What does the State have to prove for me to be guilty of a DUII?
There are two main components to receiving a DUII conviction.
- The first is that you were operating a vehicle upon a road or premises open to the public (such as a parking lot).
- This is often proved by an officer or another person seeing you driving the vehicle.
- Sometimes it is proved if a person admits to driving the vehicle.
- The second condition is that they must show that you were under the influence of alcohol or another intoxicant.
- They can try to prove this by obtaining a blood alcohol content reading from a breathalyzer test of .08 or greater.
- They can also try to prove this by showing that a persons ability to drive was negatively impacted to a noticeable and perceptible degree even if the blood alcohol reading was not obtained or was below a .08.
- They can also try to prove that a person was under the influence of another intoxicant by completing a Drug Recognition Exam and using lab tests to show a person was using an intoxicant other than alcohol.
Do I have to speak to the police when they are questioning me?
No. You have the right to remain silent. You do not have to answer any questions. This is an important right to exercise because anything you do say could be used against you in court.
Do I have to let the police search my car?
No. You have the right to refuse to consent to a search whether it be of your car, your home, or yourself. There are still ways in which the police could search your car, for example, if they get a warrant or as part of an inventory if your car is being towed. However, you do not have to make their job easier by allowing them to search without a warrant.
Can I have an attorney present?
Anyone under arrest is entitled to have an attorney present for any custodial interrogation (questioning by police officers while you are arrested). If you tell the officer(s) that you won’t answer questions without an attorney present, then they have to stop questioning you. You have the right to hire an attorney of your choice. If you cannot afford an attorney, one will be appointed to represent you when you make your first court appearance.
What happens if I get convicted of a DUII?
There are many consequences for being convicted of a DUII. Several of them are dependent upon how many prior DUII’s you have on your record.
For a first conviction (not a Diversion), a person will likely be placed on probation. As conditions of their probation they would get, at minimum, either two days of jail or 80 hours of community service. They would also face a fine of $1,000 to $1,500 dollars and a drivers license suspension of one year. They would have to attend a Victims Impact Panel and be evaluated for alcohol treatment and then successfully complete the treatment while also being prohibited from possessing or using alcohol while on probation.
These penalties are increased, some significantly, for additional DUII convictions. Please call me to discuss your specific situation if you are facing a conviction other than your first.
What happens to my drivers license if I get arrested or convicted of a DUII?
Once a person is arrested for a DUII, there is one type of suspension that could occur, regardless of if you enter Diversion or get convicted for a DUII. The DMV is going to attempt to suspend your license for either failing or refusing to take the breathalyzer test. You do have the opportunity to contest this suspension by having a hearing in front of an administrative law judge. This hearing must be requested within 10 days of your arrest.
If you are able, and choose, to enter Diversion, there is no additional license suspension other than the DMV suspension regarding the breathalyzer.
If you are convicted for a DUII, your driver’s license will be suspended again, in addition to the breathalyzer suspension. The length of this suspension is impacted by your personal history with DUII convictions. The minimum is a one year suspension and the maximum is a lifetime revocation.
What happens if I refuse to take Field Sobriety Tests?
There is no requirement that you submit to field sobriety tests, such as walking a straight line or standing on one leg, and so there are no penalties for refusing. However, if you do refuse to take the tests, the officer(s) are supposed to give you a set of warnings about your refusal. As long as they warn you appropriately, if your case proceeds to trial, it is likely that the government will be able to tell the jury that you refused the tests and the jury could hold that refusal against you.
What happens if I refuse to take a Breathalyzer Test?
Oregon has separate penalties for failing to take a breath test and refusing to take a breath test. The initial suspensions are for 90 days if you fail the breathalyzer test, and 1 year if you refuse the breathalyzer test. There are also implications to your ability to apply for a hardship permit. If you fail the breathalyzer test you must wait 30 days before you are eligible for a hardship permit. If you refuse to take the breathalyzer test then you must wait 90 days before you are eligible for a hardship permit. Under certain circumstances (related to such things as your personal history of DUII’s, breath test failures or refusals, and previous participation in a Diversion program) the length of these suspensions, and the waiting period for a hardship permit, are significantly increased. The State will also try to use your refusal to take the breathalyzer against you in Court if you take your case to trial.