When Is a DUII Charge a Felony in Oregon?

When law enforcement stops a driver for being under the influence of alcohol, drugs or a combination of two or more substances in any state, the circumstances of the incident determine whether that driver will face a misdemeanor or a felony charge. The state of Oregon is no exception, although it uses slightly different terminology – driving under the influence of intoxicants, or DUII – to define what constitutes an impaired driver.

While some states use the terms driving under the influence (DUI) or driving while intoxicated (DWI), Oregon defines drunk driving while operating a vehicle (rather than "motor vehicle") as Driving Under the Influence of Intoxicants, or DUII. According to ORS Section 801.590, a vehicle is a mode of transportation "powered or propelled by any means." This can describe a car, motorcycle or even a bike.

Under state law ORS Section 813.100, a DUII occurs when an impaired driver operates a vehicle on a "public highway." A highway, as defined by ORS Section 366.005, is "every public way, road, street, thoroughfare and place, including bridges, viaducts and other structures within the boundaries of this state, open, used or intended for use of the general public for vehicles or vehicular traffic as a matter of right." Oregon law enforcement can charge a driver with DUII if:

• The driver has a blood alcohol concentration (BAC) level of at least 0.08 percent.
  
• Alcohol, cannabis, inhalants or other controlled substances impair the driver.
  
• A combination of some or all of the above substances impair the driver.
• The driver displays adverse mental or physical abilities due to these substances. There does not have to be an obvious display of intoxication but must deprive that driver of the clarity or control they usually have when operating a vehicle.

​Read More​: Oregon Implied Consent Law: What Happens if I Refuse to Take a Chemical Test?

According to NOLO, Oregon law considers a first-time and second-time DUII offense as Class A misdemeanors. Even though a misdemeanor carries a lighter sentence, it is still a serious charge with equivalent penalties. When convicted of a misdemeanor DUII, a driver can face a 48-hour to a one-year jail sentence on top of a driver's license suspension. A judge can also order the convicted driver to perform at least 80 hours of community service. A misdemeanor DUII offender must pay a minimum fine of $1,000 and a $255 conviction fee, but if the driver's BAC is 0.15 percent or greater, they must pay a minimum $2,000 fine.

In both instances, the fine can be as much as $6,250 or more, depending on the circumstances of the traffic stop. For example, if an intoxicated driver has a passenger under 18 in the vehicle and is at least three years older than that passenger, their fine could be as much as $10,000. Every DUII-convicted driver must complete a screening interview to determine the particular substance abuse treatment program that the court will recommend; pay for the program's costs along with a $150 screening fee; attend a Victim Impact Panel that costs between $5 to $50 to attend; and install an ignition interlock device (IID) in their vehicle for one to two years.

​Read More:​ Underage DUII in Oregon: What You Need to Know

While DUI laws vary from state to state, they all have one thing in common: no state counts a first DUI as a felony. In Oregon, there are also no degrees of a DUII felony, nor are there extreme or aggravated levels of DUIIs as there are in many states. However, some circumstances influence whether a DUII in Oregon is a misdemeanor or a felony, particularly prior DUII convictions. Oregon does not elevate DUII charges by considering factors such as greater BAC levels, passenger age or damages, but these circumstances can increase the severity of penalties for the driver.

According to ORS Section 813.010, Oregon classifies DUII as a Class C felony. Both misdemeanor and felony DUII charges require a driver to have a BAC level of 0.08 percent or higher. A driver can face felony charges if they have had two prior DUII convictions in Oregon or in another state in the past 10 years. A driver's out-of-state DUI conviction will not be part of their DUII felony consideration in Oregon if that driver was under age 21 at the time of the incident and had a BAC of less than 0.08 percent.

In Oregon, a third DUII charge is a felony, and the penalties can be far more severe, according to NOLO:

• 90 days to five years of jail time.
  
• Revocation of driving privileges for life, which the driver may petition the court to reinstate after 10 years.
  
• Supervised probation for two years.
  
• Fines between $2,000 and $125,000.
  

A felony DUII also creates a permanent mark on the driver's criminal record. This makes it harder for the offender to find employment, housing and even reasonable car insurance rates. In Oregon, there is no way to expunge felony DUII convictions from the driver's record.

In 2010, Oregon voters approved Ballot Measure 73, which brought the number of prior convictions needed for a felony DUII down. Under Ballot Measure 73, a driver can face felony charges with just two prior DUII convictions occurring within a decade before the third. Before this ballot measure went into effect, a driver who had three DUII arrests might still face only a misdemeanor charge if they had taken and completed a diversion program for the first DUI. This would have dismissed that first charge under ORS Section 813.010.

According to Romano Law, DUIIs under Ballot Measure 73 and ORS Section 813.010 are both Class C felonies and carry a five-year maximum prison sentence and a maximum $125,000 fine. However, that's where their similarities end. A DUII under Ballot Measure 73 brings with it a minimum mandatory 90-day jail sentence that the offender must serve. There is no exception to this rule, no credits for time served or good behavior and no alternatives or programs in lieu of the jail sentence.

Ballot Measure 73 also eliminated the 10-year look-back period, in which the court uses a prior DUII to enhance a current one. This made all subsequent DUIIs committed by an intoxicated driver felonies.

​Read More​: Oregon BUII Laws, Regulations & Penalties