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SERVICES - DUII

IMPORTANT INFORMATION ABOUT OREGON DUII LAW

To view one of the following topics, click on the link below:

  1. Rule Number One: KEEP YOUR MOUTH SHUT!
  2. DUII is a Serious Criminal Charge
  3. DUII Diversion Agreements
  4. DMV License Suspension for Breath Test Failure / Refusal
  5. How to Request a DMV Implied Consent Hearing

Rule Number One: KEEP YOUR MOUTH SHUT!

This is the most important thing to remember. When you have been stopped and are suspected of being DUII, the police officer is no longer your friend. EVERYTHING that you tell him/her will be written out in a report which that police officer will use when testifying against you. NOTHING that you say will help you. You CANNOT talk your way out of a DUII.

Always ask for a confidential telephone consultation with an attorney. A. Alexander Hamalian can be reached by cell phone at (503) 313-6522, or the office at (503) 222-3641.

Generally, after the police officer arrests you for DUII, he/she will take you to the police station and ask you to take a breath test. During the requisite 15 minute observation period before you can take the test, the officer will "interview" you, using a DUII Interview Form. Some of the questions include:

  • Have you had any alcohol?
  • If so, how much have you had?
  • Rate your level of sobriety on a scale of 1 to 10
  • Have you ingested any prescription drugs in the last 24 hours?
  • Have you taken any illegal drugs in the last 24 hours?
  • How do you think that you did on the Field Sobriety Tests?
DUII Interview Form

This form is a sample of the DUII Interview Form used by the police to get you to incriminate yourself. If your case ends up in court, would you rather have the police officer and district attorney able to quote you -- sometimes out of context -- discussing your sobriety and other potentially damaging statements, or would you rather leave the police officer and district attorney with less potential evidence to present to the jury?

[ Click on the image to see a copy of a DUII Interview Form. ]

If you take nothing else from this website, please think before you speak, and NEVER speak to the police when you are suspected of a crime -- beyond politely identifying yourself -- without your lawyer present.

 


DUII is a Serious Criminal Charge

Oregon law is strict on DUII charges. Oregon Revised Statutes (ORS) Chapter 813 is the main source of DUII law in Oregon. To read ORS Chapter 813, click here.

  • First, pursuant to ORS 813.170, a DUII charge cannot be dismissed or reduced in exchange for a plea to a non-DUII charge through a plea bargain (i.e., a "wet" reckless) -- a practice common in other states, including Washington and California.
  • Second, pursuant to ORS 813.020, a person convicted of DUII in Oregon must spend a MINIMUM OF TWO (2) DAYS IN JAIL (except in VERY RARE instances when a person may perform substantial amounts of community service in lieu of jail).
  • Third, pursuant to ORS 813.010, the MINIMUM fine to be imposed for a DUII conviction is $1,000. Furthermore, due to a 2003 amendment (effective January 1, 2004), a person convicted of DUII in which a person under 18 years old (and more than three years younger than the driver) was a passenger can be fined up to $10,000!

DUII Diversion Agreements

Effective January 1, 2004, the law regarding entry into a DUII Diversion Agreement changed substantially. Prior to this year, a person who had not had a prior DUII or diversion within the previous ten (10) years could participate in diversion. The only requirements were that the person opt to enter diversion within thirty (30) days of arraignment on a DUII charge, complete an assessment, complete recommended treatment, demonstrate a verifiable period of at least ninety (90) days of sobriety, and, at the end of a one year period, that person would have his/her DUII charge dismissed. The only real consequence of failing to complete diversion under the old law was that the person would be kicked out of the program and forced either to enter a plea bargain or go to trial.

Under the amended diversion law, a person charged with DUII must still choose whether to enter diversion within thirty (30) days of arraignment, complete an assessment, complete recommended treatment, demonstrate ninety (90) days of sobriety, and will qualify for a dismissal; HOWEVER, in order to participate in the DUII Diversion Program, the person MUST plead either GUILTY or NO CONTEST to the DUII charge and face the fact that if the person fails to complete diversion successfully, then the GUILTY or NO CONTEST plea will be entered and the person will be sentenced to JAIL time, a substantial fine, driver's license suspension, and other serious consequences.

Effective January 1, 2006, those who hold a CDL are presumptively excluded from the diversion program.

To view the diversion statutes as amended, click here to view a page containing ORS 813.200, 813.210, 813.225, 813.230, and 813.255.

