Tag Archives: DUII

DUII and Vehicle Code Expungement in Oregon

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For years, there was no expungement of an Oregon DUII arrest. But in response to DUII Enforcement Officer of the Year David Cox’s repeated arrests of sober drivers, the 2010 legislature amended Oregon’s expungement statute to permit set aside of DUII (or other Vehicle Code) arrests in two situations:

“(c) If no accusatory instrument is filed, at any time after 60 days from the date the prosecuting attorney indicates that the state has elected not to proceed with a prosecution or contempt proceeding, an arrested, cited or charged person may apply to the court in the county in which the person was arrested, cited or charged, for entry of an order setting aside the record of the arrest, citation or charge.

(d) At any time after an acquittal or a dismissal other than a dismissal described in paragraph (c) of this subsection, an arrested, cited or charged person may apply to the court in the county in which the person was arrested, cited or charged, for entry of an order setting aside the record of the arrest, citation or charge.”

ORS 137.225(1)(c) and (d).

The first situation is commonly referred to as “no complaint” at arraignment. The second refers to a prosecutor dismissing a case, or your lawyer winning at trial in favor of acquittal. In either of those situations, DUII and Vehicle Code arrests can now be expunged.

DUII diversion dismissals are not subject to expungement, specifically. “The provisions of subsection (1)(c) or (d) of this section do not apply to an arrest or citation for driving while under the influence of intoxicants if the charge is dismissed as a result of the person’s successful completion of a diversion agreement described in ORS 813.200.” ORS 137.225(8).

DUII or Vehicle Code convictions are similarly never expungeable in Oregon, as there’s no expunging “A conviction for a state or municipal traffic offense.” ORS 137.225(7)(a).

Since DUII and Vehicle Code convictions are never expungeable, it’s important to be thoughtful and circumspect before pleading guilty to those offenses. If there’s a desire to expunge, your lawyer can talk to you about the relative strengths and weaknesses of your case, and you can decide together whether setting the case for trial might be the right thing to do.

Oregon DMV Hearings FAQ for in-person hearings

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QUESTION: Do I have to go to my Oregon DMV Hearing?

You’re not required to attend, but I almost always find it helpful if you do. You can alert me to problems in the officer’s testimony. Plus, the DMV Hearing is your first chance to hear your lawyer fight for you — and get a gauge on how they fight.

QUESTION: Will they ask me any questions at the DMV Hearing?

No. You’re not a source of evidence, because in the related criminal case you have a right to silence. The Administrative Law Judge (ALJ) may confirm your mailing address with you at the start of the hearing. After the officer testifies, you have the right to testify if you wish. In 99% of my DMV Hearings, my client does not testify. There’s rarely any benefit to it in this type of hearing.

QUESTION: How should I dress?

These are informal hearings. The judge will not be wearing a robe and I will not be wearing a suit, unless I’m coming from court! Dress is business casual. 

QUESTION: Who is the Judge?

Your case will be adjudicated by an Administrative Law Judge (ALJ) from the Oregon Office of Administrative Hearings (OAH). The ALJ will not be in a robe or in a courtroom and is not an elected judge. ALJs are lawyers who simply applied for a state job. Sometimes they are experienced, and sometimes not. They’re generally nice people trying to make the right decision.

QUESTION: Will the judge take my license away if we lose — right there?

The ALJ will not make a decision about your suspension at the hearing. Instead, they will mail a written decision to you which must be post-marked before your suspension begins. Your proposed suspension is usually slated to start on the 30th day after the date of your arrest.

QUESTION:  Should I chit-chat with the officer or ALJ while waiting for the hearing? 

No. The officer is trained to listen to how you talk, so he can testify, “It’s much different than on the night in question.” Don’t give him that opportunity.

QUESTION: What’s the point of this DMV hearing?

We’re looking for any reason for the proposed suspension to not be imposed. We’re also investigating the case by questioning the state’s star witness. We use that information to make smart decisions about how to handle the criminal case.

Oregon DMV Hearing FAQs

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QUESTION: Do I have to go to my Oregon DMV Hearing?

