DUI DEFENSE

IMPORTANT:You must request a DMV hearing within 10 days of your arrest or your driver license will be automatically suspended.

The Law Offices of Erik Nicholson is pleased to make this request on your behalf.

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You have two cases to fight when arrested for a DUI:

DMV action to suspend driver license

Implied Consent: “Implied consent” means that you have given consent for something based upon your actions rather than words.  Under Oregon’s implied consent laws, the act of driving a motor vehicle on public roads means you have given consent to have your breath, urine, or blood tested for drugs or alcohol. 

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  • If you are arrested in Oregon for a suspected DUII (driving under the influence of intoxicants – alcohol or drugs) the officer will typically ask you to take a blood, breath, or urine test. Oregon law requires you to submit to these tests if properly requested by law enforcement. An officer must have probable cause to believe that you have been driving under the influence before he or she may lawfully arrest you and request such tests.
    • Breath Test: This is the default test required for most people following a DUI arrest.
    • Urine Test: You are required to give a urine sample when your BAC (blood alcohol content)  is below .08 AND the officer suspects you are under the influence of something other than alcohol OR if you have been involved in an auto accident resulting in injury or property damage.
    • Blood Test: You are required to give a blood sample when you have been in an auto accident and require immediate medical attention.

Failing a Test: Failing a Breath or Blood test will result in the suspension of your drivers license (see Suspension Guide). Most implied consent license suspensions are the result of a failed breath or blood test.

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  • You are considered to have failed a breath or blood test if your test results show a .08 blood alcohol content (BAC) or above.  If operating a commercial vehicle you are considered to have failed a breath or blood test if your results show a .04 or above.

Refusing a test:  An officer is generally supposed to inform you that if you refuse a chemical test your license will be suspended.  The suspension period for a refusal is significantly longer than for a failure.  You may also face an additional “refusal” violation. 

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  • License Suspension: If you refuse a properly requested chemical test your license will suspended for a minimum of one year and a maximum of three years. If you hold a commercial driver license your suspension will be for a minimum of three years and potentially for a lifetime. (see Suspension Guide)
  • Refusal Violation: If you refuse a properly requested chemical test you may receive a “refusal” violation.  A refusal violation carries a potential fine of $500.00 – $1000.00.  This fine is in addition to other any fines imposed for the DUI criminal offense (see DUI Criminal Prosecution).


Administrative Hearing: If you failed or refused a breath or blood test or refused the urine test DMV will automatically suspend your drivers license.  You have a very short time period to fight against this suspension.

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  • You have until 5:00 p.m. on the tenth day following your arrest to request a hearing to fight against the DMV driver license suspension.  If you do not request this hearing on time the DMV will automatically suspend your driver license for a minimum period of 90 days up to 3 years depending on your circumstances and history [see Suspension Guide].  Call us today so we can make this request on your behalf and fight to preserve your driver license.


Timing of License Suspension: If you did not request an administrative hearing your license will be suspended at 12:01 a.m. on the thirtieth day following your arrest (29 days and 1 minute after your arrest).  

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  • Typically your driver license will be seized by the arresting officer.  The yellow “Implied Consent Combined Report” given to you at the time of your arrest will serve as your temporary driver license until the suspension goes into effect.  The length of your suspension will depend upon the circumstances of your arrest as well as your criminal and driving history. (see Suspension Guide).


Beating a License Suspension: There are numerous tactics and legal grounds that a qualified defense attorney can use to argue that a proposed drivers license suspension is invalid. 

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  • At the implied consent hearing, the hearing officer will determine whether all the necessary legal requirements have been met for a drivers license suspension to be valid.  A seasoned defense attorney will challenge each and every possible element using the facts of your arrest and established case law to argue that the suspension is invalid.
  • Your defense attorney can challenge: (1) whether the person was validly under arrest when a request for chemical test was given; (2) whether the police had reasonable grounds to believe, at the time the request was made, that the person had been driving under the influence of intoxicants; (3) whether the person refused the test or tested above legal limits; (4) whether the person had been properly advised by the arresting officer; (5) whether the person arrested was given proper written notice; (6) whether the individual administering the test was certified to do so; & (7) whether the methods, procedures and equipment used during the test complied with state law.

 Criminal Prosecution

Arrest:  If you have been arrested for a DUII you will be given several pieces of paperwork including a notice to appear in court.  The information contained in these documents can be critical to your case, it is important to read everything given to you immediately. 

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  • It is essential that you attend all court appearances with an experienced DUI attorney.  If you miss your first court appearance a warrant will be issued for your arrest; you may lose the ability to take advantage of certain court programs; your driver license can be suspended; and you can be charged with a new crime of Failure to Appear.

 

Charges: A person commits the crime of Driving Under the Influence of Intoxicants (DUII/DWI) if they are operating a motor vehicle and they have 0.08 percent alcohol in their blood; are under the influence of intoxicating liquor, a controlled substance or an inhalant; OR are under the influence of any combination of intoxicating liquor, a controlled substance, or inhalant. 

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Although .08 BAC is the legal standard for the average driver, it is still possible to get a DUI with less than .08 BAC if you are operating a commercial vehicle, are under the age of 21, or your physical and/or mental faculties are adversely affected to a noticeable or perceptible degree.

  • The legal limit is .04 BAC while operating a commercial vehicle.
  • There is no legal limit if you are under the age of 21 (zero tolerance).