Am I Eligible For DUI Diversion?

As a DUI Lawyer, that’s a question I get a lot. A lot of people think that you automatically get diversion for your first DUI in Oregon. It’s not quite that simple.

First of all, you can’t have had a DUI for at least 15 years. And that means anywhere. If you got a DUI in another state, that will still count against and prohibit you from doing diversion. There are slight exceptions to this, but that’s for another post.

Next, you can’t have participated in a similar drug and alcohol court ordered treatment program in the last 15 years. So if you participated in a treatment program that was court ordered from some previous case, like a drug court program, that will likely exclude you. Now this only applies to court ordered treatment. It doesn’t mean that if you went to treatment on your own in the past that you’d be excluded from diversion.

Third, you can’t have been convicted or have any pending charges of murder, manslaughter, vehicular assault, and other serious crimes.

Fourth, you can’t have a Commercial Driver’s License (CDL) or have gotten your DUI while driving a commercial motor vehicle. Sometimes people haven’t used their CDL in years and then they get a DUI only to find out that they’re excluded from diversion due to the CDL they still hold.

Finally, you can’t have injured or killed anyone as a result of your DUI. This is another common way for people to be excluded from diversion.

As I alluded to earlier, it is possible to litigate some of these issues and have a contested diversion hearing. It’s not uncommon for a prosecutor to object to diversion but to still get a client in to diversion. In fact, it happens all the time.

Oregon Drug Trafficking Report Could Increase Risk of Arrest

According to statistics from the Federal Bureau of Prisons, more than half of all inmates in federal penitentiaries are incarcerated for drug offenses. In 1970, just months before the term “War on Drugs” proliferated in the media and politicians began a decades long public relations campaign against drug use, just 16 percent of federal prisoners were doing time because of a drug offense.

When it comes to your risk of arrest, prosecution and punishment, public perception matters. When media sources target a perceived problem and the public concern over it grows, voters are more apt to get behind officials who will throw money at it. In the context of drug charges, more funding means more arrests, whatever the real impact of drugs in a community. With a new report from the state announcing a perceived expansion of drug activity in Oregon, your odds of facing drug charges in an overzealous drug enforcement environment could be going up.

Report says more trafficking in meth, heroin and prescription drugs expected in Oregon

Produced by the Oregon High Intensity Drug Trafficking Areas program, the new report is entitled, “Threat Assessment and Counter-Drug Strategy.” On June 11, the state released the report to the public, disseminating some dire predictions.

Traffic of methamphetamine, prescription drugs and heroin is expected to continue to increase, according to the authors of the report. Additionally, the report states that abuse of Oregon’s medical marijuana program is also likely to increase. In terms of the proportion of state residents using illegal drugs, the report puts Oregon as fourth in the nation.

Police in Oregon did seize 540 pounds of crystal meth last year through highway stops, a substantial increase from the 157 pounds seized three years earlier. But, while Oregon police say they identified 81 drug trafficking organizations last year, they have only identified nine during the first five months of 2014. And, while police opened over 4,000 drug cases in the regions covered by the High Intensity Drug Trafficking Areas program last year, they expect the total to drop to 3,200 next year.

Ensure judges and jurors draw their own conclusions: Get an experienced defense attorney

When the number of new drug cases being opened and the number of drug trafficking organizations being discovered by the police is on the decline, one might logically expect that means drug activity within the state is staying stable or even declining. But when the numbers are couched in no uncertain terms by conclusions that drug trafficking in Oregon is increasing, the nuances of the data may be easily lost in sensational headlines.

As a government program that is more likely to get funded when drugs are perceived to be a major problem, the High Intensity Drug Trafficking Areas program has obvious incentives to frame a trickle of drugs as a drug epidemic in its own report. But with such a viewpoint being pushed, if you are arrested on drug charges, you could be facing a criminal justice system amped up in efforts to crush a perceived problem.

