If you or a loved one have been arrested or cited for DUII, it’s very possible that you’ve never been in trouble before. If this is your first DUII, you want to know what’s going to happen, and what the possible penalties and consequences are.
You might have heard about diversion. While you can find information here or on other websites, there is no substitute for talking with an experienced DUII attorney. Each case is unique, and only an experienced DUII attorney can correctly apply your fact situation to the laws. If you are in this situation, then you’ve come to the right place. I can help.
Two instances in which this can happen are:
When the police believe that a period of time has passed between your driving and the arrest, which resulted in a lowering of your blood alcohol level (due to the passage of time) and;
When the police (and District Attorney) believe that a lower level of alcohol affected your driving to a noticeable and perceptible degree.
This can even apply to prescribed medication. If there is any indication that a person’s prescribed medication is affecting their driving. and if the medication shows up in the driver’s blood or urine, then aggressive police officers and prosecutors can charge that driver with DUII. The State has both of them on its side, let me be on your side.
An arrest for DUII initiates two separate but related legal processes, both of which require an experienced DUII attorney. The first (administrative process) is extremely time sensitive. The second is the charge you face as a defendant in criminal court, usually in a County Circuit Court (and occasionally in a city municipal court).
When arrested for DUI in Gresham or Portland, you also face a potential license suspension if you failed or the officer claims that you refused a breath sample. This is an administrative process with DMV.
The other legal process, and the most serious, is facing the charge of DUII (and possibly other companion criminal charges like Reckless Driving) in criminal court. This is where you end up (1) going to trial, (2) pleading guilty or no contest and entering Diversion, or (3) pleading guilty or no contest pursuant to plea negations with the prosecutor.
You have 10 days from the date of your arrest to request a hearing to challenge the suspension of your driver’s license. It is only within this 10 day time period that you have the right to request the hearing. There are very important reasons to request this hearing, and almost no reason not to.
The DMV hearing is not about guilt or innocence, rather it is regarding whether the license suspension was legally imposed based on (1) the legality of the traffic stop, (2) the legality of the officer’s investigation of the stop as a DUII), (3) the legality of the arrest and (4) the legality of the officer’s processing of your breath sample.
Even if the license suspension is upheld following the DMV hearing, the hearing has given me the opportunity to cross examine the police officer while he or she is under oath. This is a very unique opportunity in Oregon criminal law, and allows me to break down and dissect the officer’s sworn statements in advance of the criminal trial. In some cases, problems that the State has with their case against you comes to light through this process. The officer’s testimony can be transcribed and used at trial to call into question the legality of the stop, arrest and breath sample process. In some cases, it can be used to try and suppress evidence, and in others to argue to the jury that you are not guilty.
It doesn’t matter what city you were in when you were charged with a DUII: Gresham, Damascus, Boring, Kelso, Milwaukie, Clackamas, Gladstone, Lake Oswego, West Linn, Oregon City, Hillsboro, Beaverton, Portland or another city surrounding the Portland area. Oregon law treats your case the same.
The first court appearance following your arrest is called an arraignment. If poassible, you should retain an attorney before your arraignment. The main reason for doing this is so that I can request the DMV hearing for you within the required 10 days. In addition, in most counties I can appear at the arraignment on your behalf, and have your appearance waived.
Oregon’s DUII Diversion Program allows drivers to enter diversion and avoid a conviction if they comply with the diversion requirements.
The diversion program is typically 12 months long and requires drug and/or alcohol treatment, attendance at the Victim’s Panel, and some other requirements. Many people facing their first DUII charge enter diversion because it allows them to avoid a conviction, avoid jail, reduced fines and no criminal court imposed license suspension.
You must enter diversion within 30 days of the date of arraignment. Therefore, at arraignment your attorney will typically schedule a diversion entry hearing sometime within the next 30 days. This will give your attorney time to obtain discovery (police reports, video and audio, etc.) from the State and cross-examine the arresting officer at the DMV hearing.
If someone fails diversion, then they will be sentenced for the crime of DUII. Failing diversion can result from failing to comply with diversion requirements. You do have an opportunity to challenge termination from diversion.
If convicted of a Misdemeanor DUII you could be fined $6,250 and could serve up to one year in jail. Most likely if this is your first or second DUII the court will order fines and jail time significantly less than the maximum penalties.
If you are not eligible for diversion you will either prepare for trial, or plead guilty or no contest pursuant to settlement negotiations between your attorney and the District Attorney’s Office. Multnomah County has a first-time DUII conviction court program (expedited DUII court) for people that are not eligible for diversion. You need an experienced attorney to help you decide what your best options are.
The Oregon-based DUII defense and family law firm of attorney Ken A. Kissir offers experience and qualified legal advice for all DUII and family law matters. He represents clients dealing with DUII citations and arrests, in Gresham, Oregon and the surrounding Portland Metro area. He is licensed in Oregon, Washington and Federal Courts. Ken Kissir practices in Portland, Gresham, Oregon City, Fairview, Troutdale, Multnomah County, Clackamas County, Washington County, and other locations.