What to do if you are stopped for DUII

Perspective from a Portland DUII lawyer:

Let’s say you meet some friends downtown after a long week of hard work. You catch up, and have 2 beers over the course of your time together. On your drive home, you signal 75 feet before making a lane change — the law requires a continuous signal for at least 100 feet. An officer who has been following you turns on overhead lights.

“The reason I pulled you over is for not signalling at least 100 feet before your lane change. License, registration and insurance, please. I can smell some alcohol, how much have you had to drink tonight?”

The best answer would be, “I don’t answer questions.” The officer may make light of the answer, suggest you’re not under arrest, and ask again. “I don’t answer questions,” is a good response to repeated questions. The simple word, “lawyer,” works too.

If you admit to drinking any alcohol, the officer will later call it “the admission of drinking” and use it to hurt you. This does not mean you should lie. Lying is wrong. Just invoke your right to not answer police questions.

“Well, I’m just trying to keep the streets safe tonight. Where are you coming from?”

“I don’t answer questions.” Don’t SAY you know your rights, SHOW you know your rights.

Now the officer is stuck. You’ve made it clear that you are not a source of evidence against yourself, and he has to decide if he has seen enough to justify arresting you for a crime. If he hasn’t, he’ll send you on your way. If he has, he’ll arrest you. There will also be a request for field sobriety testing, but the Oregon Constitution says we’re not required to reveal our thoughts, beliefs, or state of mind — so consider that. In my experience, if you’re not a particularly athletic person you will probably fail the field tests. If you respectfully decline, the officer will tell you he might use it against you at a later hearing. If you’re arrested, don’t freak out — the officer made that decision a long time ago. Now you’ve got to figure out what to do about the breath test.

For most people looking at a first-time DUII arrest, it’s a good idea to blow. First, you might blow well under the legal limit. Second, even if you blow over the limit, the license suspension penalties are much gentler for a failed breath test, rather than a refusal. Third, as a Portland DUII lawyer, I see more officers getting warrants for blood draws if a driver refuses. Nobody wants a cop, or cop-friendly paramedic, sticking a needle in their arm. In any event, if you have any doubts, ask the officer to let you call a lawyer in privacy before making the breath test decision. They’re supposed to give you at least 15 minutes to do this.

If you blow under the legal limit, great! But keep your mouth shut. Some officers can’t believe they got it wrong, and will call in another officer to consider whether you are under the influence of drugs. They do this primarily by asking you, “What drugs have you taken?”

Remember, we have a Bill of Rights that says we don’t have to answer police questions. “I don’t answer questions,” or “I invoke my right to silence and counsel” works, as does, “I don’t answer questions. I want my lawyer here during any questions.” As a practical matter, this cuts-off (and is intended to cut-off) all police questioning.

If you blow over the legal limit, keep your cool, keep a poker face. Continue not making any statements (silence is never supposed to be used against you). Call a good Portland DUI lawyer the next morning! Important timelines come up very quickly.

You might ask why you would call a Portland DUII lawyer instead of someone local to your community. By all means, if there’s a good DUII lawyer in your town, go with that person. However, we’re becoming a bit of a rare breed in parts of Oregon. If you can’t find a DUII attorney to help you, consider calling someone in Portland. Because we live and work in an area with a large population, and many police agencies, it means we deal with a lot of DUII arrests — and incredibly well-trained, experienced, battle-hardened officers. Sometimes your local doctor can handle all your needs, but sometimes you want a specialist — who handles nothing but your kind of problem. Like doctors, lawyers tend to specialize if we can — and we can in a high-density area. Call the best DUII lawyer you can find.

