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Oregon DUII Attorney/Lawyer Michael G. Romano

Frequently Asked Questions
About DUII in Oregon

What is the difference between a DUII, DUI, DWI, DUID, and DUII-CS?

In Oregon, driving while impaired by drugs or alcohol is called "Driving Under the Influence of Intoxicants." People frequently shorten the phrase to DUII. DUI and DWI are variations of the same crime in other states. DUID and DUII-CS refer to "Driving Under the Influence of Drugs" and "Driving Under the Influence of Intoxicants: Controlled Substances." These titles refer to cases where someone is accused of "drugged driving" as opposed to "drunk driving."

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What is the first thing I should so if I am cited or arrested for DUII?

One of the most important things you can do is quickly contact an attorney familiar with DUII cases because there are significant decisions that need to be made early on in the case. For example, you only have ten (10) days after your arrest/citation to apply for a DMV Implied Consent hearing to prevent your license from being suspended.

You should also refrain from talking about facts of the case until you've had a chance to speak with an attorney. Be especially careful of following the advice of non-lawyers. You may have a friend, relative, or co-worker who wants to tell you how to proceed based on their own experiences, or what they've heard from other people. They may be very well-intentioned and just trying to help, but important legal matters are almost always fact-specific and just because someone you know handled their DUII in a certain manner, doesn't mean you should do the same. A DUII charge is a serious criminal charge, it is not at all in the same category as a speeding ticket.

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What are the penalties for DUII?

The penalties for DUII in Oregon vary depending on the court you are before. For a misdemeanor DUII, the maximum penalty is one year in jail, five years on probation, and a $6,250.00 fine. The minimum fine begins at $1,000.00. A person charged with felony DUII based on a history of prior DUII convictions is likely looking at approximately two years in prison and a lifetime revocation of his/her driver's license.

Other potential penalties include:

  • Electronic monitoring or house arrest
  • Restrictions of probation
  • Court costs
  • Court-ordered drug and alcohol treatment
  • Drug/alcohol testing
In addition to the potential penalties described above, a first-time conviction for DUII in Oregon carries a mandatory one-year driver's license suspension with a possibile eligiblity for a harship permit to allow travel to and from work, driving while on the job (or to seek employment), and driving to and from treatment. However, the driver will be required to install an Interlock Ignition Device (IID) for the entire year of the suspension plus the year following. This IID is a small breathalyzer that the driver is required to blow into each time they start the car and occassionally while actually driving. For subsequent convictions, the IID is required to be installed for two full years following the length of suspension (e.g. five years total if the driver has a three-year driver's license suspension).

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What is an "intoxilyzer"?

The intoxilyzer is a machine that is designed to estimate the blood-alcohol-content (BAC) of an individual by taking a sample of breath. The intoxilyzer test is frequently called the "breath test." Although intoxilyzer machines are useful, they are not fool-proof and are not always accurate. The Oregon State Police recently phased out the Intoxilyzer 5000 and the old machines have been replaced by the Intoxilyzer 8000.

Prior to requesting a breath sample, the arresting officer is required to read the test subject his/her implied consent rights. Refusal to provide a breath sample can be charged as an additional violation. As an alternative to the Intoxilizer breath test, persons arrested for DUII also have the right to a blood test to determine BAC.

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Isn't the legal standard for intoxication a .08 BAC?

Not necessarily. Although an individual in Oregon is presumed to be intoxicated and under the influence when their BAC is .08 or higher, someone with a lower BAC can be charged with DUII if the arresting/citing officer is of the opinion that the person is "adversely affected to a noticeable or perceptible degree" by the use of intoxicants. What this means in plain english can be quite scary: If an officer thinks you are negatively affected by even one alcoholic drink, the officer can arrest or cite you for DUII, and the District Attorney can prosecute you.

