Oregon DUI Lawyer Blog

Oregon DUI law took a turn for the sensible this month. The Oregon Court of Appeals held in Oregon v. Bevan that vertical nystagmus or VGN evidence is improper. VGN is the involuntary jerking of the eyes up and down. Although the test is not validated the same way HGN is, police routinely check for VGN.

When VGN is present, police often testify that the presence indicates extreme amounts of alcohol or that the person has consumed more alcohol than usual. The court of appeals in Bevans ruled that such testimony is improper because it is not backed up with scientific validation.

This result is a welcome turn towards science. In DUI cases, the government often cloaks its testimony in science to make it seem irrefutable. When that science is challenged, the government sometimes claims that such challenges go to the weight of the evidence not its admissibility. This is a classic example of trying to have it both ways.

In this case, the Court of Appeals held the government to a logical position. If the government wants to introduce scientific evidence, that evidence must be based in science. This result should not come as a surprise. There is well established case law laying out the basis for allowing scientific evidence. Far too often, however, it seems that there is an DUI exception to the rules. This case, along with the earlier Court of Appeals case of Machuca, indicate a trend away from this historical unwritten exception.

In Oregon it is illegal to drive while under the influence of intoxicants. These intoxicants can be alcohol, controlled substances, or the combination of alcohol and controlled substances. One question that sometimes arises is whether or not it matters if the driver has a prescription.

It does not matter if the controlled substances are prescribed. It is nevertheless illegal to drive if the controlled substances affect the driver's ability to a noticeable and perceptible degree. It is illegal to possess many prescription pain killers without a prescription. If someone has a prescription, simply having the pills is not illegal. If the pain kills affect the person's ability to drive, however, it is illegal for that person to drive while taken them. This is true even though the medicine is prescribed.

This is also the case for prescription marijuana. While a person with a prescription for marijuana is exempt from the possession laws, he still cannot drive while under the influence of marijuana.

Some prescription medications do not intoxicate people by themselves. When mixed with alcohol, however, the combined affects are greater than alcohol alone. When this is the case, a jury is allowed to consider the possible side affects of the medication when determining intoxication. This can lead to convictions for DUI well under the legal limit of .08.

Back in December, I reported on a man charged with DUI in a stolen Portland police car. This seems like the type of thing that would almost never happen. Only a few months later, however, lighting has struck again. Recently, another man was arrested in Salem DUI in a police car.

In this case, police first heard reports of a white mustang driving recklessly. When police found the white mustang, it turned out to be a stolen police car. An 18 year old man was passed out in the car at the time. The man was charged with unlawful use of a motor vehicle, driving under the influence, and reckless driving.

As I noted a few days ago, there is an affirmative defense to physical control. In this case, the man was not actually caught while driving. There may be circumstantial evidence of driving in this case. The news reports are not clear on that point. If this case is actually a physical control case, however, there could be a defense. That may not help with the unauthorized use of a police car charge however.

In Oregon, there is a companion statute to the DUI law. It is against the law to be in actual physical control of a motor vehicle while under the influence of intoxicants. Most lawyers refer to this crime as "physical control." The physical control statute helps prosecutors get around the proof problem presented by drunk people in cars who aren't actually driving when the police contact them.

I once had a case in which the driver was contacted by police on the side of the highway. The driver was obviously intoxicated. She had a half empty bottle of liquor with her in the car. The prosecutor charged DUI. A judge threw the case out because there was no evidence of driving. The judge even said that the prosecutor should have charged physical control. Of course, that case was less good lawyering from me then just a mistake of the prosecutors. The case does show why the physical control statute is there though.

One interesting wrinkle about physical control is that there is an affirmative defense of safely off the roadway. This means that even if the prosecutor can prove all the elements of physical control, a person is not guilty if, prior to being contacted by the police, the person moved the car safely off the roadway.

This affirmative defense makes perfect sense from a public policy standpoint. As a society we don't want to punish people who have done the responsible thing and gotten their car off the roadway rather than drive drunk. The affirmative defense also makes physical control cases very fun legally.

The Oregon Legislator is considering a bill that would change the DMV implied consent hearing process. Under the current law, DMV hearings are conducted in person. This session, Rep. Judy Stiegler introduced House Bill 3601 which would have changed that procedure. The bill, as introduced by Rep. Stiegler, would have added a $200.00 fee for requesting a DMV hearing and it would have required that all DMV implied consent hearings were conducted over the telephone.

Most DUI defense lawyers consider in person DMV hearings valuable tools in preparing a defense. The DMV hearing takes place shortly after the incident, to the events are typically fresh in the officer's mind. This freshness allows the officer to testify from more than what he typed in his report. DMV hearings are last formal that court. This informality allows for an easier exchange between a testifying officer and a questioning lawyer.

