We have experience handling driving under the influence cases throughout the mid-columbia region and have successfully litigated DUII cases in most of the courts in our area.  We will work hard to keep you out of jail and preserve your driving privileges.

 

1.  Initial Stop and Arrest.

 

If you have been arrested for driving under the influence or are being questioned by the police regarding a possible DUII arrest please call the office number now for advice.  If it is after business hours please contact Mr. Grossman by calling his mobile phone at 541-980-3209. 

 

Should I consent to the breathalyzer test? 

 

There is no easy answer to this question.  It depends on several factors, including the amount of evidence the police currently have that you were driving under the influence and whether or not you are diversion eligible.  Generally, if you have not had any prior DUII convictions or diversions in the last 15 years you are eligible, unless someone was injured or killed in the present case. 

 

If you are diversion eligible and the police have a significant amount of evidence of your guilt, it is probably best to consent to taking the breathalyzer.  If you refuse the breathalyzer, and the police have probable cause to believe you were driving under the influence, then you will receive an additional charge of "Breath Test Refusal" and an automatic one-year driver's license suspension through the Oregon DMV.  [Unless you have a prior DUII related suspension in the last five years then you will have an "enhanced" suspension of three years]. For blowing on the breathalyzer and failing, you will only receive a 90-day "breath test failure" suspension.  [Or a one-year enhanced suspension due to prior DUII suspensions in the last five years]  And under the diversion program you will not receive any further suspension.

 

If you are not diversion eligible and you end up with a DUII conviction, you will have at least a one-year suspension anyway.  Therefore there is not much to lose by refusing to blow, except for an additional fine for the Refusal ticket.  So if you are sure that you are not diversion eligible it is generally best to refuse all testing and assert your right to remain silent and speak to an attorney.  Every case is different however so before consenting to any tests or answering questions always attempt to contact an attorney.

 

Oregon DMV Driver's License Suspensions for Failure or Refusal to Take Test:

 

CHEMICAL TEST FAILURE OR REFUSAL 

LENGTH

HARDSHIP WAIT

Breath / Blood Test Refusal

1 year

90 days

Breath / Blood Test Refusal - Enhanced¹

3 years

3 years

Breath / Blood Test Failure

90 days

30 days

Breath / Blood Test Failure - Enhanced¹

1 year

1 year

 

 

 

 

 

 

Note 1:  Suspension lengths are increased if you have had any of the following within the past five years:  a DUII conviction; DUII diversion; or a DUII related suspension.

 

2.   After the Arrest, What Happens Next? Should I Request a DMV Hearing?

 

One of the first things to consider following a DUII charge is whether or not you should request a DMV license suspension hearing.  If you refused or failed the breath test you will have an automatic license suspension through the DMV (see the chart above).  These suspensions begin to take effect 30 days after the date of the arrest. This means you have a 30 day grace period before your suspension starts.  If you want to challenge the legality of the DMV suspension you must contact the DMV to request a hearing within ten days of the date of the arrest.  If you miss that deadline, you lose the chance to challenge the automatic suspension. That means that even if you later go to court and your case is dismissed or you are found not guilty by a jury, the DMV suspension will still be in effect.

 

Just because you request a hearing does not mean that your suspension will be overturned at that hearing. Rather it gives you the chance to have it overturned.  Grounds for overturning the suspension include: the officer did not have grounds to stop your vehicle, the officer did not have sufficient cause to ask you to do the field sobriety tests or to take the breathalyzer, or the officer failed to accurately complete the breath test procedure and paperwork.  You may also be able to have the suspension overturned at the hearing if the arresting officer fails to show up or fails to turn in the paperwork to DMV in a timely manner. 

 

Please call us right away if you are unsure as to whether or not you should request a DMV hearing.

 

3.  First Court Appearance.  Do I Have to Appear in Person?  Should I Get a Lawyer?

 

Generally you must appear in person for your fisrt court appearance or the court will issue a warrant for your arrest.  If you retain us we can typically appear on your behalf if it is inconvenient for you to come to court.

 

If you are diversion eligible and the evidence against you is strong, the most practical course of action may be just to agree to enter the diversion program at your first court appearance.  The judge and DA will typically give you that option and provide you with the necessary paperwork to fill out.  However, there may be defenses or grounds for dismissal that you are unaware of.  It never hurts to speak to an attorney before making an important decision such as this.

 

If you are not diversion eligible or the evidence against you is not overwhelming, the best option may be to hire an attorney and fight the case at trial.  Often there might not be much to lose by the fighting the case but a great deal to gain by a not guilty verdict. Especially if you have prior DUII convictions and are facing serious jail time and a lengthy license suspension.

 

4.  Am I Diversion Eligible?

 

You are likely eligible for diversion if you meet the following criteria:

 

(1) You have no DUII or similar charges pending in any other courts in Oregon or any other state other than the charge for the present offense;

 

(2) You have no other DUII convictions in Oregon or any other state within the past 15 years;

 

(3) You are not currently participating in a DUII diversion program in Oregon or any other state;

 

(4) You have not had any prior DUII diversions in Oregon or any other state in the past 15 years;

 

(5) You have no charges or convictions for murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle in this state or in any other state in the last 15 years;

 

(6) You did not hold a commercial driver license (CDL) at the time of the offense and were not operating a commercial vehicle;

 

(7) The present DUII charge did not involve an accident resulting in death of any person or injury to any person other than yourself;

 

(8) You have not been convicted of a felony DUII in Oregon or any other state. 

 

5.  Diversion vs. Conviction.

 

A DUII diversion is definitely better than having a conviction. 

 

The Diversion requirements typically consist of the following:

 

- a 12 month diversion period during which time you must obey all laws, not consume any alcohol or illegal drugs and not enter bars;

- a $490 diversion fee;

- a subtance abuse evaluation and any recommended treatment classes;

- a one-night Victim's Impact Panel class; and

- install an ignition interlock device on any vehicle you drive during the one year diversion period.

 

Upon a first time DUII conviction you can generally expect at a minimum:

 

- 2 days in jail or 80 hours of community service;

- 18 months of formal probation;

- $1000 fine plus several hundred dollars in additional fees;

- a one-year driver's license suspension;

- a substance abuse evaluation and recommended treatment classes;

- a one-night Victim's Impact Panel class; and

- no alcohol or entering bars for your period of probation.

 

Upon a second, third or fourth DUII conviction you can expect your jail time, length of probation, fine and license suspension to increase significantly.

 

Minimum fines for subsequent convictions are as follows:

 

- $1000 for first conviction, (unless B.A.C. level .015 or above, then $2,000);

- $1500 for second;

- $2000 for third;

 

Minimum license suspensions for DUII convictions are as follows:

 

- one year for first conviction;

- three years for second;

- lifetime for third (may be eligible for reinstatement after 10 years).

 

If you receive a third DUII conviction in a ten year period it will be considered a felony and carry a mandatory 90 day jail sentence.

 

Relevant Oregon code sections can be found at:

 

ORS 813.010 Driving under the influence of intoxicants.

ORS 813.011 Felony driving under the influence of intoxicants.

Oregon DMV Suspension Form.

 

 

 

 

 

DUII Defense

After hours DUII advice: 541-980-3209

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