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The Oregon DUII Guide |
DAVID LESH
"Let me help you with your Oregon DUI arrest. Call me right away for a no-cost consultation."
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(corner of NW 19th and Glisan) Portland, Oregon 97209
I've spent almost ten years making oregonduii.com not just the most comprehensive DUII site in the State of Oregon but the most comprehensive DUI / DWI site in the entire country. I hope you find this information helpful. DAVID LESH
What my clients are saying. A small sample of actual, unsolicited cards and notes from former criminal defense clients.
"I wanted to express my thanks to you again for your legal assistance and support over the past year. While I know this is part of your job, I am still very grateful for your help. Thank you again." T.H.
"Thank you for being such a nice and effective attorney. This was a very scary time for me and you made it almost painless. If I know of someone who needs your expertise in the future, I will highly recommend your name." J.G.
"Thank you very much. Wanted you to know we really appreciate all your help in our recent legal matters" B.R. and N.R.
"I cannot thank you enough for your outstanding representation and paragon performance in the courtroom on Friday. It was a pleasure to have someone as adept as you to argue for the reduced sentence with the more lenient but better societal outcome in terms of service to the community that this provides . . . Thanks a million." J.
"The world I have become used to is full of people obsessed with themselves. I have started a journey down a path that leads to a new way of life, and I have been inspired by your kindness. Thank you so much." B.F.
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I just got arrested for an Oregon DUII charge. What happens now?
ISSUE ONE: Your Implied Consent Suspension: The most pressing matter may be requesting an appeal / hearing of your implied consent license suspension. Your license was most likely suspended for anywhere from 90 days to 3 years for failing a breath test or refusing a breath, blood, or urine test. [If you were admitted to the hospital and took and failed a blood test, you may be notified about an implied consent suspension later through the mail.] The implied consent license suspension typically begins on the 30th day following your arrest.
If you would like to challenge this suspension, the DMV Hearings Case Management Unit must receive your request for a hearing no later than 5:00 p.m. on the 10th day following your arrest. If you represent yourself on this issue, make sure that you fax the hearing request or request a hearing online; do not mail your request as it may arrive late. If you would like an in-person hearing be sure to mention that in your hearing request. Otherwise, your hearing may be conducted by telephone.
Be sure to read the fine print on the back of your implied consent combined report / temporary driving permit especially the paragraph labeled Hearing Requests:
Contact attorney David Lesh at 503.546.2928 for additional information.
Keep in mind that filing an appeal of this administrative license suspension does not mean that the suspension will be overturned. Rather, it means that you have a chance to overturn this suspension. The reason suspensions are most often overturned are: failure of police officers to appear at the hearing; incomplete / inaccurate paperwork; and failure of law enforcement to turn in paperwork to the DMV (or turning in documents late).
If you do not hire a lawyer to contest your implied consent suspension, you should request and attend the hearing yourself. In fact, only a small percentage of persons facing an implied consent suspension request a hearing. Remember, the Hearings Case Management Unit must receive the written request to contest your implied consent suspension within 10 days of the date of your DUII arrest.
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ISSUE TWO: Your Criminal Charge(s): You were also likely given a citation (ticket) or a release agreement ordering you to appear in court for the crime of driving under the influence of intoxicants "DUII" (and perhaps other charges such as reckless driving).
Under
Oregon law, a person commits the offense of driving while under the influence of
intoxicants (DUII) if the person drives a vehicle while the person:
You must attend your court appearance or a bench warrant will be issued for your arrest. In certain Oregon counties, if you hire an Oregon DUI attorney before your initial court appearance (arraignment), you may be able to absent yourself from this first appearance. Important: These two issues are completely separate and have no affect on one another. Visualize two separate boxes that do not overlap:
Will my Oregon driver license be suspended?
RELATED TO ISSUE ONE ABOVE: Your Oregon driver license (or your right to drive in Oregon if you do not have a valid Oregon license) may be suspended for failing―BAC .08% or greater (lower for CDL drivers and minors (persons under 21 years of age))―a breath or blood test or for refusing a breath, blood, or urine test. The length of your suspension depends on whether you failed or refused a test and whether you have a prior DUII event in the past five years. Refer to the table below:
If you act quickly (typically within 10 days of your arrest), you can request an appeal of the proposed suspension for failing or refusing the test. A hearing (commonly known as a "DMV hearing") will then be scheduled on your appeal request. Contact an Oregon DUI attorney for more information. If you had a valid Oregon driver license at the time of your breath test failure / refusal, you should have received a temporary permit that allows you to drive for the 29 days following your arrest On the 30th day after your arrest, the suspension begins (unless your appeal is successful). The DMV will not issue a driver license to a person whose driving record indicates a pending Implied Consent Law.
