Should I Start Alcohol Treatment Early?

If convicted of DUII, or if you enter DUII Diversion, you have a right to “participate in the selection of the treatment program,” and it’s not unusual for people to start alcohol treatment voluntarily before meeting with ADES. 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)). Although ADES is not required to agree to the provider you’ve selected, they should — in order to honor your rights listed below.

309-019-0115
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, those that are consistent with the Service Plan, 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 treated with dignity and respect;
(c) Participate in the development of a written Service Plan, receive services consistent with that plan and participate in periodic review and reassessment of service and support needs, assist in the development of the plan, and to receive a copy of the written Service Plan;
(d) Have all services explained, including expected outcomes and possible risks;
(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) Give informed consent in writing prior to the start of services, except in a medical emergency or as otherwise permitted by law. Minor children may give informed consent to services in the following circumstances:
(A) Under age 18 and lawfully married;
(B) Age 16 or older and legally emancipated by the court; or
(C) Age 14 or older for outpatient services only. For purposes of informed consent, outpatient service does not include service provided in residential programs or in day or partial hospitalization programs;
(g) Inspect their Service Record in accordance with ORS 179.505;
(h) Refuse participation in experimentation;
(i) Receive medication specific to the individual’s diagnosed clinical needs;
(j) Receive prior notice of transfer, unless the circumstances necessitating transfer pose a threat to health and safety;
(k) Be free from abuse or neglect and to report any incident of abuse or neglect without being subject to retaliation;
(l) Have religious freedom;
(m) Be free from seclusion and restraint;
(n) Be informed at the start of services, and periodically thereafter, of the rights guaranteed by this rule;
(o) 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;
(p) Have family and guardian involvement in service planning and delivery;
(q) Make a declaration for mental health treatment, when legally an adult;
(r) File grievances, including appealing decisions resulting from the grievance;
(s) Exercise all rights set forth in ORS 109.610 through 109.697 if the individual is a child, as defined by these rules;
(t) Exercise all rights set forth in ORS 426.385 if the individual is committed to the Authority; and
(u) Exercise all rights described in this rule without any form of reprisal or punishment.
(2) Notification of Rights: The provider 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 appropriate, to her or his guardian; and
(c) Individual rights must be posted in writing in a common area.
Stat. Auth.: ORS 161.390, 413.042, 430.256, 426.490 – 426.500, 428.205 – 428.270, 430.640 & 443.450
Stats. Implemented: ORS 109.675, 161.390 – 161.400, 179.505, 413.520 – 413.522, 426.380- 426.395, 426.490 – 426.500, 430.010, 430.205 – 430.210, 430.240 – 430.640, 430.850 – 430.955, 443.400 – 443.460, 443.991, 461.549, 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

Personnel
415-054-0420
Screening and Referral

(1) Each individual shall be assured the same civil and human rights as other persons. The ADES shall provide services in a manner that protects individual privacy and dignity.
(2) The ADES must provide the rights to the individual in written form or in a requested primary language or other alternative format, explain the rights and respond to the individual’s related questions.
(3) The ADES must place in the individual record the individual’s signed acknowledgement that the individual received these rights.
(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;

(b) Have the role of the court, treatment program and ADES monitoring process explained where the DUII system is concerned;
(c) Confidentiality and the right to consent to disclosure in accordance with 42 CFR Part 2.
(d) Give informed consent in writing prior to the start of services, except as otherwise permitted by law;
(e) Pursuant to ORS 179.505, inspect all parts of their individual record which originated from the ADES within five working days of the request. The individual must obtain copies of documents which originated from other sources from the original source. The individual may be responsible for the cost of duplication.
(f) Receive prior notice of service conclusion or transfer, unless the circumstances necessitating service conclusion or transfer pose a threat to health and safety;
(g) Be free from harassment, abuse or neglect and to report any incident of harassment, abuse or neglect without being subject to retaliation;
(h) Have religious freedom;
(i) Be informed of the policies and procedures, service agreements and fees applicable to the services provided;
(j) Have a custodial parent, guardian or representative assist with understanding any information presented;
(k) Receive a copy of the ADES’s or demonstration project’s grievance process which shall include the Division and Disability Rights of Oregon telephone numbers. The individual shall:
(A) File a written grievance without any form of reprisal;
(B) Receive a written response to the grievance within 30 days and
(C) File an appeal with the Division if dissatisfied with the ADES’s response.
(l) Exercise all rights described in this rule without any form of reprisal or punishment
Stat. Auth.: ORS 409.410, 413.042
Stats. Implemented: ORS 409.410, 109.675, 179.505, 430.010, 430.205 – 430.210, 430.240 – 430.640, 430.850 – 430.955, 461.549, 743A.168, 813.010 – 813.055 & 813.200 – 813.270
Hist.: ADS 4-2010(Temp), f. & cert. ef. 9-20-10 thru 3-9-11; ADS 2-2011. f. 3-8-11, cert. ef. 3-9-11