As mentioned below, some police agencies and District Attorneys will occasionally increase their prosecution of "low-blow" DUII cases to project an image to the public that they are tough on "drunk drivers." Note that the arresting officer may request a urine sample if the BAC of the test subject is under .08. Officers usually don't want to admit they may have made a mistake in arresting someone who was not impaired, so they often claim that the person they arrested must be under the influence of drugs. A person who refuses to provide a urine sample is treated as if they've refused to provide a breath sample, and they are subject to a DMV-imposed driver's license suspension. The urine sample from the test subject is sent to the Oregon State Police for testing for controlled substances (i.e. drugs).

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What are Field Sobriety Tests (FSTs)?

Field Sobriety Tests (FSTs) are a series of standardized tests designed to determine if someone is impaired by intoxicants. Typically three are given: The Horizontal Gaze Nystagmus (HGN) (an eye test), the Walk and Turn (WAT), and the One Legged Stand (OLS). The ability to perform these tests varies wildly from one person to the next, and your failure on one or even all of these tests does not mean that you are necessarily guilty of DUII. Many officers who want to keep up their stats for DUII arrests will rush through the instructions on these tests so you don't understand exactly what you are supposed to do. They will then record your questions or mistakes as a "failure" or "clue" indicating impairment. It should also be noted that many officers simply don't know how to properly administer the tests and record accurate observations. You have the right to refuse to perform the Field Sobriety Tests, but your refusal can be used against you later at trial.

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What is a Drug Recognition Evaluation (DRE)?

The DRE evaluation is a series of tests and observations conducted by a Drug Recognition Examiner (sometimes called a "Drug Recognition Expert") to determine whether someone is under the influence of and/or impaired by controlled substances, alcohol, or both. If you were given a DRE evaluation, the arresting/citing officer likely thought you were impaired by controlled substances. The DRE evaluation has now become a favorite of law enforcement to save bad DUII arrests. When a driver arrested for DUII blows a .05 BAC, for example, it's not uncommon for the arresting officer to call in a DRE for a second opinion. It's no big surprise that the DRE will come in and accuse the driver of being a drug addict who is under the influence of illegal drugs, even if the accused driver has never used an illegal drug in his or her life.

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Is my Oregon driver's license going to be suspended for DUII?

It depends on the facts of the case and your driving history. In general, you will have a DMV-imposed license suspension for failing or refusing an intoxilizer/urine/blood test, and possibly a court-imposed license suspension if you plead guilty to DUII or are convicted at trial. However, you may challenge the DMV-imposed suspension through a DMV administrative hearing, and you may of course challenge the DUII charge at trial. DMV-imposed license suspensions are very time-sensitive so if you are arrested or cited for DUII, and are interested in challenging the suspension, you should contact an attorney immediately. If you failed the breath test, you only have 10 days from the date of arrest to file your request for a DMV Implied Consent hearing.

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The arresting/citing officer told me my Oregon driver's license would be suspended, but the court says they haven't suspended my license. But the court has also told me I cannot drive. Is my license suspended or not?

It's important to realize that when you have a pending DUII, the court and the DMV are separate government entities. Through the Implied Consent laws, the DMV can essentially impose an administrative driver's license suspension before you ever get to court. If you were to then drive without a license, you could face an additional driver's license suspension (or revocation) and/or an additional criminal charge of Driving While Suspended. The court cannot suspend or revoke your license for DUII unless you've been convicted or plead guilty. However, the court can impose release conditions that require you to refrain from drinking, driving, etc. Although this isn't technically a "suspension," if you violate the conditions of release, the court will have the power to hold you in contempt, forfeit any security posted (sometimes called "bail"), and revoke your release (meaning you will sit in jail while awaiting the resolution of your case). It can be very confusing keeping track of what you can and cannot do, but it's critical that you know what is going on so that you can avoid getting into even more trouble.

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Can I get a hardship permit?

