Information and Frequently Asked Questions About
DUI/DWI Cases from a Former Deputy District Attorney
Click here to contact Drew K. Baumchen to
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General Information about DUI/DWI in Oregon
DUI and DWI are terms for what is commonly referred to as "drunk driving." In the State of Oregon, the offense is technically called Driving Under the Influence of Intoxicants, or DUII. The legal limit in Oregon is .08% blood alcohol content (BAC). Usually, BAC is measured by taking a breath test with a breathalyzer machine.
In Oregon, a person can still be charged with Driving Under the Influence even if there was no breath test in the case. Often, the reason for this is that the defendant was not willing or refused to take a breath test. Sometimes, however, people can be physically or medically unable to take a breath test and, in some cases, the police do not ever give the defendant an opportunity to take a breath test. So, aside from the legal limit of .08%, a person can be found guilty of DUII if it is proven that they were under the influence of alcohol or drugs when they were driving a vehicle. Under Oregon's DUI law, "under the influence" means that a person's ability to drive was impaired by alcohol or drugs. Unfortunately, "impaired" is a term that can be broadly interpreted (or mis-interpreted). The police and the prosecution will usually try to say that a person was impaired or under the influence because of the signs or "clues" they exhibited. What they don't want to admit is that these signs and clues don't necessarily mean that the person is under the influence or impaired. An experienced DUI attorney knows the difference between signs that a person has been drinking and signs of actual impairment or intoxication and will point out these differences in your defense.
Another way that the police and government will try to prove that someone was under the influence while driving is by what are called "field sobriety tests" or FST's. Field sobriety tests are what police officers are trained to use when they have stopped a person on the side of the road or highway to determine whether that person may be under the influence of drugs or alcohol. The problem with this system is that usually, by the time a police officer has asked a person to perform these tests, they have probably already made up their mind about the person. The field sobriety tests are sometimes nothing more than an opportunity for the officer to find what he or she was already looking for. Fortunately, an experienced DUI attorney knows how field sobriety tests work and how to properly challenge them in court.
A conviction for DUII can have very serious consequences for your life, your work, and your ability to drive. Under Oregon law, a first-time DUII conviction has the following mandatory minimum penalties: a $1,000 fine, 2 days in jail or 80 hours of community service, a mandatory alcohol or drug education or treatment program, a one-year driver's license suspension, required attendance at a victims' impact panel, and the required installation of an IID in order to drive after your license is reinstated. However, an experienced DUI lawyer can help you fight your case and avoid a DUI conviction, and the serious consequences that follow.
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Information About Oregon's DUII Diversion Program
In Oregon, most first-time DUI offenders are eligible for the Diversion program. Diversion is an opportunity to avoid a conviction for DUI without having to fight your case in court. In Diversion, you will have to plead guilty to your DUII charge but, in exchange for completing the program, you can have the charge completely dismissed. Diversion is a year-long program and generally involves taking some alcohol and/or drug education classes, attending a victims' impact panel, and paying a Diversion Fee to the court. There is also a requirement that you not drive a car after drinking ANY alcohol (regardless of your BAC).
While the DUII Diversion Program is a great way to avoid a DUI conviction, there can be serious consequences for failing to complete the program. Often, prosecutors and judges are reluctant to give second-chances for people who do not succeed in diversion. And since you will have already pleaded guilty in order to get into diversion, you have given up your right to fight the facts of your case. Because of these serious consequences, and because not everyone is eligible for diversion, you should contact an experienced DUI attorney before trying to enter into the Diversion Program.
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Information About Breathalyzer Tests
As mentioned above, most DUI cases involve a breath test unless the defendant refused to take one or did not have an opportunity to. People commonly ask whether or not they should take a breath test if they are arrested or being investigated for DUII. If you are visiting this website after you have been arrested or cited for DUII, then you have probably already been offered a chance to take a breath test and either took the test or refused. However, the following information may still be helpful and will hopefully give you a better understanding of your case.
Although many people think it is always best to refuse to take a breath test, it is not quite that simple. Even a lot of lawyers may tell you that you should always refuse the breath test, no matter what. This may not only be bad legal advice but any lawyer that unequivocally tells you to refuse a breath test is probably also being unethical. Because a person can be penalized for refusing a breath test under Oregon law, a lawyer can not ethically advise or recommend that a person refuse to take the breath test in most circumstances. However, you should know both the potential risks and benefits of taking or refusing a breath test if you ever have to make that important decision.