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RELATED TO ISSUE TWO ABOVE: If you are convicted of the DUII charge, your license will be suspended or revoked typically for one year (suspension), three years (suspension), or life (revocation). [Defendants who enter and successfully complete the diversion program are not convicted of DUII and do not face this additional suspension.] Refer to the table below for suspension / revocation lengths for DUII convictions:
To get your license reinstated following a first DUII conviction suspension you must install an ignition interlock device for one year; show proof of alcohol / drug treatment completion; file an SR-22 (and keep it on file for three years); and pay a $75 reinstatement fee.
A driver also faces a suspension / revocation if convicted of other traffic crimes such as reckless driving, vehicular assault, or hit and run. [A conviction for an infraction / violation (such as speeding) usually does not result in a license suspension.] Some positive news―to the extent that suspensions overlap, they generally run concurrently and not consecutively (except suspensions for refusing a urine test).
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Under certain circumstances, a driver can face a five year revocation of their license as a "habitual offender." This can occur if a driver (1) is convicted of three or more specified traffic crimes within a five year period; or (2) is convicted of a combination of 20 or more specified traffic infractions and / or traffic crimes in a five year period.
This habitual offender revocation does not happen in court. Rather, a driver receives notice from the DMV in the mail some time after notice of their conviction(s) have been forwarded to the DMV. Make sure that your DUI lawyer is made aware of any traffic convictions that you have received in the past five years (especially convictions for traffic crimes).
Also keep in mind that your license can be suspended for a variety of other reasons including failure to appear for court, failure to pay fines, failure to pay child support, etc.
What happens if I get caught driving while my license is suspended (DWS)?
A driving while suspended (DWS) charge can be either a violation, a misdemeanor, or a felony depending on the underlying reason for the license suspension. [Driving while revoked (DWR) is similar.] Someone who drives while suspended for failing or refusing a breath or blood test or for a misdemeanor DUI conviction commits the crime of misdemeanor driving while suspended.
If convicted of misdemeanor DWS, a defendant faces possible jail time, fines, and probation. There is a minimum $1,000 fine for someone caught driving when they are suspended as a result of a DUII conviction. Your car may be towed as well.
You will not be kicked out of diversion if you receive a driving while suspended ticket (unless you have alcohol in your system / possession OR don't have an ignition interlock device installed in your vehicle). However, driving while suspended will violate your probation if you are on probation for a DUII conviction. Driving while suspended arrests and convictions quickly get expensive.
The court does not suspend your license for an additional length of time if you are convicted of a violation or misdemeanor level driving while suspended (unless you have so many convictions that you become classified as a "habitual offender"). Note: You will face an additional revocation of one year if you are convicted of a felony driving while suspended (FDWS) or felony driving while revoked (FDWR).
I really need to drive. Will I be able to get a hardship / conditional / probationary permit?
A hardship permit may be available to you if your license is suspended and you had a valid Oregon Driver License at the time of your suspension.
Hardship permits generally are not available for license "revocations" including the lifetime revocation resulting from a third or greater DUII conviction. Hardship permits are also not available to persons with an out of state driver license.
Keep in mind that there is often a significant "black out" or waiting period before you can obtain a hardship permit. Refer to the table above. The State of Oregon no longer issues hardship or probationary CDL permits. See ORS 807.240(2). Hardship permits are only available for Class C licenses.
Under Oregon
law, hardship permits only allow driving for:
A hardship
permit will not be issued for more than 12 hours of driving on any one day,
except for transportation to and from an alcohol or drug treatment program.
A hardship permit issued to look for work will be restricted to 12 hours
per day, seven days per week. It will not
be issued for a period of more than 120 days at a time.
In order to obtain a hardship permit you must, among other things, obtain an SR-22 certificate of liability insurance which will likely have negative implications for your insurance rates or insurability. If you choose to enter the diversion program on your DUI charge, you probably will not have to file an SR-22 to get your license reinstated unless you apply for a hardship permit. However, if you are convicted of DUI you will have to file an SR-22 to reinstate your license anyway.
Talk to an experienced DUI attorney before you apply for a hardship permit. More questions about hardship permits? Call the DMV at 503.945.5037.
What is the difference between a DUII, DUI, DWI, OWI, OVI, OAWI, DWAI, OUI, OUIL, OMVI, DWUI etc.?
These terms are all acronyms that refer to the crime commonly known as "drunk driving." Different states have different names for the charge. For example in Arizona, California, and Washington, the charge is referred to driving under the influence or DUI. Ohio law refers to operating a vehicle under the influence or OVI. New York and Texas refer to driving while intoxicated or DWI. Massachusetts uses the term OUI.
In the State of Oregon, the exact charge is called "driving under the influence of intoxicants" or DUII.