If you have been arrested for a drug crime, do not let yourself be made an example of, and do not let public fear mongering affect your future or your freedom. Get in touch with an experienced Oregon criminal defense lawyer today, and fight the charges against you.

Oregon DUII Diversion Program Can Help you Defeat a Drunk Driving Charge

In Oregon, driving under the influence of intoxicants is a serious charge. A DUII conviction can have serious repercussions on your future. However, if you are eligible and successfully complete a DUII diversion program, you may be able to get your drunk driving charge dismissed.

Eligibility for DUII diversion

In Oregon, there are many prerequisites for eligibility to participate in DUII diversion. Some of the most important include:

  • No prior convictions for a felony DUII offense
  • No other pending charges for intoxicated driving or other serious vehicular offenses such as vehicular homicide
  • No prior convictions for any intoxicated driving offense within the preceding 15 years
  • The alleged DUII offense did not result in death or physical injury to another person
  • The alleged DUII offense did not occur while driving a commercial motor vehicle or while holding a commercial driver’s license

You may forfeit your eligibility for DUII diversion if you do not proceed in a timely fashion. You must appear in court for you first appearance on the date scheduled, or convince the court to excuse your absence. You must also petition for DUII diversion within 30 days of first appearing in court, unless you can convince the court that there is good cause for the delay.

Completing the DUII diversion program

To complete the DUII diversion program, you must submit to a drug and alcohol abuse assessment. Should the court find that you are in need of alcohol or drug treatment, the assessment agency will structure a recommended treatment program which you must complete.

Another requirement is attending a victim impact panel. A victim impact panel provides a direct experience with those whose lives have been harmed by drunk driving.

The court will also require you to comply with all state laws as they apply to the use of intoxicants, will prohibit you from using alcohol or any other intoxicating drug while the diversion agreement is in effect (with the exception of substances taken in accordance with valid medical instruction or wine provided as part of a religious service), and will order that you install an ignition interlock (a device that tests a driver’s breath for alcohol) in any vehicles you operate while participating in the diversion program. You must also keep the court advised of any changes to your address during the diversion program.

Finally, you must pay all applicable fees to complete the diversion program. Fees may include a filing fee payable to the court, paying costs for the alcohol and drug abuse assessment, paying for the costs of recommended treatment, a victim impact panel participation fee, and installation, maintenance and leasing fees for any ignition interlock devices to be used during the diversion program. Some of these fees may be waived or reduced if you have an inability to pay.

Contact an Oregon DUII lawyer to get into a diversion program

It can be challenging to complete a DUII diversion program. But, in most cases, it is well worth your time, effort and expense. Upon the successful completion of the DUII diversion program, your drunk driving charge will be dismissed.

Talk to an Oregon drunk driving defense lawyer to learn more about DUII diversion. Your attorney can further explain the potential benefits and can help you get into a DUII diversion program. Get in touch with a DUII attorney today, and protect your future from the stain of a drunk driving conviction.

Facebook Flub: Online Post Leads to an Arrest

A motorist is typically busted for drunk driving on the streets. In many cases, a routine traffic stop can evolve into an investigation. However, what if a person was under the influence of alcohol while driving, made it home, and was subsequently busted after alerting friends of the illegal whereabouts? This can happen. It is called Facebook.

An arrest after a Facebook confession

According to The Oregonian, in early 2013, an Oregon motorist crashed into two cars while driving under the influence of alcohol. After the accidents, the driver fled the scene; however, he left small pieces of his damaged vehicle behind. Nevertheless, the man ultimately made it back to his home the night of the incidents.

Perhaps the buzz of this young motorist had not worn off, because that same night, the driver posted via Facebook – to 600 of his buddies – that he drove drunk and hit two vehicles earlier that night.

At the time, the police had already been in the process of investigating the hit and runs. When an officer received a Facebook tip and phone message regarding the motorist’s post, investigators moved in on the man at his home. When they arrived, there were several indications of damage, consistent with the hit and run, which were on the suspect’s car.

What many individuals do not know is that police in Oregon have a presence on social media. Every time someone posts something in an online venue, authorities may be looking. Information is not as private as it appears.

