Before diving into what happens before/during/after being stopped by police for driving under the influence of intoxicants, it’s important to know the common terms used in this text.
- Driving. This means moving the vehicle. This law applies to all “vehicles,” not just motor vehicles. Although most cases will involve an automobile, you also can be convicted of operating a bicycle under the influence. (A similar, but separate, law prohibits operating a boat, inner tubing, or rafting under the influence.) In Oregon, a vehicle can be anything that transports people that is propelled or powered by any means. This law occurs when you operate a vehicle on a public highway or on a premises open to the public. The law applies to areas such as parking lots, transit station parking facilities, and school yards. It does not apply to driving on private land not open to the public.
- Under the Influence. This means it is illegal to drive with any degree of impairment that is caused by intoxicants. A prosecutor does not need to prove that you were “drunk” or “intoxicated” to prove you are guilty of driving under the influence of intoxicants. You are guilty of the charge if your physical control or mental awareness while driving are adversely affected by the intoxicant you took.
- Of Intoxicants. Intoxicants can include “scheduled controlled substances” (which are certain drugs), or alcohol, or a combination of both. Being tired or taking medications that may make intoxicants affect you more than you usual is not a defense. You are still guilty if your mental or physical faculties are affected to a noticeable degree.
What Happens After an Officer Pulls Me Over?
You have no legal obligation to say anything to the police officer other than to present your driver’s license and vehicle registration. Anything you do or say can be used against you at trial. Most lawyers will advise you not to talk to the police and to ask for an attorney after you have been asked to exit your vehicle.
There are three types of tests that may be given to determine your impairment
- Standardized Field Sobriety Tests. These are certain physical tests. They typically involve following directions, tracking an object with your eyes and maintaining balance. You may be warned that if you choose not to do the tests, then that may be used as evidence in court against you.
- Breath Test. This is a chemical analysis of your breath using an intoxilyzer machine. If the breath test is valid, and it shows a blood alcohol reading as measured by your breath of .08 percent or more, you can be found guilty of driving under the influence of intoxicants. This is true whether or not you were driving erratically or showed any visible signs of being under the influence. Even if the breath test result is below .08 percent, the result still may be used in court. Also, if you refuse a breath test, that can be used against you in court. Plus, refusing means you may face consequences under Oregon’s Implied Consent laws.
- Blood Test. You may ask for a separate blood test or other form of test to measure how much alcohol is in your blood. A blood test is sent to a crime lab for testing. Asking for a blood test will not affect the consequences of a refusal to take a breath test. If the blood test is valid and it shows a blood alcohol reading of .08 percent or more of weight of alcohol in the blood, you can be found guilty of driving under the influence of intoxicants. The blood test is similar to the breath one in that a test below 0.8 percent still may be used in court.
If a police officer believes you are under the influence of a controlled substance rather than alcohol, a Drug Recognition Expert (DRE) officer is needed. This person will conduct an evaluation using a 12-step protocol. The results of this evaluation and any statements made during it, can be used as evidence against you. This evaluation also requires a urine sample. If you refuse to give such a sample, you may face consequences under Oregon’s Implied Consent laws (just like refusing a breath test).
If the officer decides to place you under arrest, the officer must read you your constitutional rights before asking you any questions.
Click here for more details about your rights when you are arrested.
Making the Case Against You
The prosecutor usually will rely upon the opinion testimony of police officers who have made the arrest. The officers’ opinions may include things they observed, such as if they noticed unusual driving. They also will describe your appearance and conduct during and after the stop. For example, an officer will remark upon such things as your speech, your smell, how you walk, how you stand, and your overall appearance. The opinion also can be based upon any statements you make.
The prosecutor may use the chemical analysis of your breath or blood to prove you were driving under the influence of intoxicants.
Driving under the influence of intoxicants has extremely serious consequences. If found guilty on a first offense, you could be fined up to $6,250; the minimum fine is $1,000 or $2,000, depending on blood alcohol levels. DUII is usually a Class A misdemeanor (unless you have two prior convictions for DUII in the past 10 years). This means you could receive up to 364 days in the county jail. At a minimum, the judge must impose 48 hours in jail or 80 hours of community service for a misdemeanor DUII conviction. The judge is required to suspend your license for one year. This is in addition to any other suspension you may already have (such as for breath test failure or refusal under Implied Consent law).
You must submit to an alcohol evaluation. It costs $150. You also must complete any treatment program recommended by the evaluator. You pay for this out of pocket. It is also likely that you will have to attend a victim impact panel. Plus, you may need to install an interlock breath test device on your car even after your suspension period has ended.
The court may also order:
- A period of probation;
- That you pay fees and assessments that can exceed $400;
- That you repay part or all of any court-appointed attorney fees;
- That you obey all laws during the probation period;
- That you not drink alcohol or use or possess drugs unless prescribed by a doctor; and/or
- That you pay restitution if property is damaged.
A special program called “diversion” is available to most first offenders. Diversion takes the case out of the traditional criminal justice system. You agree not to contest your case. You also agree to undergo substance abuse evaluation and treatment, pay the court fines, and to not consume alcohol for the one year of diversion. By doing this, you can avoid a conviction for DUII. The diversion program requires you to put an Ignition Interlock Device (IID) on your vehicle in order to drive while in diversion.
Most first offenders qualify for diversion UNLESS:
- You failed to appear at your scheduled arraignment without good cause.
- You have another driving under the influence of intoxicants charge pending or any convictions for any similar offenses in the past 15 years in any state; or
- You are in diversion now or have participated in a diversion or similar treatment program that was used to resolve a court case during the past 15 years; or
- You have been convicted within the last 15 years of any degree of manslaughter, murder, criminally negligent homicide, assault involving the use of a motor vehicle or driving under the influence of intoxicants; or
- Your DUII offense involved an accident resulting in physical injury to another person; or
- You were driving a commercial vehicle or you held a commercial driver’s license at the time of the offense (regardless of what type of vehicle you drove).
To qualify for a diversion program, you must certify by a sworn statement that none of the above grounds for disqualification applies to you. 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. 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. In some cases, a person can be admitted into the diversion program after a contested hearing.
To enter diversion, you are required to plead “guilty” or “no contest.” (Some counties 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. There never will be 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. 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 ($490) 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 payment plans.
If you enter diversion, it is important to fully comply. You already have pleaded guilty or no contest, so failure to comply means 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. If you move, be sure to notify your lawyer, the court, the treatment provider, and the DMV of your new address.
Diversion will not impose or relieve you of any license suspension. A person who is arrested for a DUII typically has an administrative action against their driver’s license under Oregon Implied Consent laws. The result of that action is completely independent of what happens to your license in the criminal justice system. Many people convicted of a DUII will have multiple license suspensions running at the same time. It is important you discuss these matters with an attorney or sort out any driver’s license issues with the DMV before you resume driving.
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 other counties the courts will process the paperwork on its own. Even after the dismissal, you entering diversion will still appear on your driving record. Your auto insurance rates can be affected by the record of your diversion. This may result in 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. It is still less expensive than being convicted, and has many advantages over fighting the case in court. One incentive is that the case will be dismissed as long as you follow all the rules. The risk of being convicted at trial is usually significant. 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.
The diversion program will not resolve any other pending criminal charges or related problems, such as license suspensions for breath test failure or refusal, hardship permits, insurance issues, civil lawsuits, or employment issues. An experienced lawyer can help you with all these things and help you decide which options are best for you. 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 timetable, 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. Contact a lawyer as soon as possible.
Legal editor: Richard L. McBreen III, September 2020