Oregon does not have different types of DUII charges such as "Extreme DUII" or "driving while ability impaired." Even if your blood alcohol content (BAC) is quite high--such as .20% or greater--the charge is still the same. This website, and all the websites that have stolen copyrighted content from this website, use the terms DUI and DUII interchangeably.
Can I really get a DUII on a bicycle?
Yes. The criminal charge for DUII applies to anyone operating a "vehicle" in the State of Oregon (not just motor vehicles). Therefore, you can get a DUII on a bike, moped, motorized scooter, pocket bike, electric bicycle and even a Segway. The penalties for a DUII crime are the same whether you're in a motor vehicle or on a bike.
Oregon's implied consent law only applies to motor vehicles however.
Is an Oregon DUI a criminal offense?
Yes, a driving under the influence of an intoxicant charge is either a misdemeanor crime or a felony crime in the State of Oregon depending on your DUII history.
How do I know if I'm charged with a misdemeanor DUII or a felony DUII charge?
In Oregon, a DUII charge is a misdemeanor crime unless you have two or more prior DUII convictions in the past ten years. [Prior to December 2, 2010, you faced a felony DUII only if you had three or more felony convictions in the past ten years. Refer to Ballot Measure 73.]
Do I need an attorney for my first court appearance?
No. Some courts, such as Multnomah County, often have you appear a day or two after your arrest. You may go to your first court appearance by yourself and the court will always allow you time to find a lawyer. You will not harm your case, defenses, or options by going to your first appearance by yourself.
What type of penalties might I face if I am convicted of an Oregon DUII charge?
As noted above, a DUI in Oregon is usually a Class A misdemeanor crime. Upon conviction, a defendant can receive a variety of penalties including:
• probation (either formal probation, court aka bench probation, or enhanced bench probation); • jail time (ranging from two days to up to one year) for a misdemeanor DUI and lengthy jail (90 days or more) or prison time (13 to 60 months) for a felony DUI; • a license suspension / revocation of either one year, three years, or lifetime; • a fine generally ranging from $1,000 to $2,000; • additional fees and assessments of a few hundred dollars; • an alcohol / drug evaluation ($150) plus treatment (costs vary); • attendance at a victims impact treatment session (this session, commonly known as a "victims panel" costs $50 or less).
For a second DUII conviction, the court may also suspend your vehicle registration for up to 120 days and / or impound / immobilize your vehicle for up to one year. If you enter and successfully complete the DUII diversion program you will not face most of these penalties (see below). If you are convicted of a felony DUII, you will face at least 90 days in jail and you may go to prison for one to five years. Refer to the table below for more information.
I have a good driving record, is there anyway that I can avoid a DUII conviction and all the accompanying penalties? Aside from taking your DUI to trial and winning, you may be eligible for a program known as "diversion." The successful completion of the DUI diversion program will result in the dismissal of your DUI charge. Diversion is the only alternative to taking your DUI to trial or pleading guilty / no contest to your DUI charge. As noted above, Oregon does not use or allow deferred prosecutions, deferred judgments, deferrals, probation before judgment, or pleas to lesser included offenses on DUI charges. If you enter and successfully complete the DUI diversion program, you will avoid most of the mandatory penalties (jail time, fines, and the additional year long license suspension among other things) required for a DUI conviction. Diversion is typically the choice of someone facing a first time DUI (assuming no injury accident and no CDL). [Oregon does not use a deferred prosecution program as does Washington State.] How do I know if I am eligible for the Oregon DUI Diversion Program? You are likely eligible for diversion if you can meet all of the criteria listed below: (1) You have no charge of an offense of DUII or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending on the date you file the petition for a DUII diversion agreement; (2) You have not been convicted of an offense described in paragraph (1) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement; (3) You are not participating in a DUII diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement; (4) You did not participate in a diversion or rehabilitation program described in paragraph (3), other than a program entered into as a result of the charge for the present offense, within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement; (5) You have no charge of an offense of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement; (6) You have not been convicted of an offense described in paragraph (5) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement; (7) You did not hold a commercial driver license (CDL) at the time of the offense; (8) You were not operating a commercial motor vehicle at the time of the offense; and (9) The present DUII offense did not involve an accident resulting in: (a) Death of any person; or (b) Physical injury to any person other than yourself; (10) You have not been convicted of a felony DUII in Oregon or elsewhere. Occasionally, the DA's Office will object to a defendant's entry into diversion even though they meet the eligibility requirements set forth above. This sometimes happens if there was a child in the car when the defendant was arrested for DUII or if the defendant has a number of DUII convictions more than 15 years old. See ORS 813.220. Entry into diversion does not affect the implied consent license suspension that may have been imposed for a breath or blood test