DMV Hearings are generally conducted by telephone. If you have a lawyer, you are not required to call in and participate in the hearing — your lawyer can handle the hearing for you. However, I always prefer for my clients to listen in, with their phone on mute after the initial introductions. “Mute” saves us from hearing anything on your end, and avoids accidentally interrupting the hearing.

The DMV Hearing is your first chance to hear your lawyer fight for you — and get a gauge on how they fight.

QUESTION: Will they ask me any questions at the DMV Hearing?

No. You’re not a source of evidence, because in the related criminal case you have a right to silence. The Administrative Law Judge (ALJ) may confirm your mailing address with you at the start of the hearing. After the officer testifies, you have the right to testify if you wish. In 99% of my DMV Hearings, my client does not testify. There’s rarely any benefit to it in this type of hearing.

QUESTION: Who is the Judge?

Your case will be adjudicated by an Administrative Law Judge (ALJ) from the Oregon Office of Administrative Hearings (OAH). The ALJ will not be in a robe or in a courtroom and is not an elected judge. ALJs are lawyers who simply applied for a state job. Sometimes they are experienced, and sometimes not. They’re generally nice people trying to make the right decision.

QUESTION: Will the judge take my license away if we lose — right there?

The ALJ will not make a decision about your suspension at the hearing. Instead, they will mail a written decision to you which must be post-marked before your suspension begins. Your proposed suspension is usually slated to start on the 30th day after the date of your arrest.

QUESTION:  Should I chit-chat with the officer or ALJ while waiting for the hearing? 

No. The officer is trained to listen to how you talk, so he can testify, “It’s much different than on the night in question.” Don’t give him that opportunity.

QUESTION: What’s the point of this DMV hearing?

We’re looking for any reason for the proposed suspension to not be imposed. We’re also investigating the case by questioning the state’s star witness. We use that information to make smart decisions about how to handle the criminal case.

IID Negative Report or Test Violation for an Oregon DUII

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An IID “‘Negative Report‘ means 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.” OAR 415-054-0462(20) (emphasis added).

“Test violation” is defined by statute at ORS 813.599(5):

      (a) For a person who is required to use an ignition interlock device as a condition of a driving while under the influence of intoxicants diversion agreement:

      (A) An attempt to start a vehicle while the person has a blood alcohol content higher than 0.02 percent by weight unless a subsequent test performed within 10 minutes registers a blood alcohol content of 0.02 percent by weight or lower and a digital image confirms that the same person provided both samples; or

      (B) Failure to pass a random retest due to a blood alcohol content higher than 0.02 percent by weight unless a subsequent test performed within 10 minutes registers a blood alcohol content of 0.02 percent by weight or lower and a digital image confirms that the same person provided both samples;

      (b) For a person who is required to use an ignition interlock device and is not subject to a driving while under the influence of intoxicants diversion agreement:

      (A) An attempt to start a vehicle while the person has a blood alcohol level higher than 0.02 percent by weight unless a subsequent test performed within 10 minutes registers a blood alcohol content of 0.02 percent by weight or lower and a digital image confirms that the same person provided both samples; or

      (B) Failure to pass a random retest due to a blood alcohol content higher than 0.02 percent by weight unless a subsequent test performed within 10 minutes registers a blood alcohol content of 0.02 percent by weight or lower and a digital image confirms that the same person provided both samples; or

      (c) For any person required to use an ignition interlock device, a failure to take a random retest.

Should I Start Alcohol Treatment Early?

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If convicted of DUII, or if you enter DUII Diversion, you have a right to attend a DUII treatment program “of [your] choice and [to] be free from undue influence or coercion when choosing a provider,” and it’s not unusual for people to start alcohol treatment voluntarily before meeting with ADES / ADSS. It’s admirable to do so, it serves public safety goals, and it demonstrates early recognition of an alcohol problem (a consideration for the court in whether to allow DUII Diversion, ORS 813.220(2)).

