Oregon DUI QUESTIONS & ANSWERS

Can I get my case dismissed with diversion?

If this is your first DUI in any state you may be eligible to get your criminal law case dismissed by with a program called DIVERSION.

What are DUI / DUII Driver's License Suspensions?​ (DMV & COURT ORDERED SUSPENSIONS)

There are potentially two suspensions if you were arrested for DUII / DUI in Oregon.​ One is the DMV suspension and the other is the suspension that comes from a DUII conviction. A DUI / DUII conviction suspension only occurs if you are convicted and it ranges from one year to lifetime.  The other is a DMV suspension under the implied consent law.

Under the Oregon Implied Consent Law your license will be suspended if:

You blow .08 or higher (.04 or higher for CDL drivers while driving a commercial vehicle, or any amount for minors) . You refused to blow or urinate.​ Under Oregon's Implied Consent Law, the driver of a motor vehicle must take a BAC (blood alcohol content) test, if the officer 1) has a reasonable basis to believe that the person has driven while intoxicated and 2) requests the driver to take a BAC or field sobriety test. If you fail either test DMV will suspend your license for 90 days. If you refuse to take either test, DMV will suspend your driver's license for at least one year. You may get a second suspension from the court, if you are either found guilty or you enter a DUII Diversion Program.  It is very important to have a good understanding of the law and how to get the best outcome. 

Quality legal representation begins with a discussion of the three topics below and a thorough evaluation of the facts. 

Can I keep a DUI / DUII off my record?

Yes, maybe.  There are two ways it won't go on your record.  1) It won't go on your record if you are found not guilty.  2) It won't go on your record if you are accepted and complete a DUII Diversion Program.  But, you only have 30 days from your first appearance to apply.​

Can I represent myself?

Whether this is your first DUI in Portland, your second, or third, I strongly urge you to seek representation from a DUI defense lawyer. With that said, you do have a constitutional right to represent yourself in court. But the odds of success are dramatically reduced if you do not have a lawyer representing you. If you cannot afford an attorney, you have the right to have an appointed attorney at the state's expense. Hershall can help you. 

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​What is the best outcome for you?

Of course a dismissal or acquittal is the best outcome but it all depends on the facts of your particular case. You need to decide on the outcome you want in light of all the facts and your personal circumstances. An experienced DUI Defense Lawyer can help you decided the best course of action for you. I can help you decide.

What if I wasn't driving?

If you weren't "driving" you have a valid defense. Under Oregon law, to be found guilty of DUI, the offender must have driven or operated the vehicle while under the influence. That means the defendant must have put the vehicle in motion while under the influence of intoxicants. Contact an attorney to see if you can fight the DUI charges/ DUII charges in court.

​Although the term "drives" is not defined in 813.010, the word is "construed as requiring that the vehicle be in motion in order for the offense to be committed." State v. MinoiiK 246 0rAppl79. 184-185 (201 1 ). The terms "drives" (ORS 813.010) and "operates" (ORS 813.100) are synonymous. The term "operation" is defined in ORS 801.370 as "any operation, towing, pushing, movement or otherwise propelling." Nothing indicates that this definition not be applied in the context of DUII. State v. Cruz, 121 Or App 241, 244 (1993).

What are the penalties for DUI?

First DUI Penalties:

(NOTE: DIVERSION WILL SAVE YOU MONEY AND A CONVICTION)

1. Two days to one year in jail or 80-250 hours of community service.
2. A minimum fine of $1,000.
3. If BAC is .15 or greater, the fine minimum jumps to $2,000.
4. If a child is in the vehicle, the fine can be as high as $10,000.
5. License suspension for one year.
6. Installation of an ignition interlock device for one year after license suspension. This device disables a car from starting unless the driver passes a BAC test.
7. Drug and alcohol program.
8. Participation in the Victim's Impact Panel program.

Second DUI Penalties:

1. Up to one year in jail.
2. A minimum fine of $1,500.
3. If BAC is .15 or greater, the fine minimum jumps to $2,000.
4. If a child is in the vehicle, the fine can be as high as $10,000.
5. License suspension for three years, if the offense was within five years of the previous DUI.
6. Installation of an ignition interlock device for two years after suspension.
7. Drug and alcohol treatment program.Participation in the Victim's Impact Panel program.

Third and subsequent DUI penalties:

(Note: These are penalties for a third DUI offense within 10 years of the first two offenses. This is considered a class C felony.) 

1. Up to five years in jail. A minimum fine of $2,000, regardless of BAC. The fine can be as high as $10,000 if there is a child in the vehicle.
2. License permanently revoked.  (May be eligible to petition the court to order reinstatement after 10 years).
3. Drug and alcohol treatment program.
4. Participation in the Victim's Impact Panel program. Felony status can affect defendants in a number of ways, including: employment, housing, impeachment in future court proceedings, possession of firearms (see ORS 166.274) and inability to sit on a jury. The defendant should be fully informed of all these potential consequences as soon as possible before proceeding with the case.

What does your DUI lawyer do?

​Your attorney will evaluate your case and explain the options. Then take the course that you choose. Sometimes your attorney can have the DUI charges dismissed before going to trial. Sometimes he/she will defend you at trial; and if included, defend your driving privileges at a DMV hearing. 

If you qualify for a DUI Diversion, your lawyer will take care of all court filings and court appearances.  And sometimes your DUI Lawyer can negotiate a plea deal on additional charges--but not the DUI. 

In any event the DUI/DUII Lawyer's goal is to reduce, if not completely eliminate, the legal implications of the DUI charges.  

What if my constitutional rights were violated?

We evaluate the legality and constitutionality of the stop and arrest.

As your DUI defense lawyer, we analyze all the facts. Every little fact is important. That's why your attorney will evaluate the reasons the police stopped you, the procedures the police followed before and after the stop, whether the testing equipment was calibrated by a certified technician, whether the police officer administering the test was certified, and more. 

Sometimes the police make a mistake which, in narrow cases, can result in 1) the prosecutor dropping the charges, 2) the judge dismissing the case or ordering a mistrial, or 3) evidence being excluded from trial. 

Your DUII Attorney will be looking closely to find crucial mistakes. If any are made he/she will use that to your benefit.

Does my DUI attorney represent me at a DMV hearing?

If included, your lawyer will represent you in criminal court and at the DMV suspension hearing. When charged with DUI, you are subject to two separate driver's license suspensions. One is from the DMV and one is from the criminal court if you are convicted. Often, your DUII Lawyer represents you in both the DMV hearing and the criminal case. At the DMV hearing, your lawyer challenges the validity of the stop and the procedures used by the police during the stop. If the testifying officer makes crucial mistakes at the hearing, your lawyer will move to have the DMV case dismissed. Another reason to go to the DMV hearing is to get the testifying officer to commit to testimony on the record.  This testimony can be used to prepare for trial. Hershall offers representation at both the DMV hearing and the criminal case.

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