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