failure or refusal. A challenge to this suspension must be done in a separate and earlier proceeding (the DMV hearing discussed above). Likewise, entry into diversion does not affect other criminal charges (such as hit and run, reckless driving, or criminal mischief). Some jurisdictions, however, will dismiss violations such as speeding if you enter diversion. Contact an attorney David Lesh to learn more. What is required from a person opting to enter the DUI diversion program? In order to successfully complete diversion a defendant must do each of the following: • undergo a diagnostic assessment to determine whether or not you have an alcohol or drug problem (this is commonly referred to as an alcohol / drug evaluation); • complete whatever course of treatment is deemed necessary by the assessment (often 12 weeks or more); • attend a victims impact treatment session (victims panel class); • pay fees, assessments, and other costs to the court, to the evaluator, and to the treatment provider; • not consume intoxicants (alcohol / non-prescribed drugs) for one year; • install an ignition interlock device on your vehicles you will drive for during the one year diversion period. What will the Oregon DUI diversion program cost? There are no fines associated with diversion. However, there are a number of fees that are required for completion of the program. You can expect to pay:
• $490 in fees to the court; • $150 for the alcohol / drug evaluation (also known as the diagnostic assessment) and monitoring; • $50 or less for the victims impact treatment session (commonly referred to as the victims panel class); • Fees for each of the alcohol / drug treatment classes which will vary; • Fees for the urine tests (UA's); • Fees for the ignition interlock device if you intend to drive during your one year diversion period and possibly an additional fee for ignition interlock monitoring.
The treatment fees will vary depending on which state certified treatment provider you select and the length of treatment that you are required to complete. Note that the providers' fees vary widely so check with your health insurance for possible coverage and call around.
Is a DUII diversion the same as a conviction?
No. If you successfully complete the diversion program, the DUII charge is dismissed and no conviction results. However, if diversion is terminated for failing to comply with the program requirements a conviction is automatic. Your driving record will reflect the diversion.
How long does diversion last?
By law, the diversion program lasts exactly one year. On rare occasions persons may need a six month extension to complete the program requirements.
So will I be in treatment for a year?
Probably not. Often the treatment portion of diversion is completed in 12 weeks or so. ADES will refer you to either DUII treatment or DUII information (a shorter program). In either program you will be required to show at least 90 days of abstinence from alcohol and non-prescribed drugs. Urine tests (UA's) are used to ensure compliance with the abstinence requirement.
What is ADES?
ADES stands for "Alcohol and Drug Evaluation and Screening Specialists." ADES serves two primary functions. First, they conduct your evaluation / assessment and refer you to alcohol / drug treatment. Second, they monitor your compliance with the treatment requirements. Every court contracts with an ADES to handle these functions. By law, ADES charges $150 for the evaluation / assessment.
In some counties, ADES may be referred to as "Evaluation Services," "PADES," or simply as "the Evaluator." ADES serve the same function whether you're in diversion or if you're on probation following a DUII conviction. Will an Oregon DUI diversion go on "my record?" Yes. A DUI diversion will go on your Oregon driving (DMV) record as a diversion (not as a conviction). The entry is made as soon as you enter diversion. See the sample entry below.
Oregon does not use a point system so points are not assessed. In Oregon, DUI diversions and DUI convictions cannot be expunged or sealed. If I enter the diversion program will my (implied consent) suspension for failing or refusing a breath or blood test be rescinded, shortened, withdrawn, or cancelled? No. Entry into diversion has no affect on your implied consent license suspension (the suspension for failing or refusing the breath / blood / urine test). However, successful completion of diversion means that you will receive no additional one year license suspension for a DUII conviction. Remember that the implied consent suspension and the DUII charge are separate issues. Refer to the information at the top of the page. If I beat my DUII at trial (in my criminal case) will my implied consent suspension be rescinded; shortened, withdrawn or cancelled? No. Can I complete diversion even though I live in another state? Yes. Although it is more work to set up, you will be able to complete the diversion program even if you live in another state. You will be required to complete DUII treatment / information in your own state but the program must comply with Oregon's guidelines.
Can I go into a bar if I'm in the diversion program?
Yes. There is no prohibition on entering bars or taverns with the DUII diversion program. You cannot consume alcohol however. If you are convicted of a DUII, you generally are prohibited from entering bars and taverns. Will I be able to plea bargain / negotiate my Oregon DUI charge down to a lesser offense such as "negligent driving," "reckless driving," "reckless operation," "reckless driving involving alcohol," "wet reckless," "impaired driving," "driving while impaired," "deferred prosecution," or a "driving while ability impaired drugs?" No. While plea agreements of this type are common in some states, in Oregon this practice is prohibited by state law (see below). Other charges, such as a reckless driving ticket, are subject to plea negotiations, charge reduction or dismissal.