Note: DUI and DUII and DWI are acronyms that describe various state crimes — in Oregon, it’s DUII (Driving Under the Influence of Intoxicants). Remember that it is NOT illegal to drive after having consumed intoxicants — like beer, or marijuana / cannabis / THC, or prescription medication — but it is illegal if your mental or physical faculties are adversely affected to a noticeable or perceptible degree because of the alcohol, or drug. Like much in life, it comes down to moderation. It’s not illegal to drink and drive — it is if you’ve had too much. Be careful out there, and get a good DUII lawyer on your side!

IID False Positives: donuts, bagels, Altoids, and coffee

How to avoid IID false positives? Don’t eat or drink anything within 15 minutes of using an Ignition Interlock Device (IID). And since they come with “rolling re-tests,” don’t eat or drink while driving at all.

That’s the advice I give everyone about IIDs. It is shocking, and a life-change for many busy people who typically have coffee or food while driving. I give this advice, however, for a few different reasons: Continue reading

IID Employer Exemption

If you’re required to have an Ignition Interlock Device (IID) by the Oregon DMV, there’s an exception that permits you to drive employer-owned vehicles without an IID if: (1) you tell your employer as referenced below; and (2) you have proof you’ve told your employer on you when you drive. Here’s the law as amended by HB 2116 (2013): Continue reading

DUII Mugshot Websites and HB 3467

Many of my DUII clients have been victimized by the “mugshot” websites or “Busted”-type magazines. Those entities prey on human frailty. Their customers are, in a documented sense, dealing with truly low self-esteem.

On one hand, who cares about the troglodytes who would buy (!) Busted or check out those websites? On the other hand, many employers “Google” someone before offering them a job? Continue reading

Relicensing and Proof of Treatment

For folks looking to reinstate their driving privileges: DMV’s rules require proof of successful alcohol treatment before you can get your license back following a DUII conviction. There are a only a few, narrow exceptions: (1) it’s been more than 15 years; (2) a Circuit Court judge signs an order that says you made “sufficient steps” to complete treatment; or (3) it’s an out-of-state DUII conviction we’re talking about. The rule reads as follows:

735-070-0085 Continue reading

Not Illegal to Drink & Drive — Court Surprised?

In reading the Oregon Supreme Court’s new opinion on State v. Moore, I was shocked to see this statement: “As part of the state’s effort to deter persons from driving after drinking, ORS 813.010 creates the crime of driving under the influence of intoxicants.” Slip Op. at 5-6 (Dec 12, 2013). Continue reading

Oregon DMV Hearings — Scheduling

When I meet with new clients, they are often embarrassed, confused, and overwhelmed. Among the confusion is the fact that a DUII arrest frequently institutes two separate proceedings against the driver:

(1) The criminal case; and

(2) DMV’s proposed license suspension for failing or refusing a chemical test. Continue reading

Who is an Oregon CDL Holder? It’s not who you think

If you look at this issue on Oregon DMV’s website, or “Google” it, you’ll often get this (incorrect) answer: “Oregon statute defines a CDL holder as a person who was issued a CDL by DMV or the licensing agency of any other jurisdiction, as long as the CDL is:
* Not expired, or if expired, expired less than one year; or
* Suspended, but not cancelled or revoked.” Continue reading

SR-22 & IID after DUII Conviction — Oregon License Reinstatement

For Oregon license reinstatement after a DUII conviction, you must first wait out the suspension period, and then:

(a) file a SR-22 insurance certificate with DMV for 3 years, ORS 806.075; and

(b) install an Ignition Interlock Device (IID) for 1 year for a first conviction; 2 years for second, ORS 813.602(1); 5 years for third or subsequent, ORS 813.602(2). Continue reading

Lifetime License Revocation — Petition for Reinstatement after 10 years

January 1, 2004, marked the beginning of Oregon’s experiment with “lifetime license revocation” for a third DUII conviction. Some people are mistakenly told that it’s a “10-year suspension.” It’s not, it’s a lifetime revocation — with a possibility of petitioning for your license back after 10 years. January 1, 2014, is long past — meaning we’ve now helped a fair amount of folks get their driver license back! Continue reading