DUII Release Conditions — The New Prohibition

Many judges at DUII arraignments will say, “standard DUII release conditions.” That phrase traditionally means:

(1) “No Driving without a valid license and insurance,” and
(2) “No use of any intoxicant when operating a motor vehicle.”

A minority of judges have replaced item (2) with “No possession or use of any intoxicant.” The word “intoxicant” is problematic and worthy of its own post (what about prescription medications?), but here I’ll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII.

As the question implies, I believe Prohibition is not an appropriate condition in most cases. I generally start with Sexson v. Merten, 291 Or 441 (1981), a case that required — for a Prohibition condition to be imposed — “an alcohol problem, as would appear from the record” in the individual case. 291 Or at 450 (emphasis added). Here’s the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine whether a person has an alcohol problem or not. It is virtually always worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will adjust the condition after a discussion of Sexson and the exculpatory facts in your particular DUII case (for example: first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario). I suggest a less onerous condition similar to standard condition #2 above: “No use of alcohol when operating a motor vehicle.”

Finally, I should note that the release statutes underlying Sexson have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation — but I don’t believe those amendments affect the logic of Sexson: to impose a Prohibition condition, you’ve got to have a demonstrated alcohol problem based on the facts of the case or the defendant’s history. In other words, blanket Prohibition for all first-time DUII arrestees does not pass muster.