What about the Base Fine listed on my ticket?
You will not have to pay any fine including the base fine amount if you enter diversion. If you're convicted of DUII or other charges you will face fines for those offenses. However, those amounts will almost certainly be substantially less than the base fine listed.
I'm not eligible for diversion. What type of sentence can I expect if I am convicted of a first time DUI in Oregon? A person convicted of a DUII for the first time can expect to receive a sentence of a period of probation with conditions that include: Between 2 and 20 days jail; a $1,000 - $2,000 fine; approximately $300 in additional court fees and assessments; a one year ODL suspension; an alcohol / drug evaluation and treatment; and attendance at a Victims Panel class. How much jail time will I have to do if I am convicted of a DUII in Oregon? The amount of incarceration (jail or prison) received will depend on a number of factors, including (but not limited to) the following: • your prior driving record especially your DUII history; • your level of intoxication; • whether there was a collision involved; • whether there was an injury to another person in the collision; • which Oregon county or municipal court your case is in; • what judge you are sentenced by; • whether there was a passenger / child in your car; • whether the judge feels you have accepted responsibility for your actions.
Remember, you will not go to jail on for a DUII charge if you enter and successfully complete the diversion program. I really don't want to go to jail. Is there anyway to avoid jail time? Maybe. Different jurisdictions offer some alternatives to incarceration. These may include community service, work release, work crew, home confinement aka electronic monitoring. Often, jail is the only option. Talk to your Oregon DUII lawyer about what may be available to you. In this attorney's opinion, a short jail sentence is nearly always preferable to a lengthy period of community service. For a first DUII conviction in Multnomah County you may be eligible for an "expedicted DUII plea" which allows you to avoid jail time altogether if you complete a series of steps in the first 60 days after a guilty plea. If you elect this option, 80 hours of community service is substituted for your jail time. For a first DUII conviction in Washington County the court will usually sentence you to a short jail term. Once you're taken into custody, the jail may offer your a "work in lieu" of jail program. This is an attractive program. In Beaverton municipal court, the court may authorize a work in lieu program at the time of sentencing. For a first DUII conviction in Clackamas County the court nearly always sentences you to a short jail term which you must serve in full. I am licensed to drive in a state other than Oregon and I was cited for a DUII in Oregon. Will my driver license be suspended? Oregon only has the authority to suspend your right to drive in the State of Oregon. However, Oregon and 44 other states and the District of Columbia have adopted an agreement known as the "Driver License Compact." Oregon will report an Oregon DUII conviction to the home state of the driver (assuming the home state has also adopted the Compact). Your home state will then generally take action to suspend or revoke your license. This also works in reverse. If you are an Oregon licensed driver and you are convicted of a DUI / DWI charge in another state, Oregon will likely suspend your license if it learns of the conviction. See the statute below:
Even if Oregon does not report your suspension (say because you entered diversion), your home state may still learn of an implied consent license suspension through the National Driver Register (sometimes referred to as the National Driver Registry). The National Driver Register (the "Register") serves as a central repository of information on individuals whose privilege to drive has been revoked or suspended or who have been convicted of serious traffic offenses. The records maintained in the Register consist of identification information including your name, date of birth, gender, driver license number, and the reporting state. The substantive information—the reason for the suspension or conviction and associated dates—resides in the reporting state. State motor vehicle departments can query the Register to determine if an individual's license or privilege has been withdrawn by any other state. All 50 states and the District of Columbia participate in the Register. You can request your record from the Register here. Will I have to install an ignition interlock device on my car? Probably. An ignition interlock device (IID) is a computerized breath analyzer that connects into an automobile ignition system. Prior to starting a vehicle equipped with an IID, a driver must provide a breath sample by blowing into the IID. The IID prevents the vehicle from starting if the alcohol content in the driver´s breath sample exceeds a certain limit. State law now requires persons in the DUII diversion program to install an ignition interlock device during any part of the one year diversion period that the person has driving privileges. See HB 3075 (2011). Additionally. a person convicted of an Oregon DUII must install an IID in order to: • receive a hardship permit during the suspension period for the DUII conviction; and also to • reinstate your ODL after the DUI conviction suspension period ends for a period of one year (for a first DUI conviction) or two years (for a second or subsequent DUI conviction) following the end of the conviction based suspension. See OAR 735-070-0080 for more information. For installation locations for an IID, contact the Oregon Department of Motor Vehicles at 503.945.5400 or refer to the link on the right of this page. How do I go about getting an ignition interlock device installed in my car? Contact one of the IID installers in your area to arrange for installation. You may also contact the DMV Ignition Interlock Division at 503.945.5400 for answers to your IID questions. An IID will run you about $70 per month. How many "points" will go on my license if I get a DUII?
