Should I Tell My Insurance About My DUII?

No one affirmatively notifies your insurance company of your DUII arrest — unless there was a wreck of some sort. If there was a wreck, you should promptly notify your insurer so they start working to pay whoever got their property damaged or was hurt.

But in non-wreck DUII cases, it is in your financial interest (keeping your premiums low) to not affirmatively notify your insurance company. You have no obligation to do so. On the other hand, you also cannot lie — an affirmative lie could nullify your coverage (fraud). Therefore, my advice in this situation is: don’t change your policy. Don’t buy a new car, don’t add a new driver, don’t establish a new primary residence. Those things would all trigger you having contact with your insurance company. They would then set a new rate for you — based on the new car’s value, or the new driver’s driving record, or the new address (address is used in setting rates because some neighborhoods engender more claims than others / are more dangerous than others). Most rate-setting would include a review of your current driving record. Insurance companies generally use a 3-year look-back policy, so if you can make three years from the arrest without the insurance company finding out about your DUII charge, then you should keep your rates as they are. If you are in a situation where you are asked a direct question by your insurance company about the DUII, you must be honest. That is because their obligation to indemnify (pay for claims) is tempered by your duty of cooperation (honesty).

The above is general advice. You should review your policy terms — maybe you have an insurance policy that requires you to notify your insurer of a DUII arrest. I’ve never seen one. However, I have seen employment and professional policies that either require or strongly suggest you notify your employer or your professional licensing board. For instance, as an attorney I would promptly notify the Oregon State Bar if I was arrested for DUII. With professional licensing boards, it seems to always be better to notify early. Like most DUII attorneys, I do not regularly represent people before licensing boards, so if you are looking for specific advice or help with your state licensing board, you should seek out a lawyer who regularly handles board licensing issues. Most regular DUII lawyers know these folks — this issue comes up with some frequency!

To sum up: if you get a DUII, you don’t have to immediately advertise that fact to your insurance company. If anyone was hurt or if property was damaged, you should open a claim with insurance promptly. And finally, if you occasionally drink and drive (it’s legal, see my blog post here: http://oberlaw.com/uncategorized/not-illegal-to-drink-drive-court-surprised/) you should have policy limits well above the minimum $25,000/$50,000 limits. Hit one Tri-Met or utility box, and you’ll eat that up immediately — and you’ll be personally on the hook for the remainder. There’s not one DUII lawyer I know who is not insured at the $100,000/$300,000 level, often with a $1,000,000 umbrella policies. It is pretty cheap to increase coverage — and much easier than sitting in a debtor’s prison for failure to pay restitution.

How Much Alcohol is Healthy?

The short answer for how much alcohol is healthy is: not much. 1-2 doses per day for men, 1 for women. “Bingeing,” weekends-only, for example, is much more harmful than moderate regular use.

Many studies suggest that up to 4 drinks per day for men, and up to 2 for women, provide an overall health benefit. Augusto Di Castelnuovo, ScD; Simona Costanzo, ScD; Vincenzo Bagnardi, ScD; Maria Benedetta Donati, MD, PhD; Licia Iacoviello, MD, PhD; Giovanni de Gaetano, MD, PhD, “Alcohol Dosing and Total Mortality in Men and Women: An Updated Meta-analysis of 34 Prospective Studies,” JAMA Internal Medicine (Dec 2006), available here. However, the CDC reports lower numbers — up to 2 drinks for men and 1 for women. Why?

The CDC considers a man to have transitioned from moderate to excessive drinking when he consumes more than 4 drinks in a day or 14 drinks in a week (3 and 7 for women). That’s the same daily drinking conclusions from the collection of studies above. The difference is the weekly drinking standards.

In a Study published in Alcohol, Japan’s Hyogo College of Medicine researchers found that cholesterol, triglyceride and overall blood-borne fats tend to build up in heavy drinkers and — especially — occasional heavy drinkers. In other words, occasionally heavy drinkers have more blood-borne fat than regular heavy drinkers.

Triglyceride and cholesterol levels are regular parts of medical checkups as we age. Pay attention to those levels. If you see elevated levels, consider either changing your drinking habits or ceasing drinking. At some point, we have to weigh the (substantial, non-trivial) benefits of regular moderate alcohol use — longer life, less risk of heart disease, less chance of ischemic stroke and diabetes — against our actual blood test results. Objective, individual evidence wins against trends in health among large populations.

Incidentally, I should point out that road deaths significantly decline when a state adopts legal marijuana access (an average of 15% reduction in traffic fatalities). If alcohol might be a problem in your life, consider a switch to cannabis as your go-to stress relief. It comes with far less side-effects, including hangover, is a natural powerful anti-inflammatory, and offers a growing list of health benefits. When I see clients make the switch to cannabis from alcohol (or opiates), it has always inured to a net public good. Better for them, better for those around them, all-around better.

Is there another reason CDC might suggest the lower levels of alcohol use? It could be because the CDC is worried about people developing alcohol use disorder, which the CDC describes as, “a pattern of drinking that results in harm to one’s health, interpersonal relationships, or ability to work.” In plain English: if your drinking is causing problems.

The CDC might also understate healthy alcohol use out of our country’s particular strain of Puritanism. The same energy that fueled the Puritans fueled Prohibition and resulted in the passage of the 18th Amendment banning alcohol. That same energy fuels the Drug War, the War on Women. And it all comes back to: piety. Wanting to tell other adults what they can and cannot do with their own body. Denying people agency. Control. Or, as one colleague termed it, “Everybody on probation / Everybody in treatment” thinking. (Don’t get me started on kids — the CDC says that “binge drinking” is any underage drinking. So if your kid takes Communion, or has wine at Passover: binge drinking, according to the CDC.)