You can generally find an out-patient alcohol treatment center by using internet search terms “alcohol treatment [town].” Sometimes searching in a maps program helps you find a provider nearby. When you call, let the treatment provider know you’ve been arrested for DUII, and you’d like to voluntarily start outpatient treatment early. If the provider says you must wait for court or “ADES,” hang up and call another provider — they’re letting you know they consider the court the client, not you.

ADES / ADSS in almost all circumstances should agree to the provider you’ve selected — in order to honor your rights listed below.

415-054-0481
Individual Rights

(1) In addition to all applicable statutory and constitutional rights, every individual receiving services has the right to:

(a) Choose from available services and supports that are culturally competent, provided in the most integrated setting in the community and under conditions that are least restrictive to the individual’s liberty, that are least intrusive to the individual, and that provide for the greatest degree of independence;

(b) Be referred to a Division approved DUII services provider of the individual’s choice and be free from undue influence or coercion when choosing a provider.

(c) Have the role of the court, DUII services provider, and ADSS monitoring process explained where the DUII system is concerned;

(d) Be treated with dignity and respect;

(e) Confidentiality and the right to consent to disclosure in accordance with ORS 107.154, 179.505, 179.507, 192.515, 192.507, 42 CFR Part 2 and 45 CFR Part 205.50;

(f) Inspect their service record in accordance with ORS 179.505;

(g) Refuse participation in experimentation;

(h) Receive prior notice of transfer, unless the circumstances necessitating transfer pose a threat to health and safety;

(i) Be free from abuse or neglect and to report any incident of abuse or neglect without being subject to retaliation;

(j) Have religious freedom;

(k) Be free from seclusion and restraint;

(L) Be informed at the start of services of the rights guaranteed by this rule;

(m) Be informed of the policies and procedures, service agreements and fees applicable to the services provided and to have a custodial parent, guardian, or representative assist with understanding any information presented;

(n) Have family and guardian involvement in service planning and delivery;

(o) File grievances, including appealing decisions resulting from the grievance;

(p) Exercise all rights set forth in ORS 109.610 through 109.697 if the individual is a child, as defined by these rules;

(q) Exercise all rights set forth in ORS 426.385 if the individual is committed to the Authority; and

(r) Exercise all rights described in this rule without any form of reprisal or punishment.

(2) The ADSS must give to the individual and, if appropriate, the guardian a document that describes the applicable individual’s rights as follows:

(a) Information given to the individual must be in written form or, upon request, in an alternative format or language appropriate to the individual’s need;

(b) The rights and how to exercise them must be explained to the individual and if applicable the guardian; and

(c) Individual rights must be posted in writing in a common area.

Statutory/Other Authority: 413.042 & 430.256
Statutes/Other Implemented: 430.256, 430.205-430.210, 430.254-430.640, 430.850-430.955, 461.549 & 743A.168
History:
ADS 4-2017, adopt filed 12/28/2017, effective 01/01/2018

 

415-054-0490
Referrals

(1) After completion of a screening interview, the ADSS shall initiate a referral to the Division approved DUII services provider of the individual’s choice using forms and procedures designated by the Division.

(2) The ADSS shall provide the individual with a list of all Division approved DUII services providers:

(a) Within the geographic area preferred by the individual; and

(b) In any other geographic area capable of responding to a specific need including but not limited to:

(A) Ability to pay or seek reimbursement through insurance;

(B) Primary language;

(C) Culturally-specific services; or

(D) Hours of operation.

(3) The individual record shall include documentation of which Division approved DUII services providers were offered for referral that has been signed and dated by the individual.

(4) The ADSS may not deny a referral to any Division approved DUII services provider except in cases where the referral would constitute an imminent health or safety risk to the individual. Denials shall be clearly documented in the individual record and include the reason for the denial including the specific health or safety risk posed.

(5) Within three calendar days of a denial being made, the ADSS shall report to the Division using Division approved forms and procedures.

(6) Within five calendar days of the screening, the ADSS shall forward a copy of the Division approved referral form and completed screening instrument to:

(a) The selected DUII services provider; and

(b) The individual.

(7) When the individual is a resident of a state other than Oregon, the ADSS may refer the individual to a program licensed by and located in the individual’s state of residency.

