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OREGON DUII GUIDE



David N Lesh
Oregon DUII Attorney
Oregon Super Lawyer 2018 and 2019

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What happens at my first DUII court appearance?

In Oregon, the first court appearance is referred to as an "arraignment" or "initial appearance."  Usually this appearance is quite short.  The purpose of the arraignment is to inform the defendant of the charges(s) and of certain rights; to determine if the defendant needs a court appointed attorney; to determine the defendant's true name; and to set another court date.

Generally, a defendant must personally appear for all court dates including arraignments.  However, on misdemeanor charges, if a defendant hires an attorney before the first court appearance, sometimes the attorney may appear without the personal appearance of the defendant.  On felony matters, the defendant is always required to personally appear for the arraignment.

On DUII charges, a defendant will be ordered to be "booked" (mugshot and fingerprint) if that wasn't done on the night of the arrest.

 


 

 

      ORS 135.010 Time and place. When the accusatory instrument has been filed, and if the defendant has been arrested, or as soon thereafter as the defendant may be arrested, the defendant shall be arraigned thereon as provided in ORS 135.030 before the court in which it is found. Except for good cause shown or at the request of the defendant, if the defendant is in custody, the arraignment shall be held during the first 36 hours of custody, excluding holidays, Saturdays and Sundays. In all other cases, except as provided for in ORS 133.060, the arraignment shall be held within 96 hours after the arrest. [Amended by 1973 c.836 §130; 1983 c.344 §1; 1983 c.661 §12]

 

      ORS 135.020 Scope of proceedings. The arraignment shall be made by the court, or by the clerk or the district attorney under its direction, as provided in ORS 135.030. The arraignment consists of reading the accusatory instrument to the defendant, causing delivery to the defendant of a copy thereof and indorsements thereon, including the list of witnesses indorsed on it or appended thereto if the accusatory instrument is an indictment, asking the defendant how the defendant pleads to the charge. [Amended by 1973 c.836 §131; 1983 c.344 §2]

 

      ORS 135.030 When presence of defendant is required; appearance by counsel. (1) When the accusatory instrument charges a crime punishable as a felony, the defendant shall appear in person at the arraignment.

      (2) When the accusatory instrument charges a crime punishable as a misdemeanor, the defendant may appear in person or by counsel.

      (3) The court may require a defendant to appear at the arraignment by simultaneous electronic transmission as provided in ORS 131.045 without the agreement of the state or defendant if the type of simultaneous electronic transmission available allows the defendant to observe the court and the court to observe the defendant. [Formerly 135.110; 1983 c.344 §3; 2005 c.566 §5]

 

      ORS 135.035 Bringing in defendant not yet arrested or held to answer. When an accusatory instrument is filed in court, if the defendant has not been arrested and held to answer the charge, unless the defendant voluntarily appears for arraignment, the court shall issue a warrant of arrest as provided in ORS 133.110. [Formerly 135.140]

 

      ORS 135.040 Right to counsel. If the defendant appears for arraignment without counsel, the defendant shall be informed by the court that it is the right of the defendant to have counsel before being arraigned and shall be asked if the defendant desires the aid of counsel. [Formerly 135.310]

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      ORS 135.045 Court appointment of counsel; waiver of counsel; appointment of legal advisor. (1)(a) If the defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented by counsel.

      (b) If the defendant does wish to be represented by counsel, the court, in accordance with ORS 135.050, shall appoint counsel to represent the defendant.

      (c) If the defendant wishes to waive counsel, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

      (d) If the court accepts a defendant’s waiver of counsel, the court may allow an attorney to serve as the defendant’s legal advisor and may, in accordance with ORS 135.050, appoint an attorney as the defendant’s legal advisor.

      (2) Appointment of counsel, including a legal advisor, under this section is subject to ORS 135.050, 135.055 and 151.485 to 151.497. [Formerly 135.320; 1987 c.803 §13; 1989 c.171 §16; 1989 c.1053 §1a; 1991 c.790 §11; 2001 c.472 §1; 2001 c.962 §24]

 

      ORS 135.050 Eligibility for court-appointed counsel; financial statement; termination; civil liability. (1) Suitable counsel for a defendant shall be appointed by a municipal, county or justice court if:

      (a) The defendant is before a court on a matter described in subsection (5) of this section;

      (b) The defendant requests aid of counsel;

      (c) The defendant provides to the court a written and verified financial statement; and

      (d) It appears to the court that the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family.