The combination of these factors, often leads to valuable testimony. Offers often bring up details in DMV hearings that prove to be important in later court hearings. Since DMV hearings are conducted under oath, an officer cannot change his testimony. Rep. Stiegler has strong ties to prosecutors. It is believed that the intent of this bill was to prevent defense lawyers from properly questioning witnesses at DMV hearings.

Luckily, thanks to the lobbying efforts of lawyers and even honest minded law enforcement, the bill has now been amended. As it now reads, the bill would make a presumption of a telephonic hearing. An in person hearing would be allowed if either the police or the defense requests it. The bill also requires that the testifying officer be actually involved in the investigation. The $200.00 fee was dropped altogether.

If this bill does pass, it will create some minor changes to the DMV hearing process. Most of these changes will likely be administrative. There will be one more thing to request when asking for a hearing. Thankfully, however, the bill no longer threatens to undermine a valuable tool for the defense in fully examining a DUI allegation.

The Oregon Supreme Court overturned the Court of Appeals in State v. Machuca today. Late last year, the Court of Appeals held that breath and blood tests were inadmissible searches because the implied consent advisement is coercive and the State had not shown exigency.

Generally, a search requires a warrant. There are a few exceptions to this warrant requirement. The Supreme Court today focused on the exigency exception. Under the exigency exception, police do not need a warrant in cases where evidence is likely going to be lost. The Court held that because alcohol is metabolized, it is likely to be lost. Therefore, exigency exists in most cases. Although the Court did not go so far as to create a per se exigency exception, it did say that exigency will exist in all be rare cases.

Because the Court found exigency, it expressly declined to address whether or not the implied consent advisement is coercive. The Court noted that the implied consent advisement was operating in the manner intended by the legislature. This observation is neither here nor there in terms of the constitutionality consent however. Because the Supreme Court did not address the Court of Appeals holding regarding consent, that holding should still valid law.

Of course, the State must still lay the foundation for breath and blood tests. Tests must still adhere to testing protocols. This decision means that trial courts will be very unlikely to suppress tests based entirely on the lack of a warrant.

One area where this decision could have an interesting effect is in test refusal cases. The Supreme Court noted today that the legislature did not want to compel blood tests. Nevertheless, if there is truly exigency, police could obtain blood without a warrant or consent. If this is the case, then in refusal cases, the lack of blood could be a significant point. As is often the case, more litigation will be required to fully sort at the implications of this decision.

One consequence of a DUI conviction is a license suspension. Not being able to drive is a serious incontinence to many people. Although public transportation is a viable option for many people in Portland, in outlaying areas the inability to drive is severely limiting. For this reason, it is important to fight for your license at both the DMV and in the courts.

When someone's license is suspended, it might be tempting to simply drive anyway. Driving with a suspended license due to a DUI is a separate crime. If someone is caught driving after his license was suspended for either a DUI conviction, or after an administrative suspension for failing or refusing a breath test, he will likely be charged with a new misdemeanor of DWS. There are other types of license suspensions as well, but the focus of this post is license suspensions arising out of driving under the influence.

Like any other crime, a driving while license suspended charge could carry fines, custody or probation. Indeed, there is a mandatory fine of $1000.00 for a DWS where the underlying suspension was due to a DUI conviction. Moreover, it could be a probation violation for the underlying DUI charge that resulted in the license suspension.

For all these reasons, it is best to avoid a DWS charge altogether. If a driver is charged with DWS, however, the next best thing is to immediately talk to a criminal defense lawyer who understands the interplay between the DWS charge and the original DUI.

Oregon criminal law has a unique provision that could result in large damages awarded during a DUI trial. When a driver is under the influence and injures another person, the driver could face additional penalties beyond traditional DUI consequences. These other penalties typically include additional criminal charges. In Oregon, the driver can also be ordered to pay damages directly to the injured party.

In most states, monetary damages are only awarded to injured parties through the civil law. This means, when a person is injured be someone committing a crime, the injured party has to sue the other party. Such a system results in two court cases. One case deals with the alleged criminal conduct. The other case deals with any monetary liability.

Under Oregon's Victim's Rights Law, a judge to award damages to a victim when someone is convicted of a crime. That is exactly what a St. Helens woman is asking a judge to do. According to news reports, the woman suffered serious brain injuries during a DUI accident. She is not asking a judge to award her $125,000 in damages following the driver's criminal conviction.

This provision of Oregon Law has not yet been used heavily in DUI cases. If people start being awarded damages, however, it is likely that claims for damage will increase. In any event, the possibility of direct liability to an injured party is just one more way in which driving under the influence charges can carry heavy consequences.