DMV License Suspension for Breath Test Failure / Refusal

Perhaps the most important initial effect of a DUII arrest is the near certainty that your driver's license will be suspended. Although you almost certainly have not been arraigned on your DUII charge (and, in SOME instances, you may never be), your driving privileges WILL BE suspended thirty (30) days after a breath test failure or refusal -- for a period of time ranging from ninety (90) days to three years, depending upon your DUII history and whether or not you took the breath test.

This suspension is separate from -- and in addition to -- any suspension that will be imposed after any DUII conviction. The suspension will still be in place even if you are acquitted of the DUII or the charge is dismissed.

For a complete guide of Oregon length of license suspension, download the PDF Oregon Suspension/Revocation/Cancellation Guide.

How to Request a DMV Implied Consent Hearing

  • In order to have any chance of preventing this suspension from taking effect automatically, you MUST request -- in writing -- a DMV hearing and that request must be RECEIVED by DMV within ten (10) days of your failure or refusal or you will waive your right to such a hearing.
  • Click here to read the DMV Administrative Rules governing Implied Consent Hearing Procedures (including the minimum requirements for a written hearing request).
  • Of course, if you don't feel comfortable filing this request or appearing at the hearing, any criminal attorney can be of assistance. If you retain counsel to represent you at the hearing, you do not even need to appear.

 

DUII-Oregon / DUI-Washington
Compiled by Aryn Seiler

General statement for WA DUI

A first DUI conviction in Washington is punishable by $5,000 plus other possible penalties from the courts, including jail time. Washington drivers face as much as one year in jail and the suspension of their license for 90 days with a first DUI conviction. Repeat offenders could be sentenced to other penalties, including home detention, license suspension, or revocation for as long as four years.

Motorist Implied Consent Law-OR

  • Operating a vehicle (including a bicycle, but not including a boat) in the state is consent to a breath or blood test to determine alcohol concentration or the presence of any drug
  • The officer must inform you of your rights and the consequences of refusal to submit to a test
    • If you refuse to submit to a test you will not be eligible for a hardship permit
    • Refusal may result in a fine ($500 - $1000)
    • Refusal will result in a lifetime suspension of a CDL
    • Refusal will to submit to a test is admissible in any criminal or civil action arising out of the DUII allegation

Implied Consent-WA

  • Operating a motor vehicle in the state is consent to a test or tests of breath or blood to determine alcohol concentration or the presence of any drug.
  • In Washington implied consent does not apply to bicyclists suspected of DUI.
  • The officer must inform you of your rights and the consequences of refusal to submit to a test
    • A refusal will result in the your license being revoked for at least one year
    • Refusal may be used as evidence in a criminal trial
    • A driver may be eligible to immediately apply for an ignition interlock driver's license. However a driver waives his or her right to an implied consent hearing if he or she receives the ignition interlock driver's license

Three-Strikes Revocation-OR

  • The court will order that your driving privileges be permanently revoked if you are convicted of felony driving while under the influence of intoxicants or upon your third or subsequent DUII conviction.
  • The court will count DUII convictions from different states in most circumstances.
  • Bicycle DUII convictions count towards a three-strikes revocation.

Revocation-WA

  • Repeat offenders could be sentenced to other penalties, including home detention, license suspension, or revocation for as long as four years.

Elements of Felony DUII-OR

  • 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.]
  • Measure 73
    • Under Oregon law prior to December 2, 2010, DUII convictions were misdemeanors through the third conviction. That conviction imposed a minimum sanction of 80 hours of community service or two days in jail. Under Measure 73 sentencing guidelines for repeat felony offenders convicted of driving under the influence of intoxicants, judges can impose 13- to 30-month sentences starting with the fourth conviction.

Elements of Felony DUI-WA

  • Four prior convictions within the previous 10 years will convert a 5th DUII conviction into a felony chargei
  • DUI convictions issued in other states with similar statutory requirements have been found to qualify as DUIs in WA for the purpose of determining felony requirements (4 prior California DUI convictions will be recognized by Washington).

DUII-OR Bicyclingii

  • In Oregon the DUII statute applies to bicyclists.
  • The three-strikes revocation statute is applied to DUII bicycling charges even though a driver's license is not required to operate a bicycle.
  • Prior misdemeanor DUII charges will convert a fourth DUII charge into a felony charge. Oregon law does not distinguish bicycle DUII from motorized vehicle DUII.

DUI-WA Bicycling

  • Washington DUI laws apply only to motor vehicles.
  • There is no implied consent assumed for a bicyclist suspected of DUI. This means that a bicyclist does not have to give a breath test or a blood test.