Oregon does not use a point system. Both a DUII conviction and a DUII diversion will go on your driving record, but points are not assessed.
What happens if I was on probation when I got arrested for an Oregon DUII?
Committing a new offense while you're on probation for a previous crime creates two problems. First, you face the new DUII charge. Second, you face a probation violation hearing for failing to "obey all laws" (a standard condition of probation). The most serious scenario is when you receive a new Oregon DUII offense when you're already on probation for a previous DUII. When this happens, its in your best interest to speak to an Oregon DUII lawyer right away.
Since my arrest I've received letters from various Oregon attorneys / treatment providers IID installers. How did these people find out that I was arrested?
In Oregon, adult arrest and suspension records are "public records" and are subject to disclosure upon written request. Some Oregon lawyers and other service providers make public record requests from government agencies in order to obtain a list of persons arrested for a DUII offense. After receiving the arrest / suspension information, the firm sends a letter outlining their services. Keep in mind that even though these records are "public," individual records are usually not accessible unless specifically requested.
After my arrest, my mug shot and name were placed on a website. Is this legal?
Unfortunately, yes. Arrest records including mug shots are public records. Any person paying a fee can request and receive this information and re-publish it. Many local governments also put this information on websites where individuals copy and republish it. Will I be able to vacate, seal or expunge my Oregon DUI or otherwise remove the offense from my record? Oregon law does not allow an individual to seal or expunge a DUI diversion or a DUI conviction. Simply put, most traffic offenses cannot be vacated, expunged or sealed under Oregon law. However . . . In 2009, the Oregon Legislative Assembly passed House Bill 2318. Under this law--which was effective January 1, 2010--DUI arrests (and other traffic crime arrests) may be expunged if the charge was dismissed (other than diversion-related dismissals) or if the prosecutor declined to prosecute (no-complainted) the case. However, DUI convictions and dismissals resulting from the successful completion of the diversion program still cannot be sealed or expunged. Example One: You were found not guilty of the DUII charge after a jury trial. You may expunge this DUII arrest right away (assuming you meet the other expungement eligibility requirements). Example Two: You were arrested for a DUII charge even though your breath test showed only a 0.06 percent. You went to court, and the case was called as a "no complaint." You may expunge this arrest after waiting one year. Example Three: You were arrested for a DUII charge and entered the diversion program. Your DUII was dismissed after one year following your successful completion of the diversion program. You cannot expunge this arrest. Example Four: You were arrested for a hit and run charge (failure to perform the duties of a driver) and your lawyer was able to obtain a dismissal of the charge through a "civil compromise." You may seal / expunge this arrest right away assuming you're otherwise eligible. What will an Oregon DUII charge do to my insurability? If your insurance company finds out about an entry into the diversion program or a DUII conviction one of two things are likely to happen. Either your insurer will raise your rates or you may be cancelled or non-renewed. Of course, it is possible that your insurance carrier may not find out about your DUII on their own. However, if you are convicted of a DUII or if you apply for a hardship permit you will need to file an SR-22. [This is an important consideration in deciding whether to apply for a hardship permit if you enter diversion on your DUII charge.] You can only get an SR-22 from your insurance company so they will necessarily learn of the DUII arrest / conviction when you request one. If your insurance company misses the diversion or conviction at the time it happens, it generally has three years to cancel your policy or raise your rates because of the DUII. What is an SR-22? An SR-22 is a certificate from an Oregon licensed insurance company certifying that you have purchased liability insurance that meets the minimum required coverage limits. Oregon's minimum coverage limits are: $25,000 to cover bodily injury to or death of any one person in any one motor vehicle accident; and, $50,000 to cover two or more persons; and $10,000 to cover property damages. The SR-22 provides proof to the Oregon Department of Motor Vehicles (DMV) that you are insured. If you cancel your insurance or the insurance company cancels your policy before your suspension period is over, the company must notify DMV that the certificate is canceled. You will need to get a new SR-22 certificate on file with DMV within 30 days or your license will be suspended. If you are asked to prove “future financial responsibility” by having an SR-22 on file with DMV, a copy of your insurance binder or your insurance card is not considered acceptable proof. Also, your insurance must cover all vehicles both operated by you and registered in your name. You will generally need to file an SR-22 if you are convicted of an Oregon DUII or if you apply for a hardship permit. An SR-22 is also required for certain unsatisfied judgments; for driving uninsured convictions; and for uninsured accidents. Do I need to file an SR-22 if I enter the diversion program? If you enter the diversion program on your DUII charge and do not apply for a hardship permit on your implied consent suspension, then you should not need to file an SR-22. A hardship permit requires an SR-22 filing. I was involved in an accident with my DUII. Do I need to file an accident report? You will need to file an Oregon Traffic Accident and Insurance Report if you were involved in a collision and one of the following are also present:
If possible, file the report within 72 hours after the incident. What if I am facing other charges along with my Oregon DUI? Additional offenses generally fall into two categories: violations and crimes. Violations--such as careless driving, VBR, failing to obey a traffic control device--are punishable only by a fine (and rarely a short license suspension). Traffic crimes--such as reckless driving, hit and run, assault, and criminal mischief--are more serious because a conviction may result in jail time and nearly always result in a license suspension or revocation of some length. Criminal offenses are punishable by possible jail time, fines, and a mandatory driver license suspension. Some of the more common offenses which accompany DUII charges are outlined below.
