People often believe that this law only covers "drunk driving." However, the term under the influence means it is illegal to drive with any degree of impairment that is caused by intoxicants. Intoxicants can include "scheduled controlled substances" (which are certain drugs), or alcohol, or a combination of both.
The prosecutor does not need to prove that you were drunk or intoxicated in order to prove the offense of driving under the influence of intoxicants. Instead, you are guilty of the charge if you are merely affected to a noticeable degree by the intoxicant you have consumed if the intoxicant is alcohol, a controlled substance, inhalant or any combination of those intoxicants. The test is whether you lack the clearness of mind and physical control that you normally possess because of the intoxicant you have consumed.
If you are in such a physical condition through the use of medication, drugs or even fatigue, so that you become affected by a lesser amount of intoxicant than would normally affect you, you are still guilty of the charge of driving under the influence of intoxicants if your mental or physical faculties are affected to a noticeable degree.
Driving under the influence of intoxicants occurs when you operate a motor vehicle on a public highway or on premises open to the public. The law applies to areas such as parking lots, transit station parking facilities and school yards, but it does not apply to driving on private land not open to the public. Driving means moving the vehicle.
This law applies to all "vehicles," not just motor vehicles. Although most cases involve an automobile, you can also be convicted of operating a bicycle under the influence, for instance. (A similar law prohibits operating a boat or inner tubing or rafting under the influence.)
The prosecutor usually relies upon the opinion testimony of police officers who have made the arrest. That opinion is usually based upon the officers' observations of any unusual or erratic driving and your appearance after the stop, such as your walking, standing and speaking. The opinion also can be based upon the statements, if any, you make to the officer.
An officer also may ask you to do certain physical tests commonly called "field sobriety tests." If you are warned that your refusal to perform such tests may be admitted in court against you, your refusal to perform such tests may be evidence that is used against you in court. Once an officer has placed you under arrest, he or she is required to read you your constitutional rights before asking you any questions. You have no legal obligation to say anything to the police officer at any time other than to present your driver's license and vehicle registration. Anything you do or say can be used against you at trial. If you are offered a breath test and you ask for a lawyer, the police must let you try to contact a lawyer to discuss whether you should take the breath test. Most lawyers will advise you not to make statements to the police after you have been asked to exit your vehicle.
The prosecutor may use the chemical analysis of your breath or blood to prove you were driving under the influence of intoxicants. This analysis is usually done by testing your breath with an intoxilyzer machine. If you submit to a breath test, you may request a separate blood test or other form of test to measure the alcohol content of your blood. However, the demand for a blood test will not affect the consequences of a refusal to take a breath test.
If you have been arrested for driving under the influence of intoxicants, and you agree to take a breath test, the result generally can be used against you in court. If you refuse to take the test, that evidence could also be used against you. If the test is valid, and it shows a blood alcohol reading as measured by your breath of .08 percent or more by weight of alcohol in the blood, you can be found guilty of driving under the influence of intoxicants whether or not you were driving erratically or showed any visible signs of being under the influence. Even if the result is below .08 percent, the result can still be used in court, along with evidence of your physical condition and behavior, to prove you were under the influence.
To qualify for a diversion program, you must certify by a sworn statement that none of the above grounds for disqualification applies to you. If you are not sure about this, it is crucial that you discuss your situation with a lawyer. It is important to have a discussion with a lawyer that knows what the disqualifications for diversion are and if you have an argument that you are eligible. The prosecutor or the court can check your record to verify you are telling the truth. If you have a prior conviction for DUII but were not represented in that case, it may be possible that the unrepresented conviction will not be held against you.
To enter diversion, you are required to plead "guilty" or "no contest." (Some counties, such as Clackamas, will only accept a guilty plea to enter diversion.) This means you must give up any rights you usually would have to challenge your case, and you will never have a trial or appeal. You will be signing an agreement that will last at least one year. During that year, you will have to complete a substance abuse evaluation and complete any treatment that is recommended. You further agree that you will not operate a vehicle if there are any intoxicants in your system, have an open container of alcohol in your car or consume alcohol during the diversion period. If the judge requires it, you will have to attend a victims' panel. Finally, you will have to pay any associated costs. The fee for your evaluation is $150. The costs for treatment can vary considerably depending on the type of treatment you need. Unless you have health insurance that will cover this, you must pay for all of your treatment. The court will charge a fee (usually $458) to enter diversion. The judge may order you to repay all or part of the cost of a court appointed lawyer. Because the total costs of diversion can be considerable, the judge may waive some of the fees involved, and many courts offer time payments.
If you enter diversion, it is important to fully comply. You have already pled guilty or no contest, so failure to comply will mean you will be convicted. Read all your paperwork carefully. If there is anything you don't understand, be sure to ask your lawyer, court personnel or your treatment provider for clarification.
Diversion does not take care of any license suspension, so do not start driving without checking with the DMV. If you move, be sure to notify your lawyer, the court, the treatment provider and the DMV of your new address.
If you successfully complete diversion, the DUII charge should be dismissed and you will not be convicted. (How the actual dismissal works varies: Some courts require you or your lawyer to file a motion to dismiss to have the diversion dismissed; in some places it happens more automatically.) Even after the dismissal, however, the fact you entered diversion will still appear on your driving record. Your auto insurance rates can be affected by the record of your diversion by an increase in premiums, almost as if you had been convicted of driving under the influence of intoxicants.
Diversion can be expensive and time-consuming. Nonetheless, it is still less expensive than being convicted, and it has many advantages over fighting the case in court. One incentive is that the case will be dismissed so long as you follow all the rules. The risk of being convicted at trial is a big one. A conviction could mean a jail sentence, a large fine, a one-year license suspension, and having a misdemeanor conviction on your record that can never be expunged. A lawyer will usually advise you to enter diversion if you qualify, but you should have a lawyer review your individual situation to determine if diversion is the right choice for you.
Even if you decide to enter diversion, diversion will not take care of any other charges or related problems, such as license suspensions for breath test failure or refusal, insurance issues, employment issues or damages resulting from a collision. An experienced lawyer can help you with all these things and can help you decide what to do. In most (but not all) counties, you must apply for diversion within 30 days of arraignment; the county where you were arrested may use a different time table, so it's important to find out what deadlines apply to your situation. A lawyer will need time to review the police reports and to explain your options to you, so you should contact a lawyer as soon as possible.
Legal editor: Ben Eder, October 2011