They say there is a first time for everything, but few people expect to get arrested for drunk driving in Oregon. A first-offense DUII may be unanticipated, but it does happen. That means that drivers in Oregon should read up on the crime of DUII, understand the elements of the offense and recognize the potential criminal consequences that include imprisonment, fines and driver's license suspension.
Driving Under the Influence of Intoxicants
All states make it a crime to drink and drive. California calls it driving under the influence (DUI); Texas terms it driving while intoxicated (DWI); and Iowa uses the name operating while intoxicated (OWI). But in Oregon, the violation is known as driving under the influence of intoxicants, or DUII. Like each state's laws, the Oregon DUII statute has provisions and interpretations that make it different from the drunk driving laws in other states.
Oregon's DUII laws are found at Chapter 13 of the state codes. The basic prohibition is found at Oregon Revised Statutes 813.010. This statute defines the crime as "driving while under the influence of intoxicants if the person drives a vehicle while the person: (a) has 0.08 percent or more by weight of alcohol in the blood; (b) is under the influence of intoxicating liquor, cannabis, a controlled substance or an inhalant; or (c) is under the influence of any combination."
Elements of a DUII Conviction
From the language of the statute, it is clear that there are three elements of the crime. A prosecutor must prove that the person was: 1) driving 2) a vehicle 3) with a blood alcohol concentration (BAC) level of 0.08 percent or higher, or being under the influence.
"Driving" in Oregon for DUII purposes means being in control of a vehicle that is moving. But if the driver is drunk and behind the wheel, they may be arrested for attempting a DUII under Oregon's attempt statute.
The "vehicle" element contains some surprises since it does not just mean motor vehicles. While trucks, cars and motorcycles are vehicles, just like in every other state, the term is interpreted broadly in Oregon for DUII purposes to include scooters, electric bicycles, motorized wheelchairs and riding lawnmowers. And, even pedal-power bicycles are vehicles under the DUII laws.
Under the Influence of Intoxicants in Oregon
Like every other state, Oregon has enacted a "per se" provision for its drunk driving laws. After chemical tests to determine BAC levels were developed in the 1980s, all states added provisions to their driving laws setting a legal limit for drivers. After a nudge from the federal government, all states set that limit at 0.08 percent.
Even tighter restrictions are permitted and used, in some states, for commercial vehicle drivers. Proof that the driver exceeded the BAC legal limit is "per se" – in and of itself – sufficient evidence to convict a driver of a drunk driving charge.
Oregon's law sets the regular BAC limit at 0.08 percent. It sets a legal limit for commercial drivers at 0.04 percent. Oregon's implied consent law provides that all Oregon drivers are deemed to have consented to chemical testing of their BAC level in exchange for the right to drive on Oregon roads. If a driver refuses a chemical test, the DMV suspends their driving privileges automatically. Note that there is no similar per se limit for drugs.
Impairment of Physical or Mental Facilities
On the other hand, an Oregon driver can also be found guilty of a DUII without having a BAC of 0.08 percent or without even using alcohol. The element of intoxication is also fulfilled if the driver is found to be under the influence of alcohol, controlled drugs or inhalants. This requires evidence that the driver's physical or mental facilities are adversely affected to a noticeable or perceptible degree as the result of ingesting drugs and/or alcohol. This is usually established by testimony about field sobriety tests by law enforcement officers.
First Offense DUII Penalties
The good news is that the penalties for a DUII in Oregon depend on the driving history of the individual. A first offense carries the least amount of penalties. The bad news is that a first-conviction DUII driver can still expect both to suffer some administrative and criminal penalties.
The first question to ask is whether the conviction will be considered a first offense in Oregon. It may be considered a first offense even if the driver has other DUIIs on their record. That is, if the driver has not had any convictions within the past five years, the offense will be punished as a first offense.
Administrative DUII Penalties
Generally, a person arrested for a crime does not incur penalties unless and until they plead guilty or are proved guilty in a criminal trial. With DUII, this is not the case. A first offender, or anyone arrested for a DUII, faces administrative penalties almost immediately. The person's driving license is confiscated by the police and subsequently suspended by the DMV.
A driver may ask for an administrative hearing to contest this, but they will need to convince an administrative law judge that they should not be sanctioned.
How long does a license revocation last? The administrative suspension is 90 days for a driver with a BAC of 0.08 percent or more. Refusal to submit to a chemical test results in a one-year administrative license suspension, regardless of whether the driver is criminally charged and convicted.
Criminal Penalties for a DUII Offense
In addition to administrative penalties, anyone arrested for a DUII can expect to face a criminal trial. A first offense DUI is a Class A misdemeanor in Oregon. This is the less serious type of crime, yet it can still carry penalties of up to one year of jail time. The minimum sentence for a first conviction is two days in jail, while one year is the maximum.
The fine ranges from $1,000 to $2,000, and the driver will also be responsible for paying court costs. The judge usually sentences the driver to between 18 and 36 months of probation after they serve their jail sentence. This is usually conditioned on completion of a substance abuse treatment class and a victims impact panel class.
A DUII first-time offender also faces a one-year license suspension as a criminal punishment. The judge can order the driver to install an ignition interlock device (IID) in every vehicle they own when the suspension is completed. This device prevents the car from starting until the driver blows into the device to prove there is no alcohol on their breath. The driver pays for the IID installation and maintenance.
Availability of a Hardship Permit in Oregon
As long as the driver submitted to a chemical test, they can apply for a hardship permit or license allowing them to drive to work, school, doctor's appointments and substance abuse classes. An IID must be installed during this period, as well.
DUII Diversion Program
An opportunity called diversion is available for someone convicted of a first offense DUII in Oregon. This is a year-long program that allows the driver to have the DUII charge dismissed if all of the conditions are met. In that case, the person who successfully completes the program will have a diversion on their record, not a DUII.
In order to be accepted into the diversion program, the driver must petition the court within one month from the first court appearance date on the citation. If the court allows the driver to attend a diversion program, they must complete classes, a treatment program and attend a victim impact panel, as well as maintain a clean driving record.
Teo Spengler earned a J.D. from U.C. Berkeley's Boalt Hall. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an M.A. and an M.F.A in creative writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.