Oregon law requires an ignition interlock device (IID) for drivers who have been convicted of driving under the influence of intoxicants. The key word in this requirement is "convicted." An IID is not required for people who avoid a conviction. This means IID are not required if a driver completes diversion. Although an IID is not required following an administrative suspension, one is required to get a hardship permit.

In order to reinstate a license after a DUI conviction a driver will be required to install an IID on his car. The IID will be required for one year following the first conviction and two years following the second conviction. Ignition interlock devices are provided by third party businesses. Drivers are typically required to lease the devices from the providers as well as paying for installation.

Ignition interlock devices work by attaching a portable breath tester to the ignition system in the car. The driver is required to blow into the device in order to start the car. The driver is also periodically required to blow into the device while the car is running in order to keep the car running.

Because of the problem of false positives, people who have ignition interlock devices installed on their cars should avoid any form of alcohol. Mouth alcohol from mouthwash or cough medicine could potentially cause a false positive on an IID.

Driving under the influence carries serious consequences. The consequences of a DUI are potentially even higher if someone has a pilot's license.

Pilot's licenses are governed by the Federal Aviation Regulations. These regulations require a pilot to self report any DUI conviction or administrative sanction results from a DUI. This means that if a Pilot is arrested for DUI in Oregon, he could have report both a DMV suspension and a criminal convicted. Pilots must report these sanctions within 60 days.

A certificate, rating or authorization can be suspended or revoked for a year if a pilot has 2 motor vehicle actions within 3 years. The FAA defines "motor vehicle actions" to include both DUI convictions and administrative license suspensions. For this reason, a pilot could conceivably suffer a suspension of his pilot's license based on one event of drinking and driving. A single count of refusing to take a breath test can result in a year suspension of a certificate, rating or authorization.

A pilot who is accused of driving under the influence should contact a DUI attorney immediately. The best way to protect a pilot's license from a DUI conviction or administrative sanction is to avoid them altogether. It is also important to note that most airlines will not hire a pilot with a DUI conviction on his record regardless of his licensing status. This makes defending a DUI all the more important for pilots.

When most people think of the consequences of a DUI conviction, they think of license suspensions or criminal consequences. For most people, these consequences will be the most significant results of a potential DUI conviction. In Oregon, these consequences are government by ORS Chapter 813. There are additional potential consequences if someone has or is thinking about getting a Coast Guard Issued License or Merchant Marine Documents (MMD). These consequences are governed by Federal Law.

Coast Guard Credentials, in either the form of a license or MMD, are required for most jobs in the maritime industry. The United States Coast Guard oversees the licensing process at the Regional Exam Center (REC) level. A DUI conviction could impact someone's ability to obtain or keep Coast Guard Credentials.

When an applicant applies for Coast Guard Credentials, he is required to disclose all criminal history including any past DUI convictions. The local REC will run a national background check on the applicant. If the applicant has a prior DUI, the director of the REC will make a determination regarding the applicant's suitability. Factors that will be considered are: the number of convictions, the severity of the incidents, the time since the conviction, and the applicant's recovery. To aid the REC in this determination, the applicant will be required to submit court records from his criminal case.

A DUI conviction can also impact existing Coast Guard Credentials. If the Coast Guard finds out about a DUI conviction, they will hold an investigation. At the very latest, a DUI conviction will become an issue when it is time to renew an MMD or Coast Guard license.

As a DUI lawyer, I dealt with these issues more often when I was practicing in Seattle. These issues can be important to people in the Portland area as well though. If Coast Guard Credentials are an issue for you, please make sure your DUI attorney knows.

According to associated press reports, a Newberg Oregon man was arrested for driving under the influence after he hit a police car. The police car was apparently parked with an officer inside. The officer was taken to the hospital for treatment. Thankfully the officer only had minor injuries. The incident is a good reminder, however, of how dangerous driving and driving can be.

If a driver is intoxicated and he injures or kills another person, he could be charged with more than a simple DUI. If a driver kills someone, he could be charged with manslaughter, or negligent homicide. This is true whether or not the driver had been drinking. Likewise, a person could be charged with serious assault, or vehicular assault of a bicyclist or pedestrian, or reckless endangerment if he injured or even could have likely injured another. Some additional elements beyond DUI would need to be proved for all of these crimes.

Many of these crimes are measure 11 crimes. This means that there are heavy mandatory penalties if convicted. For example, Manslaughter 1 caries a mandatory 10 year sentence. Even Manslaughter II caries a mandatory sentence of 75 months. Even in cases where the government only adds misdemeanors such as reckless endangerment or reckless driving, a driver can be facing a serious barrage of charges.

