DUI Process & Overview

Oregon’s drunk driving (DUII) laws are some of the toughest in the nation and even a single conviction can have lifelong consequences. Oregon already has tough DUII laws but Washington and Clackamas County are especially  known for their extremely aggressive prosecution of DUII’s.

If you have been arrested for drunk driving (DUII) time is of the essence. It is extremely important to speak with an experienced DUII and DUII Diversion attorney immediately. The clock is ticking to preserve your rights before you give them up and lose them forever.

DUII Arrest

People are most often pulled over for minor traffic infractions such as speeding, swerving, wide turns, or driving without headlights, however, Washington and Clackamas County law enforcement will also approach cars pulled over on the side of the road or even come to your house if someone called 911 about your driving.

The first question law enforcement will ask if you have been drinking. Any odor of alcohol or admission to even a single drink will give the officer grounds to start a DUII investigation and ask you to perform very challenging “field sobriety tests” (SFST).

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After the DUII Arrest

When you are arrested for a DUII you will have TWO DIFFERENT cases to fight. The first is the DMV action to suspend your license (implied consent suspension) and the second is the criminal charge in the local Court. These two cases are completely independent of each other and the outcome of one doesn’t affect the outcome of the other.

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DMV Suspension

If you are arrested or a suspected DUII (driving under the influence of intoxicants – alcohol or drugs) you will typically be asked to take a breath, blood, or urine tests (sometimes a combination of these tests). Oregon’s “implied consent” law requires that you 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. This test consists of two breath samples into a machine called the Intoxilyzer 8000.
  • 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.
    • Warrant Blood Draw: Many jurisdictions now have a judge on duty 24 hours a day, 365 days a year. If you refuse a breath test the police will request the judge to approve search warrant for a forced blood draw.

Test Failure

You are considered to have a 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.

If you failed a breath test or refused a breath, blood or urine test, the DMV will automatically suspend your driver license anywhere from 90 days to three full years depending on the situation and your history. If you hold a commercial driver license, your commercial license could be revoked for life.

If your test results show a .07 or below, or .03 or below while driving a commercial vehicle, DMV will not suspend your license, but you may still face a license suspension from the court if your case is charged.

Test Refusal

An officer is generally required to inform you that if you refuse a chemical test your license will be suspended. The suspension period for a test refusal is significantly longer than for test failure. You may also face an additional “refusal” violation (similar to a speeding ticket with a very high additional fine). Erik Nicholson is often able to get additional violations such as this dismissed.

Timing of License Suspension

If you do not request a DMV (implied consent) hearing within 10 days of your arrest, your license will be suspended. If you hold a valid Oregon Driver license, your license will be suspended at 12:01 a.m. on the 30th day following your arrest (29 days and 1 minute after your arrest).

Typically, the arresting officer will seize your license. The yellow or white “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 the suspension will depend upon the circumstances of your arrest, as well as your criminal and driving history. Erik Nicholson can quickly analyze what you may be facing.

If you possess an out-of-state driver license, the arresting officer should not confiscate your license, however, they frequently do anyway. Out of state drivers are not eligible to use the “Implied Consent Combined Report” for a temporary license from Oregon, but if you are otherwise valid to drive, you may continue to drive until 12:01 a.m. on the 30th day following your arrest (29 days and 1 minute after your arrest).

Fighting the DMV Suspension

The Oregon Office of Administrative Hearings conducts the DMV “implied consent” hearings. At the hearing, an administrative law judge (ALJ) will listen to testimony and take evidence presented by the parties (typically the arresting officer, you, and your defense attorney). The ALJ will determine whether all the legal requirements have been met in order to suspend your license. 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 should be ruled invalid.

Your defense attorney can challenge: (1) whether you were validly under arrest when the officer requested the test; (2) whether the police had reasonable grounds to believe, at the time the request was made, that you were driving under the influence of intoxicants; (3) whether you refused the test or tested above the legal limit; (4) whether you were properly advised of your rights by the arresting officer; (5) whether you were given proper written notice of the pending suspension; (6) whether the officer who administered the test was properly trained and certified to conduct the test; & (7) whether the methods, procedures and equipment used complied with Oregon State Law.

Erik Nicholson will make hearing request and fight the DMV suspension as part of his work on your DUI case.

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The Criminal Case After a DUII

First Court Appearance: At the time of your arrest or release from jail, you were given a citation or release agreement with an order to appear in court. It is very important to find this document and confirm when and where your court appearance is. If you miss your court appearance, a warrant will be issued for your arrest and you will lose the opportunity to participate in the DUI Diversion Program, if you are eligible.

At your first court appearance several important things happen:

  1. You are given a list of the charges you are facing. Many people are surprised to learn that the District Attorney has added additional charges to their case. Some common additional charges to expect with a DUI are: Reckless Driving, Recklessly Endangering Another Person, Hit & Run and Driving While Suspended.
  2. You are expected to have an attorney, apply for a public defender if you cannot afford your own attorney, or make the decision to attempt to handle the case on your own. Although it is your right, it is never recommended to handle a serious case like DUI on your own. If you need time to hire an attorney, ask the judge for more time and you will typically be given a week or two.
  3. Your next court appearance will be scheduled. With a DUI case, timing is everything. An experienced attorney will be monitoring important statutory timelines in your case so you do not unknowingly give up or lose important rights such as the DUI Diversion Program.
  4. Your first court appearance may be the appropriate time to make important requests to the Judge. If you need to leave the state, have been given a no contact order you would like lifted, work in the beer / wine / liquor / marijuana industry or have some other special circumstance to discuss with the Judge, this may be the time. Your attorney will know when and how to make a special request to the Judge.