Keep in mind that you cannot enter diversion on any criminal charges other than a DUII charge. Contact an experienced Oregon DUI lawyer to learn more. What type of penalties might I face if I am convicted of reckless driving in Oregon? Charges such as reckless driving, misdemeanor failure to perform the duties of a driver (hit and run property damage), recklessly endangering, and criminal mischief in the second degree have fewer required penalties than the crime of DUII. When convicted of one of these charges, you can expect a sentence of probation, a fine, an order of restitution if applicable, and at least a 90 day license suspension. Jail time is possible though not required. The amount of jail time, if any, will depend primarily on the seriousness of the incident and the defendant's driving record. Are there any special concerns if I have a commercial driver license (CDL) and got arrested for DUII?
Unfortunately, yes. In 2005,
the Oregon Legislature made a number of changes effecting CDL holders.
Among other things, a person may enter
Oregon's DUI diversion program only if the driver
did not hold a commercial driver license on the date of the commission
of the offense. 'Holds a commercial
driver license' means a person has a commercial driver license that is:
(1) valid; (2) expired less than one year; or (3)
suspended, but not
canceled or revoked.
No. No CDL holder may enter the DUII diversion program regardless of whether or not they were driving commercially at the time of the arrest.
I have a commercial driver license. How long will my CDL be suspended for if I am convicted of a DUII?
For a first DUII conviction, your commercial license will generally be suspended for one year (the same length as your non-commercial Class C license). This one year suspension applies regardless of whether you were driving a commercial vehicle at the time of your DUII arrest.
However, if you were operating a commercial vehicle and transporting hazardous materials while under the influence, your CDL will be suspended for three years for a first DUII conviction.
For a second DUII conviction you lose your commercial license for life. You have the right to reapply for a CDL after 10 years.
Keep in mind that "a person's commercial motor vehicle driving privileges may be suspended without affecting the person's privileges to operate vehicles which may be operated with a Class C driver license." OAR 735-070-0035(1).
Refer to 49 CFR § 383.51(b) for the federal regulations setting forth CDL disqualifications for major traffic offenses. These regulations apply to CDL drivers in all 50 states.
How long will my CDL be suspended for if I failed or refused a breath / blood / urine test?
If you're not driving a commercial vehicle, your CDL will be suspended for same length as Class C license holders. Those suspensions lengths are outlined in the table near the top of the page. If you were driving a commercial vehicle, you face a suspension as outlined in the table below:
Are there special concerns for licensed pilots who get an Oregon DUII?
Yes. The FAA has special reporting requirements for certain Motor Vehicle Actions including DUI convictions and certain administrative (implied consent) driver license suspensions. Learn more here. The FAA will not necessarily take action against your pilot's license for receiving a DUII, but it is vital that you report the incident if required.
Are there any concerns for mariners licensed by the United States Coast Guard who get an Oregon DUII?
Yes. An applicant for a Coast Guard credential must disclose all criminal convictions on their application form. In addition, the Regional Exam Center (REC) performs a National Driver Register check on applicants. Once a DUII conviction is identified, the REC evaluates the applicant's reported conviction and associated facts.
I have an OLCC servers permit. Will my DUII cause me to lose my permit?
Possibly. Service permits are issued by the Oregon Liquor Control Commission to employees who serve alcohol in restaurants, taverns, bars, lounges, clubs, and other businesses. Oregon law requires you to have a service permit if you work at a business with a liquor license that allows customers to drink on the premises and you mix, serve, or sell alcohol in any manner. Managers who supervise employees who mix, serve, or sell alcohol must also have a service permit. Consult the OLCC's website to determine if a DUII conviction will affect your permit. Generally, a first DUII will not.
