As a criminal defense and DUII lawyer in Portland, I hear lots of questions from clients and potential clients about drunk driving laws. Unfortunately, many people have heard half-truths about the law, or misinterpret something they’ve read online or seen on TV. This is a problem because it might result in a person failing to take advantage of the rights afforded to them or accepting far too harsh a punishment for their offense.
That’s why I’m writing today: to help clear up the most common misconceptions about DUI offenses and to help you understand your rights under the law.
Let’s get started!
Understanding Your Rights & How to Express Them
The biggest misconceptions surrounding DUII arrests, and legal issues in general, are related to the rights that you have and how to invoke them. When you’re pulled over, you’re required to provide an officer your license, registration, and proof of insurance.
After that, you have the right to:
Refuse a field sobriety test
Refuse a breath test
Refuse a search of your car
Refuse to answer questions
Have a lawyer present
These are important rights and they exist to protect you. As a lawyer, my general advice is to exercise all of these rights, with one possible exception. If you refuse a breath test, your license will automatically be suspended for 1 full year. This is a non-negotiable penalty, but it is your right to refuse a breath test should you choose to do so.
If you choose to exercise your right to remain silent, refuse a search of your vehicle, or refuse to answer questions, be polite, firm, and don’t engage with the officer.
Police officers are trained to draw out evidence and cajole you into not exercising your rights. You might hear the officer say something like:
Do you have something to hide?
If you don’t have anything to hide, why not just let me search your car?
You’ll only get a 90-day license suspension if you blow a .08 or less? Why refuse a breath test and take a 1-year suspension?
Just remain calm and firm in your desire to speak with your lawyer or refusal to answer questions and be clear in your desire to actively express and invoke your rights.
If you are arrested, you’ll be taken to the police station and booked. Many people believe, based on TV and movies, that they have the right to a phone call. The truth is that you have the right to contact an attorney and this is generally understood to be a 15-20 minute private phone call.
In some cases, you’ll be allowed to use your own cell phone to place a call. No matter the situation be clear that you’d like to make a private phone call to speak with an attorney. This is your right. Exercise it!
Common Questions About DUII
Can a DUII be expunged from my record?
No. DUII is in a category of crimes known as “counting crimes.”
The punishment for counting crimes varies based on the number of offenses, no matter how much time has passed. Because of this, DUII convictions and diversions (an option available to first time offenders) can’t be expunged from your record. This is a common misconception because many other types of crimes can be expunged. DUII just isn’t one of them.
Another cause for this misconception is the fact that an insurance company may reduce rates after 5 or 7 years of safe driving without a repeat DUII offense. Just because an insurance company “expunges” your DUII that doesn’t mean the law works the same way.
Can a drunk driving conviction prevent me from traveling?
Yes! If you attempt to travel to Canada, particularly as a driver, you will be refused entry if you have a DUII conviction or diversion.
However, if you are planning a trip to Canada, you can pre-apply for entry by contacting the Canadian government, completing the necessary forms and submitting to a background check. The process takes about 6 weeks and there are no guarantees.
It’s important to note that this goes for all DUII offenses (including marijuana crimes and bicycling under the influence), not just those related to alcohol or driving a car.
Do celebrities, politicians, athletes and other important people get special treatment and different sentences for their DUII offenses?
No. As I mentioned earlier, a DUII is a counting crime, where penalties become more severe for repeat offenders. In Oregon, the penalties for DUII are not open to interpretation by the courts.
This is important because it means that all DUII offenses are treated equally. A judge can’t hand down an extra harsh or lenient sentence at his or her discretion. No matter who you are, if you’re convicted of DUII, the penalties are clear.
Is my BAC too high to enter into diversion?
No! There is no blood alcohol content limit when it comes to qualifying for diversion. Even if you blew a .26 (over 3 times the legal limit), diversion is still likely an option, with one exception we’ll talk about soon.
Entry into diversion is a mechanical process that is very straightforward. It’s additional convictions where a higher BAC may result in additional penalties.
Why did I get a ticket for $6,250?
I hear this one a lot! When police officers write a ticket for an offense that requires a court appearance, they’ll often put $6,250 down as the amount. Why? Because that’s the maximum allowable fine under the law. It’s a number they remember and even though it’ll be reduced in court, they’ve got to put something down in that box on the ticket.
Understanding The Penalties for DUII Offenses
With one major exception, the first time you commit a DUII offense, you’re eligible for a diversion program. That exception? If you hold a commercial driver’s license (CDL) you are not eligible for diversion.
Second-time offenders never have the option to complete a diversion program. The only choice is a guilty or not guilty plea. If convicted, the penalties include but aren’t limited to 80 hours of community service or 2 days in jail, a minimum $1000 fine, and 2 years probation.
Marijuana and DUII
Marijuana-related DUII offenses are somewhat uncharted territory. It’s a new frontier and the law is still getting things figured out. One issue is that there is no marijuana-impairment equivalent of the BAC. Additionally, if arrested for a marijuana or other drug-related DUII, there’s a different process involved. A police officer who’s a drug recognition expert will perform a battery of tests to determine impairment.
Prescription Drug DUII’s
You can get a DUII for prescription drug use, even if you’re taking the drug as prescribed and not abusing it!
A common example is Ambien. Some people are arrested for DUII while taking Ambien, not even realizing they were driving! Additionally, Ambien plus alcohol is a recipe for DUII.
Diabetes & DUII
People who use insulin to control and treat diabetes should be aware that low blood sugar can cause erratic driving that can at first glance look like a DUII.
Whether you’re diabetic or not, an officer should first ask you if you’re diabetic, if you’re taking insulin, and if you’ve eaten recently as part of any DUII stop. If needed, they should get you to the hospital for medical attention.
But officers do make mistakes and don’t always recognize the warning signs of insulin shock, which can be dangerous.
Bikes, Boats, and Non-Car DUII Offenses in Oregon
The law treats all vehicles, including bikes and boats as motor vehicles when it comes to DUII offenses. The penalties are the same, no matter what vehicle you’re operating. There have even been cases of disabled persons arrested for operating a motorized scooter under the influence of alcohol.
Commercial Driver’s Licenses (CDL) & DUII
Do you drive commercially for your current job? If not, and if you have a CDL from a previous job, you should consider changing the status of your license. Why?
Because if you’re not currently working as a commercial driver, but you hold a CDL (even if it’s 20 years old), you aren’t eligible for a diversion program for a first DUII offense. It’s crazy, but true. Judges have no discretion in the matter and simply having a commercial driver’s license could cost you big time.
In my opinion, it’s an area where the law needs to be improved.
Need Help With a DUII?
If you or someone you care about has been arrested for DUII in Oregon, contact me, Adam Greenman. I represent first-time and repeat offenders, helping them to understand their rights and achieve the best possible outcome to their case.
Call my office today at (503) 498-6985 to schedule a free, confidential consultation.