An investigation beyond the road

This story serves as a lesson and reminder that a criminal investigation for drunk driving does not have to begin on the road. Police use varied types of evidence to pin a suspect to illegal activity.

In an age when individuals document and recount everything in the online world, officers are using this type of evidence more and more. Everything is exact and tracked in the electronic age. Text messages, Twitter, Facebook, Instagram and other online sites can place an individual at a particular place, and at a particular time. Moreover, pictures and posts can be suggestive of illegal activity, but incorrect. For this reason, individuals should be especially cautious about posting material online.

If you have been charged with a serious crime, it may help to have a criminal defense attorney by your side. A lawyer can assess all evidence that is brought against you in your matter.

Court Throws Out DUI Conviction of Sleep-Driving Man

In a recent case, the Oregon Supreme Court threw out the DUI conviction of a Portland man who was “sleep driving.”

Man did not voluntarily get behind the wheel

According to The Oregonian, the Court stated that the man should have been allowed to argue to the jury that he did not voluntarily get behind the wheel, and was therefore not responsible for driving with an illegal blood alcohol concentration. Since he did not get a chance to make this argument, the Court ruled that the man is entitled to a new trial.

The man’s case is based on an incident that occurred in 2008 when the man walked to a restaurant and had drinks with friends. A friend later gave the man a ride home. The man says later that night he got into his car and began driving while he was asleep. The man was a known sleepwalker and reported sleep-walking around his home on prior occasions.

During this particular incident, a police officer pulled the man over after noticing the vehicle engaging in traffic violations. The man acknowledged that he had been drinking and was charged with a DUI. However, he never admitted to voluntarily or consciously getting behind the wheel of his car.

He planned to present this defense at trial, and a local doctor was prepared to testify that sleep-driving was unconscious behavior. The judge would not allow the sleep-walking evidence to be presented.

An Oregon general criminal statute states that in order to be held responsible for a crime, a defendant must commit a “voluntary act.” The Oregon Supreme Court referred to this statute when making its decision to overturn the man’s conviction.

Decision may influence current DUI law

The decision could have a significant impact on available DUI defenses in Oregon. Previously, judges assumed that it was only necessary for prosecutors to show that an individual charged with a DUI was driving with a BAC of .08 percent or higher.

The ruling may now allow defendants a wider range of possible defenses. The prospect of additional defenses may be beneficial to individuals who are charged with a DUI, since a DUI conviction currently comes with severe penalties. Along with substantial fines and mandatory jail time, a driver’s license is automatically suspended for 1 year with a first DUI conviction, and three years year for a subsequent conviction. Additionally, mandatory drug or alcohol treatment may be imposed and an ignition interlock device may be required.

A DUI conviction comes with numerous negative consequences that can have a severe and permanent impact on an individual’s life. An individual charged with a DUI can benefit by speaking with an experienced DUI attorney. A qualified attorney can evaluate all evidence obtained by the prosecution and help prepare a solid defense.

Supreme Court Hears Arguments in DUI Blood Test Case

The United States Supreme court recently heard oral arguments in a case that will affect drivers’ Fourth Amendment rights against unlawful searches and seizures. Specifically, the issue in the case, Missouri v. McNeely is whether law enforcement must obtain a warrant before ordering a blood test for alcohol.

Background of Case

The facts of the case began in October 2010 when a Missouri highway patrol officer stopped Tyler McNeely for speeding. During the stop, the officer suspected that McNeely had been drinking. As a result, the officer ordered McNeely to perform a series of field sobriety tests, all of which McNeely failed.

Having failed the field tests, the officer asked McNeely to submit to a Breathalyzer test, which he refused. As a result, the officer transported him to a hospital and asked him to submit to a blood test, which he also refused. The officer then ordered the hospital staff to take a blood sample without McNeely’s consent, even though a warrant was not first obtained. The test showed that McNeely’s blood alcohol concentration was more than twice the legal limit. As a result, McNeely was charged with driving under the influence (DUI).