You may be eligible for a DMV hardship permit 30 or 90 days after your arrest/citation for DUII, but it depends on your driving history and whether the arresting/citing officer alleges that you failed or refused the intoxilizer, urine test, and/or blood test. Although hardship permits provide some relief to a driver's license suspension, they are very restrictive in the type of driving they allow.

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Where is my case going to be heard?

DUII charges are typically handled in the county seat of the county where the alleged offense took place. If you were cited/arrested in an area that you aren't familiar with, download any one of these Oregon Department of Transportation (ODOT) maps: 2005 State Map (1.4Mb), Highway Numbers and Routes 2004 Map (1.7Mb), Large Oregon State Map 2005 (front) (4.2Mb) and Large Oregon State Map 2005 (back) (4Mb).

If you were cited or arrested for DUII in Deschutes County, your case will likely be charged by the Deschutes County District Attorney's Office and proceed through the Deschutes County Circuit Court in Bend, Oregon.

If you were cited or arrested for DUII in Crook County, your case will likely be charged by the Crook County District Attorney's Office and proceed through the Crook County Circuit Court in Prineville, Oregon.

If you were cited or arrested for DUII in Jefferson County, your case will likely be charged by the Jefferson County District Attorney's Office and proceed through the Jefferson County Circuit Court in Madras, Oregon.

If you were cited or arrested for DUII in Klamath County, your case will likely be charged by the Klamath County District Attorney's Office and proceed through the Klamath County Circuit Court in Klamath Falls, Oregon.

If you were cited or arrested for DUII in Lane County, your case will likely be charged by the Lane County District Attorney's Office and proceed through the Lane County Circuit Court in Eugene, Oregon.

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If I have to go to drug and alcohol treatment, where will this be completed?

If you enter the Oregon DUII Diversion Program or if you enter a guilty plea to DUII, you will likely be court-ordered to attend a drug and alcohol treatment program. There are treatment providers located throughout the state. For a comprehensive list of certified Oregon treatment providers, you can view the Oregon Alcohol & Other Drug Services Directory.

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If I was drinking and driving, shouldn't I just plead guilty to get this over with?

Absolutely not. Drinking and then driving is not a crime. Drinking to the point of intoxication and impairment and then driving, is a crime. Everyone in this country is presumed innocent until proven guilty beyond a reasonable doubt. DUII is a serious criminal charge that carries with it the potential of serving months in jail, years on monitored probation, paying thousands of dollars in fines, and a suspension or revocation of your driver's license. At the very least, you should talk to an experienced attorney about your options.

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Why do I need an attorney/lawyer? Can't I represent myself?

You have the right to represent yourself in a DUII (it's called proceeding "pro se"). However, you will almost certainly be at a severe disadvantage. One of the first things that needs to be looked at in a DUII case is the stop of the motorist and subsequent investigation. This is called "the stop" and "search and seizure." An attorney may be able to file and prevail on a Motion to Suppress the DUII stop which could likely result in a dismissal of the entire case. Motions to Suppress in DUII and drug cases are frequently complicated legal matters; if you are not used to handling them, you won't know what you are looking for or what you are missing.

There are also many requirements the State of Oregon must prove to the court before someone can be found guilty of DUII. If you plead guilty, the State of Oregon is essentially free from having to prove anything -- even if the stop of your vehicle was illegal, the police reports contain mistakes, the intoxilizer reading was in error, and/or evidence needed to convict you was lost or mishandled. If you plead not guilty and proceed pro se to trial, you likely will not be able take advantage of all of the legal protections afforded to you. There are numerous rules and procedures that need to be followed at trial, and notwithstanding how trials are depicted in movies and on television, they can be extremely complex. While I was a Deputy District Attorney, I would frequently talk with other Deputy DAs who would agree that some DUII trials were more complex than straightforward homicide cases.

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Isn't an attorney/lawyer going to be expensive?