Whether or not you take the breath test could have a serious impact on the outcome of your DUI case. In general, taking a breath test may provide the government with evidence that can help them convict you for DUII. However, sometimes a breath test result, even if it is greater than the legal limit of .08%, can actually help you defend a DUII charge. There are a number of reasons for this but one of the most important is that, if the result of the test is only moderately above .08%, the government may have a difficult time proving that you were under the influence at the time that you were actually driving. You see, in Oregon, a person is only guilty of DUII if they had a .08% or greater blood alcohol content when they were driving. In every DUI case, it's impossible to know what the defendant's blood alcohol content was when they were driving because the breath test is always taken after the defendant has been driving. This fact alone can often present a viable defense to a DUII charge. For example, here's a common DUI scenario: a person has a few alcoholic drinks at a bar or restaurant. They may have some food with their drinks. The person continues to drink more or less until they are ready to pay their bill and leave. They get in their car and start to drive home, which is probably only 10 to 15 minutes away. However, before they get home they are stopped by a police officer and arrested for DUII. The officer has them perform sobriety tests, arrests them, searches and tows their car, and then takes them to jail or the police station. Then, the officer has to go through a time-consuming process before they can even ask the person to take a breath test. When the person finally is given the opportunity to take the breath test, it probably has been over an hour since they left the bar or restaurant. If the person takes the breath test and the result is at or only moderately above .08%, it is very difficult to say that the person was over the limit when they were driving. You see, alcohol does not enter your bloodstream as soon as you consume an alcoholic drink. It has to be absorbed into your body through your stomach and intestines before it enters your blood and starts to affect you. This process takes time--sometimes a lot of time. So, the person may well have been under the limit while they were driving but still blow over the limit after they were driving. This is just one of the many ways that an experienced DUI attorney knows how to defend DUII cases.
Another thing to consider is that refusing the test not only increases the length of your potential driver's license suspension but also may be stronger evidence against you than if you actually took the test and blew over the limit. You see, in most refusal cases, the DA or prosecutor will try to argue that, since you refused to take the breath test, you must have been afraid of the result. Even though there are a lot of legitimate reasons that you might not want to take a breath test, it can make you look bad in court. However, if you have already been arrested or cited for DUII and refused to take the breath test, that doesn't mean you can't still fight your case. There are any number of valid, legitimate reasons that a person may have refused the breath test. An experienced DUI lawyer can help you explain and defend your reasons for refusing the breath test or may even be able to get the evidence of your refusal thrown out of court. If you have been arrested or cited for DUII and refused to take the breath test, you should contact an experienced DUI attorney to discuss your case.
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What Happens After You've Been Arrested or Cited for DUII
If you have been arrested for Driving Under the Influence and are reading this information online, then you were probably issued a citation and released in lieu of going to jail, posted bail, or were released by the jail on your own recognizance ("ROR'd" or "recogged"). In any case, you were most likely given a date, time, and place to appear in court. This court appearance is usually called an arraignment. Sometimes, an arraignment can be as soon as the morning of the next day. At the arraignment, the judge will read the charge or charges that the prosecutor or District Attorney have filed against you and will advise you of some of your rights with respect to the charges. The judge should have told you the minimum penalties for a DUII conviction. The judge also probably advised you that you may be eligible for the DUII Diversion Program (or just "diversion"). The judge may have asked the prosecutor or District Attorney if you are eligible for diversion. Even if the prosecutor or D.A. said you are not eligible for diversion, that does not always truly mean you are not eligible. With the help of an experienced DUI lawyer, you may still be able to get into the diversion program. (Please click here for more information about the DUII Diversion Program). No matter what, if you want to try to get into diversion, it is important that you apply for the diversion program within 30 days of your arraignment. If you do not apply for diversion within this 30-day period, you may not be allowed into the program, even if you are otherwise eligible.
Another very important deadline is only 10 days after your arrest or citation to appeal the suspension of your driver's license for failing or refusing to take a breath, blood, or urine test. When you refuse or fail a breath, blood, or urine test, the police officer should have given you a form called an "Implied Consent Form." This form is a notice of suspension of your driving privileges and you generally only have ten days to contest the suspension. Even if you refused or failed the breath test, you can still challenge the driver's license suspension if the police violated your rights during their investigation or your arrest, or if they did not follow the proper technical rules and procedures for the breath test. You may be able to get the license suspension thrown out even if you refused to take the test. However, because you only have 10 days to file this appeal, it is important that you contact an experienced DUI attorney as soon as possible after you are arrested or cited for DUII.
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How a Lawyer Can Help You With Your DUII Case
You may think that you can handle your DUII case on your own. You may think that, if you failed the breath test, you should just plead guilty. You might think you don't need a lawyer if you are going to apply for the DUII Diversion Program. Well, even though you have a constitutional right to represent yourself without a lawyer in any case, including DUI cases, that doesn't mean that it's a very good idea. Plus, you could end up making your situation much worse because DUI cases involve important deadlines and legal procedures that you may not be aware of. One mistake could have terrible consequences for your life, your work, and your ability to drive in the future.
