Should I Start Alcohol Treatment Early?

If convicted of DUII, or if you enter DUII Diversion, you have a right to attend a DUII treatment program “of [your] choice and [to] be free from undue influence or coercion when choosing a provider,” and it’s not unusual for people to start alcohol treatment voluntarily before meeting with ADES / ADSS. It’s admirable to do so, it serves public safety goals, and it demonstrates early recognition of an alcohol problem (a consideration for the court in whether to allow DUII Diversion, ORS 813.220(2)). ADES / ADSS in almost all circumstances should agree to the provider you’ve selected — in order to honor your rights listed below.

415-054-0481
Individual Rights

(1) In addition to all applicable statutory and constitutional rights, every individual receiving services has the right to:

(a) Choose from available services and supports that are culturally competent, provided in the most integrated setting in the community and under conditions that are least restrictive to the individual’s liberty, that are least intrusive to the individual, and that provide for the greatest degree of independence;

(b) Be referred to a Division approved DUII services provider of the individual’s choice and be free from undue influence or coercion when choosing a provider.

(c) Have the role of the court, DUII services provider, and ADSS monitoring process explained where the DUII system is concerned;

(d) Be treated with dignity and respect;

(e) Confidentiality and the right to consent to disclosure in accordance with ORS 107.154, 179.505, 179.507, 192.515, 192.507, 42 CFR Part 2 and 45 CFR Part 205.50;

(f) Inspect their service record in accordance with ORS 179.505;

(g) Refuse participation in experimentation;

(h) Receive prior notice of transfer, unless the circumstances necessitating transfer pose a threat to health and safety;

(i) Be free from abuse or neglect and to report any incident of abuse or neglect without being subject to retaliation;

(j) Have religious freedom;

(k) Be free from seclusion and restraint;

(L) Be informed at the start of services of the rights guaranteed by this rule;

(m) Be informed of the policies and procedures, service agreements and fees applicable to the services provided and to have a custodial parent, guardian, or representative assist with understanding any information presented;

(n) Have family and guardian involvement in service planning and delivery;

(o) File grievances, including appealing decisions resulting from the grievance;

(p) Exercise all rights set forth in ORS 109.610 through 109.697 if the individual is a child, as defined by these rules;

(q) Exercise all rights set forth in ORS 426.385 if the individual is committed to the Authority; and

(r) Exercise all rights described in this rule without any form of reprisal or punishment.

(2) The ADSS must give to the individual and, if appropriate, the guardian a document that describes the applicable individual’s rights as follows:

(a) Information given to the individual must be in written form or, upon request, in an alternative format or language appropriate to the individual’s need;

(b) The rights and how to exercise them must be explained to the individual and if applicable the guardian; and

(c) Individual rights must be posted in writing in a common area.

Statutory/Other Authority: 413.042 & 430.256
Statutes/Other Implemented: 430.256, 430.205-430.210, 430.254-430.640, 430.850-430.955, 461.549 & 743A.168
History:
ADS 4-2017, adopt filed 12/28/2017, effective 01/01/2018

 

415-054-0490
Referrals

(1) After completion of a screening interview, the ADSS shall initiate a referral to the Division approved DUII services provider of the individual’s choice using forms and procedures designated by the Division.

(2) The ADSS shall provide the individual with a list of all Division approved DUII services providers:

(a) Within the geographic area preferred by the individual; and

(b) In any other geographic area capable of responding to a specific need including but not limited to:

(A) Ability to pay or seek reimbursement through insurance;

(B) Primary language;

(C) Culturally-specific services; or

(D) Hours of operation.

(3) The individual record shall include documentation of which Division approved DUII services providers were offered for referral that has been signed and dated by the individual.

(4) The ADSS may not deny a referral to any Division approved DUII services provider except in cases where the referral would constitute an imminent health or safety risk to the individual. Denials shall be clearly documented in the individual record and include the reason for the denial including the specific health or safety risk posed.

(5) Within three calendar days of a denial being made, the ADSS shall report to the Division using Division approved forms and procedures.

(6) Within five calendar days of the screening, the ADSS shall forward a copy of the Division approved referral form and completed screening instrument to:

(a) The selected DUII services provider; and

(b) The individual.

