Oregon Speedy Trial Rights

Here’s how to get a dismissal based on Oregon’s speedy trial statute:

First, the government must set your misdemeanor trial “two years from the date of the filing of the charging instrument.” ORS 135.746(1)(a). The time we wait before the prosecutor files charges doesn’t count for speed trial. It can count for statute of limitations, see below.

Second, your lawyer must timely object to the setting of the trial past the two year mark. ORS 135.746(3). The lawyer has 7 days from the time the date is set to object. Id. 

Third, a judge must agree that the case should be dismissed. ORS 135.752 allows a court to permit a late trial if “the court finds on the record substantial and compelling reasons to allow the proceeding to continue.”

Separate from Oregon’s speedy trial statute are the constitutional rights to speedy trial.  For the constitutional protections to work you must demonstrate prejudice, and the court is generally unconcerned with stress and anxiety. “Anxiety and stress are inherent in any criminal prosecution. Most criminal prosecutions cause stress, discomfort and interference with a normal life.” State v. Fleetwood, 186 Or App 305 (2003) (internal quotation omitted); see also State v. Moylett, 123 Or App 600, 606 (1993) (defendant “was never incarcerated, and was not prejudiced in his ability to defend the case”). Prejudice is required, like destruction of evidence or the loss of a witness.

There is a separate protection for lengthy delays between the time a case is charged and a warrant is served. The courts will accept less delay there, and “generally expect that the police will execute warrants of this sort within a matter of weeks, not months.” State v. Davids, 339 Or 96, 101 n 4 (2005). This is not speedy trial but rather a statute of limitations protection, explained in State v. Barnes, 66 Or App 896 (1984):

“In order to decide whether the delay in executing the warrant in this case was reasonable and the statute of limitation tolled, we examine any circumstances that may explain the passage of two years and nine months between the issuance of the indictment and its execution.

The state argues that defendant ‘secreted’ herself within the state to prevent being served, and so the statute of limitations is tolled by ORS 131.145(2)(b). We find no merit in this claim. Defendant testified that she resided at 40 North Lombard Street, Portland, Oregon, from June 15, 1978, to the time of trial. The state concedes that it was aware of her address, and there is no indication of any attempt to serve defendant with the warrant before July 18, 1982.

In the alternative, the state argues that a registered letter sent by the District Attorney’s office to defendant at 40 North Lombard Street on November 1, 1979, tolls the statute of limitations. The letter, which was returned shortly thereafter to the sender marked “unclaimed,” advised defendant of the indictment and asked that she make the necessary arrangements to surrender herself.[2] A witness from the District Attorney’s office testified that a certified letter is sent to an accused in unlawfully obtaining assistance cases as a courtesy so that a defendant with small children may make appropriate arrangements. While we might approve the District Attorney’s considerate attitude, we decline to hold that sending a registered letter suggesting that a defendant surrender provides any excuse for failure to execute a warrant within a reasonable time. The letter was not effective service of process under ORCP 7 D, and defendant was under no legal duty to pick up the registered letter. The only inference reasonable from the mailing and return of the registered letter in November, 1979, was that defendant was not going to surrender herself as the letter requested, and so actual service was necessary. On June 7, 1982, the state mailed another registered letter to defendant, which was again returned unclaimed, and on July 18, 1982, the warrant was served by a police officer.

Viewing the state’s case in the best light, there remains a period of two years, seven months from November, 1979, until June, 1982, in which the state took no action to further the prosecution, and it offers no reason whatever for the delay. Defendant had no actual notice of the indictment for three years and four months after the alleged offense.

The statutory time limitations contained in ORS 131.125 are specifically designed to prevent this type of protracted, haphazard prosecution. The state failed to serve the warrant in this case and is not entitled to prevail because defendant did not respond to its request to surrender herself voluntarily. Under these circumstances, we find that the delay was unreasonable as a matter of law. The excuse for the delay was no excuse at all. We conclude that the state failed to “commence” the prosecution within the three-year period set out in ORS 131.125(2)(a). Defendant’s motion to dismiss the indictment should have been granted.

Reversed and remanded with instructions to allow defendant’s motion to dismiss the indictment.”

Oregon DMV Hearing COVID FAQs

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

DMV Hearings are generally being conducted by telephone during the pandemic. 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?

First, 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.

DUII Outpatient Treatment — Education or Rehabilitation? What About Prescription Drugs?

Clients sometimes worry about whether their evaluation will put them in “education” or “rehabilitation.” Oregon’s rules related to those two very similar types of treatment are established by the Oregon Health Authority (OHA) at OAR 309-019-0195:

“(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.

(9) DUII Service Providers shall use urinalysis testing for use of substances of abuse following procedures in OAR 309-019. 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 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.”

 

The exceptions for urine testing mentioned in ORS 813.200 are as follows:

      “(5) A person may use intoxicants during the diversion period if:

      (a) The person consumes sacramental wine given or provided as part of a religious rite or service;

      (b) The person has a valid prescription for a substance and the person takes the substance as directed; or

      (c) The person is using a nonprescription drug, as defined in ORS 689.005, in accordance with the directions for use that are printed on the label for that nonprescription drug.”

IID Negative Report or Test Violation for an Oregon DUII

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.

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.

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, as the offices seem to frequently move or change hands, here: https://www.oregon.gov/oha/HSD/AMH-DUII/Documents/ADSS-Directory.pdf

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 / Fax 503-648-7321

Clackamas County ADSS Beacon Hill
516 High Street, Suite 7
Oregon City, Oregon 97045
Phone 503-505-0367
Fax 971-925-4852

Email [email protected]
Website https://www.beaconhillrecovery.com/

Clackamas County ADSS Clarke’s Assessments, LLC
501 Pleasant Avenue, Suite 4E
Oregon City, OR 97045
Phone 503-974-9683
Fax 503-908-7509
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

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)).

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 in DUII Diversion — The Rules

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.

Oregon DMV Hearing FAQs

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

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.

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 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?

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?

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?

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?

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?

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 (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, 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.