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      ORS 135.060 Informing defendant as to use of name in accusatory instrument; effect of acknowledging true name at arraignment. (1) When the defendant is arraigned, the defendant shall be informed that:

      (a) If the name by which the defendant is charged in the accusatory instrument is not the true name of the defendant the defendant must then declare the true name; and

      (b) If the defendant does not declare the true name as required by paragraph (a) of this subsection, the defendant is ineligible for any form of release other than a security release under ORS 135.265.

      (2) The defendant or the attorney for the defendant may acknowledge the true name of the defendant at arraignment and the acknowledgment may not be used against the defendant at trial on the underlying charge or any other criminal charge or fugitive complaint except that:

      (a) The use of different names can be used in determining the defendant’s release status if the defendant has used different names in different proceedings; and

      (b) A defendant who intentionally falsifies the defendant’s name under this section or ORS 135.065 while under oath or affirmation is subject to prosecution under ORS 162.065.

      (3) As used in this section and ORS 135.065, “true name” means:

      (a) The name on the defendant’s certified copy of the record of live birth;

      (b) The defendant’s birth name; or

      (c) If the defendant’s name has been changed by court order or by operation of law, the name as changed by court order or operation of law. [Formerly 135.340; 2003 c.645 §4; 2013 c.366 §64]

 

      ORS 135.065 Name used in further proceedings; motion to strike false name. (1) If the defendant gives no other name, the court may proceed against the defendant by the name in the accusatory instrument. If the defendant is charged by indictment or information and alleges that another name is the true name of the defendant, the court shall direct an entry thereof to be made in its register, and the subsequent proceedings on the accusatory instrument may be had against the defendant by that name, referring also to the name by which the defendant is charged. Before proceeding against the defendant as provided in this subsection, the court shall attempt to determine the true name of the defendant. If a certified copy of the record of live birth for the defendant was never issued, the court shall ask the defendant, under oath or affirmation, to give the defendant’s true name. The court shall proceed under the name given unless the court is persuaded by a preponderance of the evidence that the name is not the defendant’s true name.

      (2) Upon motion of the defendant, all names, other than the true name of the defendant, shall be stricken from any accusatory instrument read or submitted to the jury.

      (3)(a) The following may file a motion requesting that a false name used by a defendant be stricken from an accusatory instrument, warrant of arrest or judgment and that the defendant’s true name, if known, be substituted:

      (A) The district attorney; or

      (B) A person whose name is the same as the false name used by the defendant.

      (b) Before the court may grant a motion filed under paragraph (a)(B) of this subsection, the court must provide the district attorney with notice of the motion and an opportunity to respond.

      (c) If the court grants a motion under this subsection, the court shall order that the false name be stricken from the accusatory instrument, warrant of arrest or judgment and that the defendant’s true name be substituted. In addition, the court shall order that any warrant of arrest of the defendant reflect that the defendant uses a name other than the defendant’s true name. [Formerly 135.350; 1985 c.540 §31; 2003 c.645 §5; 2013 c.366 §65]

 

      ORS 135.067 Effect of failure to provide true name of defendant on certain types of release. If a defendant, on or after August 12, 2003, fails to provide the defendant’s true name under ORS 135.060 or 135.065 and is on personal recognizance, conditional release or security release having deposited less than the full security amount set by the magistrate, the magistrate who released the defendant, upon a motion filed by the district attorney and supported by probable cause, shall cause the defendant to be brought before the magistrate. The magistrate shall conduct a hearing to establish release according to ORS 135.245. [2003 c.645 §7]

 

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      ORS 813.017 Arraignment; booking. When a person is arraigned on a charge of driving while under the influence of intoxicants in violation of ORS 813.010, a court shall ensure that the defendant submits to booking, if the person has not already been booked on that charge. [2015 c.145 §2]

 

 

 

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Websites, including this one, provide general Oregon DUI information and processes but do not provide legal advice or create a lawyer / client relationship.  General information cannot replace legal advice specific to your case, problem, or situation.  Consult qualified Oregon attorneys for advice about any specific problem or DUI charge that you have.  Oregon attorneys are governed by the Oregon Code of Professional Responsibility.   This website may be considered an advertisement for services under the Code.  Information contained in this website is believed to be accurate but is not warranted or guaranteed in any way.  ORS 813010.

 

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