DUII-OR Boating

  • The Oregon Implied Consent law does not apply to boating under the influence. This means, unlike drivers of other motor vehicles, a person suspected of operating a boat while under the influence of intoxicants is not deemed to have consented to a breath test.

DUI-WA Boating

  • RCW 79A.60.040: Operation of a vessel under the influence of intoxicating liquor may result in a misdemeanor charge.
    • RCW 9.92.030: Punishment of a misdemeanor (when not fixed by statute)
      • Maximum sentence of 90- days in county jail; or
      • Court-determined fine not to exceed $1000; or
      • Both of the above
  • The alcohol concentration 0.08 applies
  • Prescription medication does not constitute a defense

 

Notes I

  • All drivers must be Mirandized before any test is administered
  • OR Alcohol concentration
    • 0.08 Adults
    • 0.04 Adults with a commercial driver's license (Federal Standard)
    • ---- Any amount for minors (under 21 years of age)
  • WA Alcohol concentration
    • 0.08 Adults
    • 0.04 Adults with a commercial driver's license (Federal Standard)
    • 0.02 Minors (under 21 years of age)
  • WA courts may reduce a DUI to reckless driving, but a reduced criminal charge will not affect a license suspension, revocation, or other administrative action
  • Under Oregon law pushing a motorcycle while intoxicated qualifies as a DUIIiii
  • Under Oregon law the vehicle need not be in motion at the time of DUII arrestiv
  • Under Oregon law an intoxicated passenger in a non-moving vehicle operating an electric window constitutes operating a vehicle within the meaning of the DUII statutev
  • Fees associated with requesting hearings, appeals, and ignition interlock devices may be mitigated for low income and indigent drivers. (both OR and WA)
  • Comity: Both Oregon and Washington generally recognize the DUII/DUI convictions of other states, and will notify the motor vehicle administrator of any other state where a DUII/DUI convicted driver holds a valid driver's license
  • RCW 9.94A.525: WA Offender's Score
    • (e) If the present conviction is felony driving while under the influence of intoxicating liquor or any drug (RCW 46.61.502(6)) or felony physical control of a vehicle while under the influence of intoxicating liquor or any drug (RCW 46.61.504(6)), prior convictions of felony driving while under the influence of intoxicating liquor or any drug, felony physical control of a vehicle while under the influence of intoxicating liquor or any drug, and serious traffic offenses shall be included in the offender score if: (i) The prior convictions were committed within five years since the last date of release from confinement (including full-time residential treatment) or entry of judgment and sentence; or (ii) the prior convictions would be considered "prior offenses within ten years" as defined in RCW 46.61.5055.
  • OR: Title 59 Oregon Vehicle Code
    • ORS 813.010 General Provisions
    • ORS 813.020 Fees to be paid on conviction
    • ORS 813.095 Implied Consent (and offense of refusal to take a breath test)
    • ORS 813.110 Temporary permit upon confiscation of driver's license
    • ORS 813.130 Rights and consequences for person asked to take a test
    • ORS 813.170 No Plea Agreements
    • ORS 813.200 Diversion
    • ORS 813.500 Hardship permits
    • ORS 813.600 Ignition Interlock Devices
  • WA Title 46 Motor Vehicles
    • RCW 43.43.308 Implied Consent
    • RCW 43.43.390 Bicycle Awareness Program

Notes II

  1. Typo on the RCDC webpage: "How to Request a DMV implied Consent Hearing[l]"
  2. A really great link for WA DUI frequently asked questions:
  3. Link for Boating DUI in Washington
  4. Link for WA Driver's Hearing Request
  5. Link for the WA ignition interlock device information and application
  6. Link for the OR ignition interlock device information and vendor list (PDF)
  7. Measure 73 Oregon mandatory minimum sentencing for certain felonious crimes

  1. The court in State v. Castle found that a defendant, while driving a vehicle in the state must have been under the influence of intoxicants and must have had four prior convictions within the previous ten years. State v. Castle (2010) 156 Wash. App. 539, 3234 P.3d 260. Also State v. Chambers (2010) 157 Wash. App. 465, 237 P.3d 352
  2. State v. Abbey (2010) 245 P.3d 152, 239 Or. App.
  3. Bekos v. Providence Health Plan (2204) 334.f.supp.2d 1248
  4. State v. Bilsborrow (2009) 215 P.3d 914, 230 Or. App. 413
  5. State v. Cruz (1993) 121 Or. App. 241, 855 P2.d 191

ATTENTION: The presentation of information on this website is not intended to -- and does not -- constitute legal advice. Additionally, no attorney-client relationship is formed by accessing, viewing, or submitting information via this website.