If you choose the right attorney, you will get what you pay for. Some lawyers charge by the hour, and others charge a flat fee based on the case. During my 30-minute initial consultations, I can tell you what the likely cost of my representation will be. There is no obligation on your part to retain me after this meeting.

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Won't the District Attorney or court tell me all of my options for resolving the DUII?

Not necessarily. DUII cases are very political charges for police agencies and District Attorneys. Police agencies and District Attorneys are frequently concerned about keeping their statistics up to show that they are "cracking down" on "drunk driving." The District Attorney is supposed to tell you about any exculpatory information in your case (evidence tending to show you didn't commit the crime), but they may not do this in the early stages of the case when you need to decide how to proceed. The District Attorney does not represent you, and has no duty to protect your rights. In fact, the relationship is entirely adversarial. The District Attorney is seeking to convict you of a serious crime.

At your arraignment (first court appearance), the court should explain to you your general legal options in resolving the DUII charge. Your relationship with the court is not adversarial, but the court cannot give you legal advice or go into the specific facts of your case to advise you what you should do. Also, be aware that sometimes arraignments are quickly rushed through or held en masse with a group of other DUII defendants. Your first court appearance is not really the best place to explore or consider all of your legal options, but it is a time to listen carefully and write down any future court dates. At your second court appearance, you will likely be told you need to make a decision: Plead guilty, plead no contest, or plead not guilty and request a trial.

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What is a DUII diversion?

A DUII diversion may be available if you have never had a DUII conviction before, or if your last DUII conviction was over 10 years ago. The DUII diversion program allows you to plead guilty up-front, but to have the case dismissed if you comply with the terms of your DUII diversion. Typically, you are required to attend a drug and alcohol abuse assessment, enroll in and complete some form of drug and/or alcohol treatment, attend a Victim Impact Panel (where you learn about the dangers of DUII-related accidents), refrain from the use of intoxicants, and have no other law violations for the term of the diversion. The diversion term is one year, and your driver's license won't be suspended during that time unless you violate the terms of the diversion agreement.

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What are the risks in taking a DUII diversion?

In order to take the DUII diversion, you must plead guilty up-front and you cannot challenge the facts of the case. Also, once entered into the DUII diversion program, you are essentially on a form of monitoring similar in many ways to probation. The District Attorney can require you to come to court anytime they suspect you have violated the terms of your DUII diversion. If you violate the terms of your DUII diversion, the District Attorney only needs to prove the violation by a preponderance of evidence. "Preponderance of evidence" is a legal standard of proof that is much lower than the "beyond a reasonable doubt" standard required in a typical criminal case. There is no jury trial. If the District Attorney proves to a judge that you violated your DUII diversion, the case proceeds immediately to sentencing. You cannot go back and challenge the DUII charge. At sentencing, you will face a license suspension, fines, jail time, community service, and probation.

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What about a plea bargain? Can I get the District Attorney to dismiss the DUII or let me plead guilty to something else (like Reckless or Careless Driving)?

No, Oregon law prohibits plea bargains on DUII cases. However, the District Attorney has discretion to dismiss the DUII charge if there is a problem with the case. Depending on the facts of the case, your lawyer may be helpful in convincing the District Attorney that he/she will likely lose at trial because of legal or factual problems in the case. Also depending on the facts of the case, your lawyer may be able to negotiate other terms of the sentence (jail, community service, probation, etc).

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What should I look for when selecting a DUII attorney/lawyer?

When selecting an attorney for any legal matter, it's important that you feel comfortable speaking with the attorney, that you feel the attorney is interested in your case, and that the attorney respects the trust you've given him/her as your counselor at law. In looking for an attorney to represent you specifically on a DUII charge, remember that many of the issues presented in DUII cases are complex. Look for an attorney with actual experience in litigating DUII charges. DUII cases are more likely to go to trial than many other cases. Even if you think you may take a diversion or plead guilty, an attorney that has actual trial experience on DUII cases may be able to spot issues that another attorney may miss.

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