended for “good cause.” ORS 813.210(1)(a). The legislature didn’t give us much guidance on what constitutes “good cause,” but they told us what doesn’t: filing a motion to suppress, demurrer, omnibus hearing, or starting a trial.

That 30 day period is extended in drug DUIIs if police obtained a blood or urine sample and there’s no notice of >.08% BAC. In that case, the Diversion window ends 14 days after the prosecutor sends blood or urine testing results to the defendant. ORS 813.210(1)(c).

In 2013 Oregon passed a “Brady Bill,” codifying the discovery obligations of Brady v. Maryland, 373 US 83 (1963). The prosecutor must disclose police reports, notes, and any lab note results of blood alcohol content (BAC). ORS 135.815(1), (3). But subsection (2) addresses timing, indicating those disclosures “shall occur without delay after arraignment and prior to the entry of any guilty plea pursuant to an agreement with the state. If the existence of the material or information is not known at that time, the disclosure shall be made upon discovery without regard to whether the represented defendant has entered or agreed to enter a guilty plea.” ORS 135.815(2).

Most courts understand that a guilty or no contest plea entered without full discovery is on its face not an intelligent and knowing plea. That is, without a lab report indicating what BAC the state attributes to the defendant, the defendant cannot know how her lawyer would defend the case. Lawyers do not defend under-the-limit DUII cases the same way we defend over-the-limit DUII cases. An accurate measurement of BAC can help protect the innocent and convict the guilty, and it is arguably the most important piece of evidence in any DUII case — because it harks from science, not opinion.

Point being: even though the legislature didn’t tell us what “good cause” meant for delaying an Oregon DUII Diversion decision, they did tell us that we’re not supposed to permit guilty pleas without full discovery.

There are times where it may, nevertheless, be wise to enter a plea to enter DUII Diversion without full discovery. For instance, if you feel that you were three sheets to the wind while driving, and you want to start the Diversion obligations, you are not required to wait until blood draw results come back from the Crime Lab (which typically take 6-8 weeks at the time of this writing). The nice thing about starting Diversion obligations in that situation are: (1) they then end sooner; (2) sometimes starting the process of Diversion helps deal with guilt or shame brought on by the arrest; (3) the Ignition Interlock Device (IID) requirement can start during a time when you’re already suspended for refusing or failing a breath test; and (4) early recognition of an alcohol problem can be looked on favorably by courts and prosecutors in relation to other pending charges from the night of the arrest (Reckless Driving, Reckless Endangering, etc.).

The short answer to “how long you have to decide” is: 30 days from your first court appearance. But if discovery is not complete, the law makes clear that you shouldn’t be required to enter a plea and enter the Oregon DUII Diversion program just yet — to give up your rights and defenses at trial, you have to know about what they’d be. And most lawyers can’t tell you how they’d defend your case without knowing what the BAC is.

DUII Trial — Won’t the Court Impose More Jail?

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Oregon DUII defendants are frequently concerned about an increased  jail penalty if they lose at trial after rejecting a plea deal.

It is unlawful for a court to “impose a sentence that is longer than it would have been had [one] not exercised the right to go to trial or not utilized a defense that was inconsistent with owning up to his misdeeds.” State v. Fitzgibbons, 114 Or App 581, 586 (1992). “[C]ourts must not use the sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice. * * * [T]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.” 114 Or App at 586-87 (quoting State v. Smith, 52 Or App 681 (1981), and United States v. Stockwell, 472 F2d 1186, 1187 (9th Cir), cert den 411 US 948 (1973)).

Fitzgibbons reversed a 10-day jail sentence for harassment based in part on the judge’s commentary “that negotiated pleas are based upon whether or not someone is willing to accept responsibility for their behavior and talk to the Court about that behavior and move on with their life or whether they wish to go to trial, they wish to contest it. Those are two different mind sets. I’m dealing with two different people, I’m dealing with two different situations. That’s what I’m looking at. I’m not looking at a penalty for a trial.” 114 Or App at 585-86. The Court of Appeals found sentencing with those considerations was, in fact, a trial penalty. Id.

Reversal was similarly required in State v. Qualey, 138 Or App 74 (1995):

“From my perspective [defendant], you traumatized [the victim] twice: Once was on the day of the incident, and the second was putting him through this court hearing here again. That was a choice you made after lots of reflection, [and] after plenty of opportunity to consider the alternatives * * *.”

After the court conveyed the terms of defendant’s sentence, defendant’s attorney questioned the motivation behind the sentencing decision:

“It sounds as though part of the sentence being imposed is because [defendant] exercise[ed] his constitutional right to have a trial. He is being penalized because he asked for a trial, and the District Attorney felt compelled to call the witness.”