(7) When the individual is a resident of a state other than Oregon, the ADSS may refer the individual to a program licensed by and located in the individual’s state of residency.

(8) Referrals to out-of-state substance use disorder service providers shall also include a copy of applicable Oregon Administrative Rules for issuance of a DUII Treatment Completion Certificate.

Statutory/Other Authority: ORS 430.256 & 413.042
Statutes/Other Implemented: ORS 430.256
History:
ADS 4-2017, amend filed 12/28/2017, effective 01/01/2018
ADS 2-2011, f. 3-8-11, cert. ef. 3-9-11
ADS 4-2010(Temp), f. & cert. ef. 9-20-10 thru 3-9-11

 

415-054-0485
Screening

(1) The ADSS shall perform a screening interview using documents and procedures designated by the Division for individuals under a DUII Diversion Agreement or convicted of a DUII within the preceding 15 years to determine whether to recommend an individual to a DUII education program or a DUII rehabilitation program.

(2) The ADSS must utilize a screening procedure that at a minimum shall ensure the provision and documentation of the following:

(a) Individuals must be considered for entry without regard to race, ethnicity, gender, gender identity, gender expression, sexual orientation, religion, creed, national origin, age (except when program eligibility is restricted to children, adults, or older adults), familial status, marital status, source of income, and disability;

(b) Individuals must receive services in the most timely manner feasible consistent with the presenting circumstances;

(c) Development and maintenance of adequate records and other documentation for each individual served that demonstrates the specific services for which payment has been requested, including documentation of a suicide risk assessment and appropriate referral;

(d) An authorization for the release of information obtained for any confidential information concerning the individual being considered for or receiving services in accordance with ORS 179.505, Federal Confidentiality Regulations (42 CFR, Part 2), and HIPAA; and

(e) Reasonable effort is made to attain appropriate collateral information including but not limited to the individual’s DUII arrest record.

(3) At the time of screening, the program must offer to the individual and guardian, if applicable, written program orientation information. The information must be written or, upon request, in an alternative format or language appropriate to the individual’s need and must include:

(a) A description of individual rights;

(b) Policy concerning grievances and appeals consistent with these rules to include an example grievance form; and

(c) Notice of privacy practices.

(4) Screening interviews shall be conducted in a face-to-face interview unless:

(a) The individual provides documentation from a health care professional indicating that a face-to-face interview would jeopardize their health or safety;

(b) The individual is a resident of another state or county and lives more than 75 miles from the ADSS service site;

(c) There is inclement weather or other unsafe road conditions; or

(d) Approved by the Division in writing prior to the screening interview.

(5) The ADSS shall clearly document the reason for the absence of a face-to-face interview in the individual record.

(6) Individuals who exhibit risk factors for a substance use disorder as indicated in the Division approved screening tool shall be referred to DUII Rehabilitation Services.

(7) Individuals who do not exhibit risk factors for a substance use disorder as indicated in the Division approved screening tool shall be referred to DUII Education Services.

Statutory/Other Authority: 413.042 & 430.256
Statutes/Other Implemented: 430.256
History:
ADS 4-2017, adopt filed 12/28/2017, effective 01/01/2018

 

415-054-0500
Transfers

(1) An individual may request a transfer to a different Division approved DUII services provider by submitting a request in writing to the ADSS.

(2) The ADSS shall initiate a referral to the requested Division approved DUII services provider as described in OAR 415-054-0490(3) within five calendar days from the receipt of the individual’s written request.

(3) The ADSS may not deny a transfer request to any Division approved DUII services provider except in cases where the referral would constitute an imminent health or safety risk to the individual. Denials shall be clearly documented in the individual record and include the reason for the denial including the specific health or safety risk posed.

(4) Within three calendar days of a denial being made, the ADSS shall report to the Division using Division approved forms and procedures.

Statutory/Other Authority: ORS 430.256 & 413.042
Statutes/Other Implemented: ORS 430.256
History:
ADS 4-2017, amend filed 12/28/2017, effective 01/01/2018
ADS 2-2011, f. 3-8-11, cert. ef. 3-9-11
ADS 4-2010(Temp), f. & cert. ef. 9-20-10 thru 3-9-11

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 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.

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