None of these statues are particularized to DUI. They could apply to a variety of cases but could be used by prosecutors to go after drivers who had been drinking under certain circumstances. In addition to these laws, Oregon has an Aggravated Vehicular Homicide statute. To convict someone of Aggravated Vehicular Homicide the government must prove something about the driver's mental state. The government must also prove a causal relationship between the driving and the death. This statute only applies to people with prior manslaughter or negligent homicide convictions. Aggravated Vehicular Homicide is a Class A felony.

Under Oregon DUI law, there are different consequences for a DUI depending on whether or not the driver has a previous DUI conviction. License suspensions are longer if a driver has a prior offense. This is true of both administrative suspensions through he DMV and suspensions arising out of DUI conviction. Also, the minimum fines are higher. Moreover, diversion is only available on a first offense within 10 years.

A conviction from another state can count as a prior conviction for the purposes of Oregon law. This applies to any conviction from another jurisdiction involving the operation of a motor vehicle, airplane, or boat while under the influence of intoxicants. It also applies to any conviction from another jurisdiction for operating a motor vehicle, airplane, or boat with a blood alcohol concentration above that jurisdiction's legal limit. However, there is an exception for prior convictions of people under 21 where there is a lower limit for people under 21.

This definition of prior offense applies regardless of what the prior offense is called. Some jurisdictions refer to driving under the influence differently. In Oregon, driving under the influence of intoxicated is officially referred to as DUII. However, most people commonly call it DUI. Other places refer to DWI or driving while intoxicated. Still other states have OUI or operating under the influence laws. Regardless of the name, these all count as priors under Oregon law if the offense involves driving while intoxicated.

Because the federal government ties transportation funds to certain DUI provisions, all states now have a presumptive limit of .08. If a state were to adopt a lower limit, violation of that lower limit would constitute a prior offense even if it were not a DUI in Oregon. There may be room to argue that certain out of state statutes do not fall under this definition depending on how those statutes are worded. Organizations like the National College for DUI Defense can be helping to your lawyer with that type of information.

It is important to be honest and upfront about your criminal history when speaking with your DUI lawyer. Whether or not you have a prior conviction could play an important role in how your lawyer approaches your case. Keep in mind that everything you tell your attorney is confidential.

Under Oregon Law, there are two ways in which a person can lose his license for DUII. The first way is through the DMV administrative process. The second way is through the criminal justice system. These are separate and distinct processes.

The DMV can suspend a driver's license if the driver is arrested for DUII when the driver has either a BAC of .08 or above or when the driver refuses to take a breath or blood test. The length of a DMV suspension depends on the driver's history and whether or not the driver took the breath or blood test. This type of suspension can be between 90 days to 3 years.

A DMV administrative license suspension can be imposed even if a driver is found not guilty of DUII in a criminal proceeding. A driver's license can also be suspended if he is convicted of DUII in a criminal proceeding. Suspensions arising out of a conviction can vary in length between 6 months for a discretionary suspension in a controlled substances DUII to a revocation in a 3rd offense or felony DUII.

Because there are multiple ways to lose a license in a driving under the influence case, a driver should consult with a DUI lawyer as soon as possible. The DMV only gives drivers 10 days to request a hearing. If the hearing is not requested in time, the driver will lose his license automatically.

As a DUI lawyer licensed in both Oregon and Washington, I see a lot of cases on both sides of the river. This is especially true practicing here in the Portland area. There are many differences between Oregon and Washington law. One area that creates a lot of confusion among clients is DUI sentencing.

Oregon DUI law prevents plea-bargaining in driving under the influence cases. However, on a person's first offense, he may enter into a diversion program if he qualifies. By going into diversion, the person can avoid a DUI conviction. The mandatory sentence for DUI does not go up on a second or third offense, although judges will typically give a higher sentence.

Washington DUI is the reverse. Plea-bargaining is allowed. There are strict mandatory minimum sentences that go up sharply on someone's second and third convictions in seven years.

Where Oregon has diversion, Washington has deferred prosecution. A deferred prosecution can only be used once in a lifetime, but it can be used on any DUI charge not just the first. Therefore, most Washington DUI lawyers advice people not to enter into a deferred prosecution on a first offense.

Both of these systems have strengths and weaknesses from a public policy point of view. From a practical stand point, they create interesting differences. Due to the availability of diversion, some clients consider a first offense in Oregon to be less daunting than a first offense in Washington. Conversely, because of deferred prosecution, many clients are more comfortable with a second or third offense in Washington than in Oregon.

It is important to remember that each DUI charge is potentially very serious. Many people are unsuccessful in diversion and deferred prosecution. However, both programs can be very helpful when approached properly. In either state, is important to talk with a qualified DUI defense attorney before making any decisions.