(8) Referrals to out-of-state substance use disorder service providers shall also include a copy of applicable Oregon Administrative Rules for issuance of a DUII Treatment Completion Certificate.

Statutory/Other Authority: ORS 430.256 & 413.042
Statutes/Other Implemented: ORS 430.256
History:
ADS 4-2017, amend filed 12/28/2017, effective 01/01/2018
ADS 2-2011, f. 3-8-11, cert. ef. 3-9-11
ADS 4-2010(Temp), f. & cert. ef. 9-20-10 thru 3-9-11

 

415-054-0485
Screening

(1) The ADSS shall perform a screening interview using documents and procedures designated by the Division for individuals under a DUII Diversion Agreement or convicted of a DUII within the preceding 15 years to determine whether to recommend an individual to a DUII education program or a DUII rehabilitation program.

(2) The ADSS must utilize a screening procedure that at a minimum shall ensure the provision and documentation of the following:

(a) Individuals must be considered for entry without regard to race, ethnicity, gender, gender identity, gender expression, sexual orientation, religion, creed, national origin, age (except when program eligibility is restricted to children, adults, or older adults), familial status, marital status, source of income, and disability;

(b) Individuals must receive services in the most timely manner feasible consistent with the presenting circumstances;

(c) Development and maintenance of adequate records and other documentation for each individual served that demonstrates the specific services for which payment has been requested, including documentation of a suicide risk assessment and appropriate referral;

(d) An authorization for the release of information obtained for any confidential information concerning the individual being considered for or receiving services in accordance with ORS 179.505, Federal Confidentiality Regulations (42 CFR, Part 2), and HIPAA; and

(e) Reasonable effort is made to attain appropriate collateral information including but not limited to the individual’s DUII arrest record.

(3) At the time of screening, the program must offer to the individual and guardian, if applicable, written program orientation information. The information must be written or, upon request, in an alternative format or language appropriate to the individual’s need and must include:

(a) A description of individual rights;

(b) Policy concerning grievances and appeals consistent with these rules to include an example grievance form; and

(c) Notice of privacy practices.

(4) Screening interviews shall be conducted in a face-to-face interview unless:

(a) The individual provides documentation from a health care professional indicating that a face-to-face interview would jeopardize their health or safety;

(b) The individual is a resident of another state or county and lives more than 75 miles from the ADSS service site;

(c) There is inclement weather or other unsafe road conditions; or

(d) Approved by the Division in writing prior to the screening interview.

(5) The ADSS shall clearly document the reason for the absence of a face-to-face interview in the individual record.

(6) Individuals who exhibit risk factors for a substance use disorder as indicated in the Division approved screening tool shall be referred to DUII Rehabilitation Services.

(7) Individuals who do not exhibit risk factors for a substance use disorder as indicated in the Division approved screening tool shall be referred to DUII Education Services.

Statutory/Other Authority: 413.042 & 430.256
Statutes/Other Implemented: 430.256
History:
ADS 4-2017, adopt filed 12/28/2017, effective 01/01/2018

 

415-054-0500
Transfers

(1) An individual may request a transfer to a different Division approved DUII services provider by submitting a request in writing to the ADSS.

(2) The ADSS shall initiate a referral to the requested Division approved DUII services provider as described in OAR 415-054-0490(3) within five calendar days from the receipt of the individual’s written request.

(3) The ADSS may not deny a transfer request to any Division approved DUII services provider except in cases where the referral would constitute an imminent health or safety risk to the individual. Denials shall be clearly documented in the individual record and include the reason for the denial including the specific health or safety risk posed.

(4) Within three calendar days of a denial being made, the ADSS shall report to the Division using Division approved forms and procedures.

Statutory/Other Authority: ORS 430.256 & 413.042
Statutes/Other Implemented: ORS 430.256
History:
ADS 4-2017, amend filed 12/28/2017, effective 01/01/2018
ADS 2-2011, f. 3-8-11, cert. ef. 3-9-11
ADS 4-2010(Temp), f. & cert. ef. 9-20-10 thru 3-9-11

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.

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]

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.