If you hire Erik Nicholson he will be with you at all of your court appearances. At your first court appearance he will do all of the speaking and make the necessary requests to preserve your rights and ensure you are moving forward properly with your case.

DUI Charges: An Oregon DUII arrest will result in a Class A Misdemeanor charge. This charge can carry maximum of 364 days in jail, fines of $6,250.00, 5 years of probation, driver license suspensions (imposed by the court in addition to the DMV suspension) and many other consequences.

Most people with a DUII charge are not facing the maximum jail time or fines, however, the consequences are not mild and get increasingly severe with each new offense. Any prior DUII conviction in your lifetime will be used to aggregate and enhance the punishment the prosecutor seeks.

Case Options: If this is your first DUII arrest you may be eligible for Oregon’s DUII Diversion program. If you are not eligible for the DUII Diversion program, your options will be limited to:

  1. Attempting to get the case dismissed or evidence suppressed due to officer error, violation of the law or violation of your State and/or Federal Constitutional rights (whether this option exists depends on the unique facts of your case);
  2. Taking the case to trial; or
  3. Accepting a plea offer after negotiations with the prosecuting attorney.

Legal Motions: In a DUII case, the prosecution and defense will debate the facts and evidence of your case. Both sides submit legal documents to the court such as a pretrial motion. Pretrial motions are requests for the Judge to make specific rulings or take certain actions in your case before a trial. These requests contain legal arguments to convince a Judge to grant the request.

Although there are numerous motions that can be filed in appropriate circumstances the most frequent are:

  1. Discovery Demands: A discovery demand is a legal request that requires the prosecution to provide the defense with any and all evidence that can you be used against you or may tend to show your innocence. For instance, you have a right to see the results of a blood test before deciding how to proceed forward with your case.
  2. Motions to Suppress: Evidence that is illegally obtained through an illegal stop, illegal search or some other incorrect procedure should be excluded at trial. A good defense attorney will argue to the Judge that illegally obtained evidence should be thrown out. If a prosecutor cannot move forward because enough evidence has been excluded, they will be forced to dismiss the case before a trial ever happens.
  3. Motions to Strike Prior DUIs: Every prior DUII conviction, no matter how old, will aggregate against you and increase your jail time, fines and fees, length of probation, length of driver license suspension and even the level and length of alcohol or drug treatment you must complete. It may even bump your DUI to a Felony charge where you could be facing prison time.

    Sometimes prior DUIs can be stricken (treated as if they never happened). Some examples of when a “motion to strike” may be applicable is if official court records have been lost or purged, the DUI laws from the convicting state were not similar enough to Oregon’s laws or a plea was entered without counsel and sufficient knowledge of the actions being taken. 

Pretrial motions are complicated and require excellent research, writing and speaking skills to convince a Judge that your argument is legally sound. Experienced DUI attorneys know which motions to file and when to file them.

This doesn’t guarantee success, but, Erik Nicholson will fight your DUI charge every step of the way.

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If you choose not to accept the terms of a plea negotiation, the case will go to trial.  You are entitled to a trial by a jury or a “bench” trial where the judge will be the one deciding if you are guilty.  Trial is when your DUI lawyer will work to expose weaknesses in the State’s case and persuade the jury or the judge that the government has not met its burden (proof beyond a reasonable doubt) to find you guilty.

The first step of a jury trial is to select a jury. For misdemeanor offenses, DUII cases are heard by a panel of six (6) jurors. For felony offense, DUII cases are heard by a panel of twelve (12) jurors. During what’s called “voir dire”, your attorney will ask questions and talk with the jury pool to help determine which individuals may be best to decide your case. After the jury is selected, each side presents its opening statements with the state presenting its case first.

The prosecutor will call witnesses to testify such as the arresting officer, state lab technician or anyone who they believe can help prove the case against you.  Each witness will be cross-examined by your attorney. Once the state is done presenting its case, your lawyer will present your case.

The government carries the burden of proving your guilt beyond a reasonable doubt in order to convict you; there is no burden on you to present any evidence whatsoever.  If there are witnesses who support your case, your attorney will call them to testify. You may be called to testify if your attorney thinks it is in the best interest of your defense. You are not required to testify and have an absolute right to remain silent. If you choose to testify, it should only be after careful consideration of the pros and cons of doing so.

After your attorney “rests” your case, closing arguments are made, the judge instructs the jury and then the jury deliberates. The burden to prove your guilty is always on the government.  If the government is unable to prove beyond a reasonable doubt any of the necessary elements of the crime then a finding of guilt cannot be made.  It is important to remember that there is always a risk of conviction at trial.

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Plea Negotiations:

Oregon law does now allow a prosecutor to dismiss a DUII through plea negotiations. For example a DUII cannot be dismissed in exchange for a guilty plea to another crime, however, other crimes like Reckless Driving can be dismissed in exchange for a guilty plea to a DUII.

Oregon DUII plea negotiations typically involve the terms of the sentence such as: length of jail time or community service; fines owed; and the dismissal of other crimes or traffic infractions. A good DUII lawyer will work to negotiate much better terms than what the prosecutor initially wants to impose. Most DUII cases resolve through plea negotiations.









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