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:
1. Pay the filing fee.
2. Attend VIP.
3. Successfully complete alcohol and drug evaluation and treatment.
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.