The court responded:

“[Defendant] is entitled to exercise his rights. He is not insulated from the consequences of doing that when it harms other people and there are viable alternatives. * * * The District Attorney offered him Assault in the Fourth Degree and no jail time prior to trial, and [defendant] decided to roll the dice and gamble. That involved not only him and court time and you and the D.A., but it also involved the witnesses, including a small child * * *. That was a decision [defendant] made and he is not insulated from the consequences of that simply because he had a constitutional right to make that decision.”

138 Or App at 76-77 (emphasis in original). Reversal was required – trial penalties simply impermissibly burden and chill a defendant’s absolute right to her day in court.

Point being: it is unlawful for a court to issue a harsher punishment to an Oregon DUII defendant who loses at trial than to a defendant who enters a plea without trial. That’s because trial is a right — not a license, or a privilege. One cannot be punished for exercising a right. Otherwise, it’s not a right at all.

There are two scenarios where I risk more jail by going to trial: (1) where the DA makes a plea offer that dismisses charges (especially more serious charges — particularly if they’re Measure 11); or (2) where the defendant testifies. Scenario 1 is self-explanatory. Scenario 2 happens because some judges propose that if a defendant testified, yet a jury found them guilty, the jury must have believed there was lying in the court. For that reason, among many others, it’s often a better idea in DUII trials to not testify or offer additional evidence. Now that more DUIIs are videotaped, I find less reason to call clients as witnesses at trial — because they’ve said everything important on that video, on the night of the arrest. And in a case where you don’t testify, the judge instructs the jury: “A defendant has an absolute constitutional right not to testify. Therefore, a defendant’s decision not to testify cannot be considered as an indication of guilt. It should not be commented on or in any way considered by you in your deliberations.”

My experience with juries (including being on a jury) leads me to believe that jurors honor and follow those instructions. They want to follow the law, and they will enforce the Constitution. Juries are a great bulwark against the accusatory power of the state — a power that, unchecked, can destroy lives based on raw accusation.

AFTERWARD

This blog post was — surprisingly to me — probably our firm’s most controversial. Most comments on Facebook came from defense lawyers defending judicial practice in their locality of punishing people for exercising their right to trial. Some of the posters took a “federalist” bent, arguing that a trial penalty is perfectly OK in federal courts. The argument forgets that we have state law right on point — and we don’t get to federal law until we deal first with state law. We are not dealing with a blank slate, with no state law decision.

The case is Fitzgibbon, cited above. What follows is a portion of the trial judge’s impermissible commentary that resulted in reversal for re-sentencing: “And you know and I know that in Federal Court that negotiated pleas are based upon whether or not someone is willing to accept responsibility for their behavior and talk to the Court about that behavior and move on with their life or whether they wish to go to trial, they wish to contest it” (emphasis added). In other words, the Court of Appeals has met this “federal sentencing” argument, and said: NOT HERE. If you can be punished for exercising a right, it is no right at all.

Oregon DUII Diversion — What Do I Have to Do?

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DUII Diversion is an admirable Oregon experiment. Most states don’t have it — if you get arrested for DUII, your only choices are: going to trial or pleading guilty. Some states, like Washington, permit plea bargaining on a DUII to something like “Wet Reckless.” Oregon forbids plea bargaining by statute — but we’ve got a great program if nobody got hurt, you don’t have a CDL, and you have no prior DUIIs or court-ordered treatment in the past 15 years. Oregon’s system is based on the philosophy that everybody can make a mistake. Oregon recognizes the nuance in the law: it is NOT illegal to drink and drive, but it is if you have too much. Living with and embracing that nuance means that occasionally we’ll err in judgment. Folks that make that error should get education, and be sent on their way. And it works — the vast majority of clients who come to me for DUII Diversion never have another run-in with the law. They either completely divorce drinking from driving; or they are very moderate and thoughtful when they mix the two; or they teetotal.

Here are the nuts and bolts of Oregon DUII Diversion, both the affirmative obligations and the agreed-upon prohibitions:

Affirmative Obligations:
1. Pay the filing fee.
2. Attend VIP.
3. Successfully complete alcohol and drug evaluation and treatment.