Are there special concerns for Oregon health professionals who are arrested for a DUI or other criminal charges? Yes. Effective January 1, 2010, if you are a health professional that is (1) license by; or (2) certified by; or (3) registered with one of the following Boards:
Then you must self-report, to the appropriate board, either a misdemeanor or felony conviction within 10 days of the conviction or if you are arrested for a felony, you must report the arrest within 10 days of the arrest. See House Bill 2059 (2009). Most DUI arrests are misdemeanor offenses which are not subject to mandatory reporting. Successful completion of diversion results in a dismissal of the DUI charge which would also not require reporting. However, a DUI conviction or a conviction of reckless driving / hit and run or another crime must be reported within 10 days of the conviction / sentence. An arrest for a felony DUII or felony hit and run would require immediate reporting. Are there programs for health professionals that have an alcohol or other substance abuse problems? Oregon physicians may wish to consider contacting the Board of Medical Examiners’ Health Professionals Program (HPP) if they have a problem with alcohol. The mission of the HPP is to protect public health through maintenance of the health of licensees of the Oregon Board of Medical Examiners. HPP services include confidential consultation, intervention, assessment, referral, recovery monitoring, and relapse management. HPP will facilitate the intervention for individuals identified with possible substance use disorder, conduct an initial assessment and refer for a multi-disciplinary evaluation and/or treatment as recommended. Once a licensee diagnosed with a substance abuse disorder has completed a primary phase of treatment, an HPP agreement for continuing care monitoring is implemented. Standard monitoring lasts a minimum of five years and includes an individualized plan of therapeutic recovery activities as well as random urine toxicology screening. Evidence of recovery is obtained through behavioral observations, evidence of healthy choices, and active participation in recovery activities. Participants will be drug tested. Learn more about the HPP here. Oregon dentists may wish to consider contacting the Board of Dentistry Confidential Diversion Monitoring Program. Oregon nurses may wish to contact the Oregon Nurse Monitoring Program if they have a problem with chemical dependency. What will a DUII do to my ability to enter Canada? Having any type of drunk driving (DUII) conviction generally makes you inadmissible to Canada for at least 10 years. On rare occasions, a person may be deemed rehabilitated when less than 10 years has elapsed since the conviction. Usually, you must wait at least five years from the end of your DUII probation however. Refer to Canada's Citizen and Immigration website to learn more about entering Canada following an Oregon DUII conviction. If you believe that you will need to travel to Canada in the future and you're facing a first DUII conviction you probably should talk to your lawyer about attempting to receive a community service sentence (rather that 2 days / 48 hours jail). If you can avoid a sentence that includes incarceration, you may be allowed to enter Canada under a Temporary Residence Permit (TPR). Beginning in 2012, a foreign national (US citizen) with a single misdemeanor DUII conviction may be allowed to visit Canada under a TPR if you meet the following conditions:
Refer to Operational Bulletin 389. Keep in mind that if you successfully complete the Oregon diversion program you will not be convicted of a DUII offense. However, you should avoid attempting to enter Canada while you are in the diversion program as your case will show as "pending" until dismissal. Remember: diversion lasts one calendar year. I missed my court appearance. What do I do now? Failing to appear (FTA) for court is to be avoided. When you miss a court appearance, you could be charged with a separate crime known as "Failure to Appear in the Second Degree" or "Failure to Appear in the First Degree." At a minimum, the court will issue a warrant for your arrest (known as a bench warrant). Talk to your lawyer. If you are in Multnomah County, your lawyer may be able to scheduled a court appearance to recall your bench warrant. Often times, your only option is to turn yourself in at the jail on the outstanding warrant. A new court date will then be scheduled for your appearance. I have a warrant for my arrest for an old DUII charge in Oregon, and I live in another state. Will Oregon seek to extradite me back to Oregon? Oregon generally does not extradite persons from out of state for misdemeanor warrants. However, if you failed to appear for a felony DUII offense, Oregon very well will seek to bring you back if you're ever arrested in your home state. I am having trouble getting my license back after a DUII conviction some years back. Can a lawyer help me? Probably not. To reinstate your license contact the Oregon DMV and find out exactly why you are suspended. You may be suspended for any one of a number of reasons such as:
Once you know the exact reason(s) that you're suspended, you must take the steps to fix the problems. Generally speaking, a lawyer will not be able to relieve you from the DMV's requirements. Can I represent myself in court on my DUI and / or other charge(s)? Yes. You have a constitutional right to represent yourself on any criminal charge no matter how serious. Keep in mind that DUI defense is a complex area of the law as evidenced by the information above. If you cannot afford to hire your own counsel, you definitely should apply for court appointed counsel to represent you. You have no right to court appointed counsel on an appeal of your implied consent license suspension. If you would like to hire an Oregon DUI lawyer for your charge, consider contacting attorney David Lesh. There is no charge for the initial consultation. 503.546.2926 Representing Clients in Multnomah, Clackamas, Washington, Columbia, and Yamhill County Courts as well as Lake Oswego, Beaverton, and Troudale Municipal Courts. |
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