Oregon ADES 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” organization, an acronym that stands for “Alcohol and Drug Evaluation Services.” The problem: some ADES 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 contact information for some counties is listed below. It’s always a good idea to double-check on ADES contact information with ADES personnel, as the offices seem to frequently move or change hands.

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

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

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

Hood River County ADES
Julio C. Viamonte, ADES
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
George Baskerville, ADES
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
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
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]

Deschutes County ADES
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

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.

Oregon DUII Diversion — What Do I Have to Do?

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 post-treatment (Communion, Passover, etc.). I say “post-treatment” because there’s a requirement of demonstrated abstinence during treatment that seems to trump the statute’s acknowledgement of religious freedom. Using alcoholic mouthwash, tinctures, or hand sanitizer is not a religious rite — don’t do it 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 cannot 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, 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, commonly called “ADES” (Alcohol and Drug Evaluation Services). You don’t have to wait for the ADES evaluation to start treatment. The law says you get to “participate” with ADES in the process to find a treatment provider. If you show up for your evaluation and already have a treatment provider, ADES can “participate” to make sure it’s a good fit, but I’ve never had ADES 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 ADES and your treatment provider), the evaluator relies on: (1) your BAC; (2) the police reports; and (3) the interview with you. You’ll be asked if you think you have an alcohol problem. Be aware that some ADES subscribe to the MADD view that a DUII arrest comes after 80 instances of driving under the influence. There’s an ancient saying, “Know before whom you stand.” I’d rather have you know who you’ll be talking to in the Diversion process than finding out later. For an idea of the information evaluators are fed, see the MADD DUII statistics page here: MADD statistics

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 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 he or she 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.

Should I Tell My Insurance Company About My DUII?

No one affirmatively notifies your insurance company of your DUII arrest — unless there was a wreck of some sort. If there was a wreck, you should promptly notify your insurer so they start working to pay whoever got their property damaged or was hurt.

But in non-wreck DUII cases, it is in your financial interest (keeping your premiums low) to not affirmatively notify your insurance company. You have no obligation to do so. On the other hand, you also cannot lie — an affirmative lie could nullify your coverage (fraud). Therefore, my advice in this situation is: don’t change your policy. Don’t buy a new car, don’t add a new driver, don’t establish a new primary residence. Those things would all trigger you having contact with your insurance company. They would then set a new rate for you — based on the new car’s value, or the new driver’s driving record, or the new address (address is used in setting rates because some neighborhoods engender more claims than others / are more dangerous than others). Most rate-setting would include a review of your current driving record. Insurance companies generally use a 3-year look-back policy, so if you can make three years from the arrest without the insurance company finding out about your DUII charge, then you should keep your rates as they are. If you are in a situation where you are asked a direct question by your insurance company about the DUII, you must be honest. That is because their obligation to indemnify (pay for claims) is tempered by your duty of cooperation (honesty).

The above is general advice. You should review your policy terms — maybe you have an insurance policy that requires you to notify your insurer of a DUII arrest. I’ve never seen one. However, I have seen employment and professional policies that either require or strongly suggest you notify your employer or your professional licensing board. For instance, as an attorney I would promptly notify the Oregon State Bar if I was arrested for DUII. With professional licensing boards, it seems to always be better to notify early. If things get sticky, or you’re unsure of how to proceed, it’s best to contact an attorney who specializes in this area.

To sum up: if you get a DUII, you don’t have to immediately advertise that fact to your insurance company. If anyone was hurt or if property was damaged, you should open a claim with insurance promptly. And finally, if you occasionally drink and drive (it’s legal, see my blog post here: https://oberlaw.com/uncategorized/not-illegal-to-drink-drive-court-surprised/) you should have policy limits well above the minimum $25,000/$50,000 limits. Hit one Tri-Met or utility box, and you’ll eat that up immediately — and you’ll be personally on the hook for the remainder. There’s not one DUII lawyer I know who is not insured at the $100,000/$300,000 level, often with a $1,000,000 umbrella policy. It is pretty cheap to increase coverage — and much easier than sitting in a debtor’s prison for failure to pay restitution.

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