Prohibitions:
1. No driving any vehicle without an Ignition Interlock Device (IID). You’ll have to prove 90-days flawless IID compliance to get your full driver license back too, see ORS 813.635(2).
2. No use of intoxicants, except pursuant to prescription. No use of alcohol, except for religious rites (Communion, Passover) or over the counter medicine used according to the label, post-treatment. I say “post-treatment” because there’s a requirement of demonstrated abstinence during treatment that seems to trump the statute’s permissive use of alcohol in those limited circumstances. Avoid alcoholic mouthwash, tinctures, or hand sanitizer during Diversion.

Another of your DUII Diversion obligations will be to keep the court apprised of your mailing address — because if the court wants to kick you out of Diversion (for, e.g., driving without an Ignition Interlock Device (IID), blowing booze into the IID, or dirty UAs), the court will mail you notice of the hearing to end Diversion and put you in jail. If you don’t show up, you are convicted in absentia. In other words, you must scrupulously review your mail during the entire year of DUII Diversion, and immediately let your lawyer know if you get a notice from the court.

If you comply with all these requirements, your lawyer will file a formal motion to dismiss the DUII at the end of the one-year Diversion period. There is not usually any court date at the end of the year. Instead, the DUII Diversion contract simply ends by its own terms, like a 1-year lease, and the court then waits for your lawyer to file a motion to dismiss. “Dismissed” does not mean “off my record.” It would be on your record for the rest of your life, and not subject to expungement. Every police officer who ran your record would believe your were a drinking driver (at least at one point in your life), so you should expect inquiries about drinking on traffic stops. Any prospective employer, or anyone else running your record, would likely see your DUII Diversion. I mention this because many people think “dismissed” means “off my record” — it doesn’t. For trouble with international travel, see here: DUII Diversion & International Travel

Oregon DUII Diversion starts the day you plead guilty or no contest in court to enter the program. Don’t drive to court unless (a) you still are licensed to drive and (b) you’ve had the IID installed. You cannot drive any vehicle without an IID during Diversion. If you’re suspended at the time you enter Diversion, there’s no need to install an IID while suspended, but at the end of the suspension period you must visit a full-service DMV to get your license reinstated. Then, someone else can drive your car to an IID installer. Once the IID is installed and you have a valid driver license, you can drive the car without violating the Diversion agreement.

The law requires camera IIDs. This is to defeat a claim later that you were not the driver if alcohol is blown into the device. Read my blog about avoiding eating and drinking while or near the time of driving, here: IID False Positives
You should not use alcohol of any kind during Diversion. Do not use perfume or cologne with alcohol during Diversion. Odds are, your IID will sense those substances and report to the court that you are drinking and driving. Do not use mouthwash, shampoo, tinctures, kombucha, or any other substance with alcohol during Diversion.

On the day you enter DUII Diversion, the court may order that you be “booked and released,” pursuant to this statute: “ORS 813.245 Booking. When a court grants a petition for a driving while under the influence of intoxicants diversion agreement, a court shall ensure that the defendant submits to booking, if the defendant has not already been booked on the charge of driving while under the influence of intoxicants in violation of ORS 813.010.” Although “book and release” sounds like a 5 minute process, depending on jail considerations it seems to take between 20 minutes to 2 hours.

After entering DUII Diversion in court, you’ll have two separate evaluations — one with your treatment provider, and one with the court’s evaluator or “ADSS” (Alcohol and other Drug Screening Specialist). You don’t have to wait for the ADSS evaluation to start treatment. The law says you get to “participate” with ADSS in the process to find a treatment provider. If you show up for your evaluation and already have a treatment provider, ADSS can “participate” to make sure it’s a good fit, but I’ve never had ADSS demand that you quit any particular licensed treatment provider. See OAR 415-054-0420(4) (“In addition to all applicable statutory and constitutional rights, every individual receiving services has the right to: (a) Participate in the selection of the treatment program”). You want to find a treatment provider that is convenient to your home or work, and who will treat you as a customer rather than as a criminal. You’re not required to start treatment early — but if you think you have an alcohol problem, or are experiencing acute anxiety, I suggest starting treatment now — it can help with both those issues.

For both evaluations (at ADSS and your treatment provider), the evaluator relies on: (1) your BAC; (2) the police reports; and (3) the interview with you.

Oregon DUII Diversion is a noble experiment, and saves courts vast sums in trial, administrative and jail costs. It’s a not-terrible way to deal with a first DUII. But if your DUII is defensible, or you’re a poor candidate for Diversion, talk with a good DUII lawyer about trial. Your DUII diversion lawyer should talk to you about trial in any event, since the plea form specifically provides that your lawyer has told you about how they would defend your case if it went to trial. Listen carefully, and if you want to give up those rights, do it — but go into the Diversion program with open eyes. Know what you’re getting into, and self-examine to see if you can and will do it.