An experienced DUI lawyer knows the important deadlines and legal procedures involved in DUI cases. An experienced DUI lawyer can help you make the right decision in a case, whether it's applying to get into diversion or fighting your case at trial. An experienced DUI lawyer will discuss your case and talk with you about your individual circumstances and advise you on the best way to handle your case. Perhaps most important, an experienced DUI lawyer will stand up for your rights and will always be on your side so that you can have the confidence to deal with your DUII charge. Please click here to contact me for a free initial consultation for your DUI case.*
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How Much an Experienced DUI Lawyer Will Cost
A DUI charge can have serious negative consequences for your life, your work, and your ability to drive in the future. Trying to save money by hiring a "cheap" lawyer or not hiring a lawyer at all could lead to a very bad result in your DUI case. While every case is different and fees will vary according to the facts of the case and your individual circumstances, I can represent clients in many DUI cases for as little as $1,000. I generally base my fees on the number of hours that I think it is going to take to handle a case in a particular manner. Then, I multiply the estimated hours for the case by my minimum fee of $200 per hour. I feel that my rates are fair and reasonable because of my experience handling DUII cases, my level of personal service to my clients, and rates that other lawyers of similar skill and experience charge. Additionally, I make it a point not to "nickel and dime" my clients for little things like quick phone calls, email, or a few photocopies. I believe that this adds value to the fees my clients pay and further justifies my rates.
To find out how much it will cost to hire experienced criminal defense lawyer Drew K. Baumchen for your DUI case, please contact me to schedule a free initial consultation.*
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What Happens if You Can't Afford a Lawyer
Like many things in life, when it comes to DUI lawyers, you will often get what you pay for. If you really can't afford a DUI lawyer, you may be able to get a public defender. While many public defenders are excellent attorneys, most public defender's offices assign DUII cases to their youngest and most inexperienced attorneys. An inexperienced public defender may not know or understand all of the special laws and rules for DUII cases or, even if they do, they may be so busy with their other cases that they aren't able to give you the level of representation that you deserve. Even worse, they may simply advise or suggest that you just plead guilty or enter into diversion, even though the government may not have enough evidence to convict you at a trial.
While an experienced DUI attorney is certainly not cheap, a conviction for DUII could end up costing you a lot of money in the long run: the $1,000 minimum fine, alcohol or drug education or treatment, increased insurance rates, and installation of an IID are all expenses that can add up very quickly. Hiring an experienced lawyer to represent you in your DUII case could save you some or all of these expenses down the road. If you think you can't afford a DUI lawyer, think about the costs of a DUII conviction. Then, please contact me to schedule a free initial consultation.* We can try to work out payment and billing arrangements that fit your budget.
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The Possibility of Jail Time
If you were arrested for DUII, you may already have had to spend some time in jail. If you are convicted for DUII, you may very well have to serve more time in jail. A first-time conviction for DUII requires that the defendant serve two days in jail or perform 80 hours of community service. However, many District Attorneys and prosecutors will recommend up to ten days in jail or more for a first-time DUII conviction. Whether or not you will have to serve time in jail if you are convicted of DUII depends on your driving record, your criminal record (if any), the severity of your DUII offense, and any other mitigating or aggravating factors surrounding the offense. An experienced DUI attorney knows how to put your best foot forward in court and can help you avoid having to serve jail time, even if you do get convicted for DUII.
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Driver's License Suspension Information
One of the most serious issues in DUII cases is the driver's license suspension that you face if you failed or refused a breath, blood, or urine test, or if you are convicted for DUII. The suspension periods can range from 90 days or one year, all the way up to a lifetime revocation of your driving privileges. If you are convicted for DUII, the minimum time that your license will be suspended is one year. In addition, you will be required to install an "ignition-interlock device" (IID) on your car in order to be able to drive after the suspension. Although you may be able to get a hardship license to get to and from work, if you are caught driving outside of the allowance for the hardship license, you may be charged with a new criminal offense of Driving While Suspended and could face a probation violation for your DUII case. These are some of the reasons why it is important to contact an experienced DUI lawyer to help you with your DUII case.
Even if you are never convicted for DUII, your license can be suspended for up to three years for refusing to take a breath, blood, or urine test if requested by a police officer. However, an experienced DUI lawyer can help you fight the license suspension associated with failing or refusing a breath, blood, or urine test, even if you are going to enter the DUII Diversion Program. However, there are complicated procedures and important deadlines for fighting the suspension. Therefore, it is very important that you contact an experienced DUI lawyer as soon as possible.
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Glossary of DUI/DWI and Related Legal Terms
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