Before trial, McNeely’s attorney made a motion to exclude the results of the blood test, because it was conducted without his client’s consent and without a warrant. The trial court agreed, but its decision was overturned on appeal. The Missouri Supreme Court agreed with the trial court that a warrant was necessary and threw out the blood evidence. The State of Missouri appealed the issue to the United States Supreme Court.

The Supreme Court’s decision will likely depend on its interpretation of its own 1966 decision, Schmerber v. California, which the Missouri Court of Appeals relied on to overturn the trial court. In this decision, the Supreme Court upheld the admissibility of a blood sample without a warrant. The court ruled that a warrant was not always necessary, as the blood alcohol concentration in the bloodstream diminishes over time as the alcohol is metabolized. Therefore, police are justified in collecting a sample without a warrant, as any delay would lead to a possible destruction of evidence.

At oral argument, justices seemed skeptical of Missouri’s attempt to take blood evidence without a warrant, which may signal that the court may overrule its own previous decision in Schmerber. However, the justices’ conduct during oral argument does not always indicate how they will ultimately vote. The decision is expected later this spring.

Consult a criminal defense attorney

If you or a loved one is charged with driving under the influence, contact a criminal defense attorney. An attorney can assess your case and ensure that your rights are protected.

Federal Agency: Mandate Ignition Interlock Devices for All Drunk Drivers

The National Highway Traffic Safety Administration is a federal agency dedicated to improving motor vehicle and traffic safety. The NHTSA promotes its mission by setting safety performance standards for motor vehicles, distributing grants to state and local governments, and making recommendations to lawmaking bodies based on the agency’s research.

In December, 2012, the NHTSA made an unprecedented recommendation to state governments: require the use of ignition interlock devices by everyone convicted of a drunk driving offense, even first-time offenders. An ignition interlock device is a machine that takes and test breath samples from drivers; if the sample tests positive for alcohol, the vehicle’s engine is automatically disabled and the authorities are notified. Currently, 17 states already have laws requiring the use of ignition interlock devices by all convicted drunk drivers.

Ignition interlock is required for DUI diversion, conviction in Oregon

If you are charged with driving under the influence of intoxicants in Oregon (“DUI” or “DUII” for short), an ignition interlock could be in your future. Although a strong legal defense may help you get charges dismissed, a conviction means you’ll wind up with an ignition interlock even for a first-time offense.

Under Oregon’s DUII diversion program, you make an agreement with the court that will ultimately lead to the dismissal of your charges if you comply with the court’s orders. Typically, a diversion requirement for a first-time DUI offender lasts a year and requires you to pay fines, attend a victim impact panel, and obtain alcohol evaluation and treatment; you will also have to install an approved ignition interlock device on all the vehicles you operate.

Diversion can be expensive, and certainly takes some effort – but it also helps you avoid the risks of trial. If you are convicted at trial, you will still have to face the possibility of an ignition interlock, along with other more serious sanctions.

If you are convicted of DUII, your regular driver license will be suspended for a period of time. In order to obtain a hardship permit – which will allow you to legally drive during a period of regular license suspension in order to get to and from work, drive on the job, seek employment, get required medical treatment or participate in a substance abuse rehabilitation program – you will have to install an ignition interlock on any vehicles you drive. Whether or not you pursue a hardship permit, after your regular DUII license suspension ends, you must maintain an ignition interlock on vehicles you drive for a certain period of time: one year for first-time offenses, two years for second and subsequent offenses.

Defend against DUI charges by contacting an attorney

If you have been charged with drunk driving in Oregon, the only way to completely eliminate the possibility of an ignition interlock is to get your charges dropped. Talk to a DUII defense attorney today to explore your legal options.

Space Age Alcohol Detection System Funded In 2012 Transportation Bill

Most drivers are aware that a DUI conviction can lead to the installation of an ignition interlock device in their vehicle. An ignition interlock, of course, will not allow a vehicle to start unless the driver breathes into the device and passes a test for alcohol consumption; the driver may also be required to periodically provide a breath sample while the engine is in operation.

