DUII Arrest In Oregon: Your First Five Moves

If you have been arrested in Oregon for driving under the influence of an intoxicant (“DUII”) pursuant to ORS 813.010, et seq., there are moves that you should take in the first few weeks that will help you in the long run, no matter how you decide to proceed on your case.  At the same time, if you fail to take certain steps, the window of opportunity may permanently close if you are not careful.

1. Contact An Attorney

Naturally, this is a self-serving statement.  But the truth is, no matter who it is that you ultimately hire, an experienced DUII attorney in Oregon is better than no attorney at all.  You may think that you have no chance at winning at trial or of getting a better plea deal, but the truth is the opposite.  Often what clients think are important facts of their case are irrelevant or trivial, yet they overlook the most important details.  It is not their fault – they don’t know what to look for.  A criminal defense attorney, however, can issue spot and sometimes even focus in on small details that in fact destroy a prosecutor’s case.  But unless you hire an attorney, you will miss these little facts that may make or break your case.  Also, feel free to call multiple attorneys, talk with them in person and check references if necessary.  Your relationship with your attorney must be built on both trust and comfort, otherwise that relationship is doomed.

2. Collect or Preserve Evidence

In the first few days, it is important to collect and preserve evidence.  First, write down everything you remember about the arrest – both before and after.  What did you eat that day?  Who were you with?  When and where did you drink?  What happened during the arrest?  If you are not sure if a certain detail is important, write it down anyway – too much information is better than too little.  A timeline will be extremely helpful to your attorney.

Next, go to the scene of the stop and take pictures and/or video – hopefully at the same time of day that the stop occurred.  Talk to potential witnesses as well, such as friends you were with, and write down what they remember – without adding any of your own editorial input.  Save receipts from anywhere you went that night, as receipts can both track alcohol you may have had, as well as provide timeframes.  These sorts of details may be key at trial.

3. Appeal Your License Suspension

People do not realize that you only have ten days from the date of your arrest to appeal a license suspension.  In Oregon, if you either fail a breath test of blood draw, or refuse to take either, there are significant license suspensions that can occur.  For example, if you refuse to take a breath test, you license will automatically be suspended for one year or more.

Appealing the suspension has multiple benefits beyond merely reversing your license suspension.  For example, it gives you a chance to cross examine the arresting officer without the prosecutor present.  This may provide helpful testimony that can be used against the state at trial.  Accordingly, you want to take advantage of the DMV implied consents hearing.  But once that ten-day period passes, generally you lose the opportunity to appeal.  Remember, however, that what happens at the DMV hearing has no legal bearing on your criminal charges.  The administrative side and criminal side of your DUII  arrest have no bearing on one another generally.

4. Determine If Your Diversion Eligible

In Oregon first time DUII defendants who qualify can enter the diversion program which allows a defendant to have his or her DUII charges dismissed if they jump through certain hoops.  This includes attending a victim impact panel class and getting an evaluation and follow-up treatment classes.  However, before you can enter diversion, you have to be eligible, which means, among other things, that:

• You have no DUII charges here or elsewhere pending;
• You have not been convicted of DUII here or elsewhere within the period beginning 15 years before the date of the present arrest;
• You are not participating in a DUII diversion program or in any similar alcohol or drug rehabilitation program in Oregon or elsewhere;
• You did not participate in a diversion or rehabilitation program within the period beginning 15 years before the date of the commission of the present crime;
• You did not hold a commercial driver license (CDL) at the time of the offense;
• You were not operating a commercial motor vehicle at the time of the offense; and
• The present DUII offense did not involve an accident resulting in:
  
  1. Death of any person; or
  2. Physical injury to any person other than yourself.

Often, however, a prosecutor will object to entry into diversion based on these or other subjective grounds, even though arguably you are eligible.  An Oregon criminal defense attorney can set a diversion hearing and perhaps successfully argue you are eligible and get you into diversion.  But often clients do not realize this and think that the prosecutor’s determination of non-eligibility is final.

5. Talk About Your Options With Your Attorney

Once you determine who your attorney is, meet with him or her and make sure to tell your lawyer everything.  Do not hold back information you think is either irrelevant or more importantly damaging to your case.  The bad facts will come out no matter how hard you try to hide them – and when they do it is best that your attorney know about them before-hand so that he or she can be prepared to respond appropriately.  If you lie or omit important facts, you are only hurting your own case.

Once your attorney gets discovery, including the police report, you need to start discussing where you see the case going.  Review the pros and cons of both going to trial versus resolving your claims short of trial.  Your attorney should be able to walk you through the consequences of either choice, cost and even how strong your case is (although your attorney can never guarantee an outcome).  Based on these conversations, you should be able decide for yourself how best to proceed.  Just remember – ultimately it is your decision and you should not be bullied by anyone else.