What is an Ignition Interlock Device / IID “Violation” in Oregon?

The answer to this question is in OAR 737-005-0021. It explains:

(17) “Test Violation” means:

(a) Any attempt to start the vehicle by a person with a BrAC of 0.040 or higher unless a subsequent test performed within 10 minutes registers a BrAC lower than 0.040 and the digital images confirm the same person provided both samples;

(b) Failure to take any random retest unless a review of the digital image confirms that the vehicle was not being operated by the person required to have the IID at the time of the missed test; or

(c) Failure to pass any random retest due to a BrAC of 0.020 or higher unless a subsequent test performed within 10 minutes registers a BrAC lower than 0.020, and the digital images confirm the same person provided both samples.

Your BAC in Hospital Records is Not Private

You might think that physician-patient privilege means your nurse won’t tell the police your hospital blood draw results. You could even think that HIPAA (the Health Insurance Portability and Accountability Act of 1996) protects your privacy as a patient. It does not, if you’re brought to the hospital following a motor vehicle accident in which you were the driver.

HIPAA and Oregon law require hospital staff to notify police when they develop evidence a crime may have been committed. If you’re brought to the hospital after driving, and your hospital blood draw is above .08% BAC, expect a police officer to arrive in the emergency room to charge you with a crime.

ORS 676.260(1) imposes a mandatory reporting duty on health care facilities under certain circumstances. A health care facility “shall notify” a law enforcement officer present at the facility investigating a motor vehicle accident if, immediately after the accident, the facility treats “a person reasonably believed to be the operator of a motor vehicle involved in the accident” and, in the course of treatment, tests the person’s blood and discovers that the person’s blood alcohol level exceeds.08 percent or that the blood contains a controlled substance.

This can be confusing as a matter of forensic science, as hospitals are not testing blood for use in court. They are testing blood to get a ballpark idea of what substances are on-board, so they can make good palliative and treatment decisions. The hospital lab will generally test serum, rather than whole blood. It will always be about 20% higher than a true forensic blood draw.

If you find yourself arrested or cited at the hospital after a car wreck, be sure to get a DUII attorney quickly. Important time limitations apply, and your attorney can help you fight any proposed Implied Consent license suspension related to chemical tests.

Should I Start Alcohol Treatment Early?

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)). 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

Oregon ADES / ADSS Contact Information

Oregon law requires people convicted of DUII or those who enter DUII Diversion to participate in a “screening interview and treatment program,” ORS 813.020(1)(b). The screening interview will be administered by your county’s ADES / ADSS organization. ADES was the pre-2018 term, an acronym that stood for “Alcohol and Drug Evaluation Services.” ADSS stands for “Alcohol and Other Drug Screening Specialists.” The problem: some ADES / ADSS organizations do little to make their contact information available online, some only accept submissions by fax, and one accepts nothing by fax or email — choosing to work only by snail-mail and voice mail. ADES / ADSS contact information for some counties is listed below. It’s always a good idea to double-check on ADES / ADSS contact information with ADES / ADSS personnel, as the offices seem to frequently move or change hands.

Multnomah County ADES / ADSS
506 SW 6th Avenue, Suite 611
Portland, Oregon 97204
Phone 503-719-5741
Fax 503-719-5742
Email [email protected]

Washington County ADES / ADSS
150 NE 3rd Avenue, Suite B
Hillsboro, Oregon 97124
Phone 503-648-3800

Clackamas County PADES (Pioneer Alcohol and Drug Evaluation Services) / ADSS
511 Main Street, Suite 203
Oregon City, Oregon 97045
Phone 503-722-5250
Fax 503-722-5254
Email [email protected]

Hood River County ADES / ADSS
Julio C. Viamonte, ADES / ADSS
Hood River County Courthouse
309 State Street, Room 106
Hood River, OR 97031
Phone 541-386-1718
MAILING ADDRESS: PO Box 13
Hood River, OR 97031

Benton County ADES / ADSS
George Baskerville, ADES / ADSS
ACME Counseling
129 NW 4th, Suite 100
Corvallis, OR 97330
Phone 541-520-3115
Email [email protected]
Across from Courthouse in Courthouse Plaza

Clatsop County ADES / ADSS
Coastal Screenings & Court Monitoring
1000 S Holladay Drive, Suite C
Seaside, OR 97138
Phone 503-739-2788
Email [email protected]
MAILING ADDRESS:
PO Box 901
Seaside, OR 97138

Tillamook County ADES / ADSS
Pacific NW Sentencing Alternatives
Michel Meiffren
Pier 39, 100 39th St, Ste 22-C
Astoria, OR 97103
Phone 503-791-7405
Fax 503-325-8782
Email [email protected]

Polk County ADES / ADSS
Linda Miller
Probation Office, 820 SW Church Street
Dallas, OR 97338
Phone 503-437-5171

Deschutes County ADES / ADSS
Central Oregon Evaluation Services
1045 NW Bond Street, Suite 207
Bend, Oregon 97703
Phone 541-550-7780
Fax 541-550-7885
Mailing address:
PO Box 304
Bend, Oregon 97709

Urine Tests in DUII Diversion — The Rules

Lately I’ve heard one municipal judge assert that a “dilute” urine test must be treated as positive for drugs under Oregon law. I have been unable to find legal support for that assertion, and am in contact with that court’s ADES and, if no luck there, I’ll directly ask the judge for his legal support. In any event, the rules about urine tests are published and have long been established:

309-019-0195

DUII Rehabilitation Programs

(1) In addition to the general standards for substance use disorders treatment programs, those programs approved to provide DUII rehabilitation services must meet the following standards:

(a) DUII rehabilitation programs must assess individuals referred for treatment by the screening specialist. Placement, continued stay and transfer of individuals must be based on the criteria described in the ASAM PPC, subject to the following additional terms and conditions:

(A) Abstinence: Individuals must demonstrate continuous abstinence for a minimum of 90 days prior to completion as documented by urinalysis tests and other evidence;

(B) Treatment Completion: Only DUII rehabilitation programs may certify treatment completion;

(C) Residential Treatment: Using the criteria from the ASAM PPC, the DUII program’s assessment may indicate that the individual requires treatment in a residential program. When the individual is in residential treatment, it is the responsibility of the DUII program to:

(i) Monitor the case carefully while the individual is in residential treatment;

(ii) Provide or monitor outpatient and follow-up services when the individual is transferred from the residential program; and

(iii) Verify completion of residential treatment and follow-up outpatient treatment.

(2) Urinalysis Testing: A minimum of one urinalysis sample per month must be collected during the period of service, the total number deemed necessary to be determined by an individual’s DUII rehabilitation program:

(a) Using the process defined in these rules, the samples must be tested for at least five controlled drugs, including alcohol;

(b) At least one of the samples is to be collected and tested in the first two weeks of the program and at least one is to be collected and tested in the last two weeks of the program;

(c) If the first sample is positive, two or more samples must be collected and tested, including one sample within the last two weeks before completion; and

(d) Programs may use methods of testing for the presence of alcohol and other drugs in the individual’s body other than urinalysis tests if they have obtained the prior review and approval of such methods by the Division.

(3) Reporting: The program must report:

(a) To the Division on forms prescribed by the Division;

(b) To the screening specialist within 30 days from the date of the referral by the screening specialist. Subsequent reports must be provided within 30 days of completion or within 10 days of the time that the individual enters noncompliant status; and

(c) To the appropriate screening specialist, case manager, court, or other agency as required when requested concerning individual cooperation, attendance, treatment progress, utilized modalities, and fee payment.

(4) Certifying Completion: The program must send a numbered Certificate of Completion to the Department of Motor Vehicles to verify the completion of convicted individuals. Payment for treatment may be considered in determining completion. A certificate of completion must not be issued until the individual has:

(a) Met the completion criteria approved by the Division;

(b) Met the terms of the fee agreement between the provider and the individual; and

(c) Demonstrated 90 days of continuous abstinence prior to completion.

(5) Records: The DUII rehabilitation program must maintain in the permanent Service Record, urinalysis results and all information necessary to determine whether the program is being, or has been, successfully completed.

(6) Separation of Screening and Rehabilitation Functions: Without the approval of the Chief Officer, no agency or person may provide DUII rehabilitation to an individual who has also been referred by a Judge to the same agency or person for a DUII screening. Failure to comply with this rule will be considered a violation of ORS chapter 813. If the Chief Officer finds such a violation, the Chief Officer may deny, suspend, revoke, or refuse to renew a letter of approval.

Stat. Auth.: ORS 161.390, 413.042, 428.205 – 428.270, 430.640 & 443.450
Stats. Implemented: ORS 161.390 – 161.400, 430.010, 430.205 – 430.210, 430.240 – 430.640, 430.850 – 430.955, 443.400 – 443.460, 443.991, 743A.168, 813.010 – 813.052 & 813.200 – 813.270
Hist.: MHS 6-2013(Temp), f. 8-8-13, cert. ef. 8-9-13 thru 2-5-14; MHS 4-2014, f. & cert. ef. 2-3-14; MHS 11-2016(Temp), f. 6-29-16, cert. ef. 7-1-16 thru 12-27-16; MHS 18-2016, f. 11-28-16, cert. ef. 11-30-16

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

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

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), and some will simply do it for free as a courtesy. 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 Ignition Interlock Device — Required When You Blow <.08% BAC?

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

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 DMV Hearing FAQs

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

ANSWER: If you have a lawyer there, no, you do not have to attend your Implied Consent hearing. However, I find it almost always helps to have you there. That’s true because most of my clients have their memory jogged by something the officer says, and sometimes it results in us winning the hearing. Also, it’s your first chance to see your lawyer fight for you — and get a gauge on how they fight. After the hearing, I always like to have a 10-15 minute recap with my client to get their impressions and talk about strategy on the criminal case.

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

ANSWER: 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?

ANSWER: 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 and is not an elected judge. They will be dressed in business casual attire or thereabouts. 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: How should I dress?

ANSWER: DMV Hearings are meant to be informal administrative hearings. They are not lawsuits, and they are not in court. There is no need to wear a suit and tie or formal attire. On the other hand, you should look like you’re taking this matter seriously. Business casual tends to work best.

QUESTION: Can I drive to the hearing, or will the judge take my license away if we lose — right there?

ANSWER: If you had a valid license at the time of your arrest, you are still able to drive to and from the hearing. That’s true because, on the night of your arrest, the police officer did not issue you a suspension. They issued you a notice of proposed suspension, slated to start on the 30th day after the date of your arrest.

QUESTION: Where will we meet at the hearing?

ANSWER: These hearings are almost always held in some nondescript office building. We’ll meet inside the hearing room or lobby (depending on the office layout), 15 minutes early.

QUESTION:  Should I chit-chat with the officer while waiting for the hearing? Should I pace in the lobby?

ANSWER: No. The officer is trained to listen to how you talk, and watch how you walk, so he can testify, “It’s much different than on the night in question.” Don’t give him that opportunity. Get a magazine from the rack, get seated, stay seated.

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

ANSWER: 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.