The consequences of a DUI arrest can be harsh if you are ultimately convicted, and an ignition interlock may be the least of your worries. But forget alcohol testing as a consequence: some in Congress are pushing for the development of a new technology that would subject all drivers to alcohol testing, to the tune of 24 million taxpayer dollars.

Driver Alcohol Detection System for Safety Would Be Everyman Ignition Interlock

Ignition interlocks are clunky, aftermarket systems in which drivers must blow into a tube to start their vehicles. As a required component in vehicles, no one is seriously optimistic about the reception such an obtrusive system would receive from the American public as a standard vehicle component.

But what about a discrete, sensor-based alcohol detection technology wired directly into the electronics system of the vehicle? No tubes, no clumsy equipment, just a seamlessly integrated system that would prevent drivers over the legal limit from starting their vehicles.

A technology known as the Driver Alcohol Detection System for Safety, or DADSS, is now being developed in an effort to eliminate invasiveness from behind the wheel alcohol detection. Two different conceptions of the technology – one that would automatically measure alcohol in the driver’s breath and another that would utilize touch technology to take a reading from points of contact with the driver’s skin – are being explored by researchers working with the Alliance of Automobile Manufacturers and the National Highway Traffic Safety Administration.

The NHTSA insists it has no current plans to mandate DADSS for all vehicles (an easy promise to make, considering the technology is not expected to hit the market for at least eight years), and proponents claim that DADSS systems would not be calibrated to lock out a driver unless he or she was over the legal blood alcohol limit of 0.08. However, some critics are skeptical of cars that could potentially override the driver’s commands and fear a slippery slope towards zero tolerance for alcohol consumption. Others are simply weary of excessive spending; transportation legislation currently in Congress earmarks $24 million over the next two years for the development of DADSS.

With New Technology Years Off, Heavy Penalties Still Used To Prevent Drunk Driving

Even though it is far from implementation, DADSS is certainly breathing new life into the national drunk driving dialogue. But, until we can rely on advanced technology to combat impaired driving, the draconian penalties for DUI will continue to be the government’s tool of choice, to the detriment of those convicted of drunk driving. If you are facing a drunk driving charge, protect your rights and your future by contacting a DUI defense attorney today.

Oregon Driver Arrested On Suspicion of Being Drunk – Had Kids in the Car

Samuel Lee Sanders, 37, was arrested in early April on a laundry list of charges. Police in Washington County booked Sanders on suspicion of driving under the influence of intoxicants (DUII), reckless endangering, reckless driving, refusal of a breath test and driving with a suspended license.

Significantly, Sanders had two young children with him in the car at the time of his arrest. If he is unable to stage a successful Oregon drunk driving defense, this could mean substantially increased penalties.

Reckless Endangering Charge Tacked On For DUII With Children in the Car

Under Oregon law, reckless endangering of another person is committed by engaging in conduct that creates a substantial risk of injury to another person. Often, a reckless endangering charge accompanies drunk driving allegations.

There are generally three scenarios in which a DUII case can also include reckless endangering: if you were in a car accident, if you almost hit someone else or if you had a child in the vehicle at the time of your arrest. Remember, for a reckless endangering charge to stick, the other person does not actually have to have been harmed, only placed at risk of harm; if you are found to have caused actual injury to someone else as a result of drunk driving, you may be charged with assault.

Like a first DUII offense, reckless endangering is a Class A misdemeanor. When it comes about from operation of a motor vehicle, it can carry a fine of more than $6,000, a jail term and a period of drivers’ license suspension that increases with each subsequent offense.

Any time you are charged with DUII in Oregon, it is a serious matter. But, when there is a child with you at the time of arrest, you potentially face even greater penalties. If you were arrested for DUII with a minor in the vehicle, protect yourself: contact an experienced Portland DUII attorney today and begin building a strong legal defense.