Finally, what is a dose? 12 oz. of 5% ABV beer. 5% ABV beer is: Deschutes Brewery Twilight Summer Ale, Rainier, etc. Lighter beers. If you order a pint — 16 oz. — of Ninkasi IPA, consider that about 2 doses. A dose is also 5 oz. of wine — i.e., not a restaurant pour. Or 1.5 oz. of distilled spirits. You cannot “bank” your doses — in other words, having 14 doses on the weekend, but abstaining during the week, isn’t healthy. In conclusion, be careful out there, be thoughtful and honest about alcohol use, but don’t think abstinence is the healthiest thing for everyone.

The Wars on Drugs / DUII / Prostitution are Wars on Real People

When the government wants to over-criminalize an area, its favored tool is scare-mongering, or “worst-case-scenario syndrome.” Thus, in a run-of-the-mill .09% DUII trial with no bad driving, and a pull-over for a license plate light out, you’re guaranteed to hear talk about carnage on our highways. In a routine drug possession case, you’ll hear stories of addiction and loss that simply don’t match the facts. Lately, in prostitution cases you won’t hear that word as much as “human trafficking” — because it’s easier to get convictions if you call it that. In the March, 2015, Oregon State Bar Bulletin, the following discipline was reported (last name shortened to “R” because this poor guy has had his name dragged through the mud enough):

ROBERT R.
OSB #73xxxx
Lake Oswego
Public reprimand

By order dated Dec. 30, 2014, the disciplinary board publicly reprimanded Robert R. for violating RPC 8.4(a)(2) (committing a criminal act that reflects adversely upon fitness as a lawyer).

Over a period of several years, R. paid an adult prostitute to engage in sexual conduct or sexual contact. In April 2014, R. pleaded guilty to five counts of patronizing a prostitute in violation of ORS 167.008, a Class A misdemeanor.

R. and the bar stipulated to several aggravating circumstances, including substantial experience in the practice of law and a pattern of misconduct. In mitigation, the stipulation noted an absence of prior discipline, full and free disclosure (R. cooperated with law enforcement and reported his conviction to the bar) and the imposition of other penalties (18 months probation in the criminal proceeding).

My question: why was this lawyer disciplined at all? His bar number is from the year of my birth — meaning he’s at least in his 60’s. He was lonely, and he had an honest, long-term relationship with an adult with full agency. He didn’t breach or abuse their relationship. There was no force, coercion, or trafficking of an underage person.

His discipline comes down to the criminalization of adult conduct that we all know will happen. It’s called “the world’s oldest profession” for a reason. It’s not going anywhere. That prostitution is still illegal underscores the government’s discomfort with nuance: prostitution can be a violent system of exploit. It can also be a mature relationship between consenting adults. We should criminalize the former, and permit the latter. It seems like the most effective way to do so would be to legalize and regulate an industry that we know exists and will always exist. Instead, like drugs, the government chooses to create a unregulated black market. In so choosing, we knowingly put more kids and humans everywhere at risk — decriminalization of sex work would avert 33-46% of HIV infections in the next decade.

That statistic and many more are the result of years of studies that have led major human rights organizations to recommend decriminalization. Amnesty International; the United Nations; Human Rights Watch; and the World Health Organization all have adopted resolutions recognizing that the best way to protect the safety of sex-workers (and their clients and clients’ families) is to legalize the industry. By refusing to do so, we imperil our own citizens. Our government becomes an assistant to actual human traffickers — because they work in the dark, in an unregulated, illegal industry, rather than working in the light, in an industry with health and safety protections.

We have hope that the recent legalization of marijuana — without the sky falling — will help humanity evolve to decriminalize other forms of human conduct, like prostitution for a mature, lonely lawyer in his 60’s who wants to contribute to an adult sex-worker’s business of choice. The government has no business being in their bedrooms. Hopefully, in a few years I can look on this man’s disciplinary reprimand as an anachronism — the same way I would look at a lawyer’s old discipline for marijuana possession now. In both situations, it’s not the lawyer who erred — it’s us.

What to do if you are stopped for DUII

Perspective from a Portland DUII lawyer:

Let’s say you meet some friends downtown after a long week of hard work. You catch up, and have 2 beers over the course of your time together. On your drive home, you signal 75 feet before making a lane change — the law requires a continuous signal for at least 100 feet. An officer who has been following you turns on overhead lights.

“The reason I pulled you over is for not signalling at least 100 feet before your lane change. License, registration and insurance, please. I can smell some alcohol, how much have you had to drink tonight?”

The best answer would be, “My lawyer tells me to never answer that question.” By using the word “lawyer,” you’ve made it clear you’re not interested in incriminating yourself. The officer is sworn to uphold the law, and is supposed to stop asking questions of anyone who invokes their right to a lawyer. However, that likely won’t happen, and the questions will continue.

*If you admit to drinking any alcohol, the officer will later call it “the admission of drinking” and use it to hurt you. This does not mean you should lie! Just invoke your right to counsel, or silence. Or both.

“Well, I’m just trying to keep the streets safe tonight. Where are you coming from?”

“You know, my lawyer tells me not to answer any questions, I’m sorry.” Don’t SAY you know your rights, SHOW you know your rights.

Now the officer is stuck. You’ve made it clear that you are not a source of evidence against yourself, and he has to decide if he has seen enough to justify arresting you for a crime. If he hasn’t, he’ll send you on your way. If he has, he’ll arrest you. There will also be a request for field sobriety testing, but the Constitution says we’re not required to reveal our thoughts, beliefs, or state of mind — so consider that. If you respectfully decline, the officer will tell you he might use it against you at a later hearing. If you’re arrested, don’t freak out — the officer made that decision a long time ago. Now you’ve got to figure out what to do about the breath test.

For most people looking at a first-time DUII arrest, it’s a good idea to blow. First, you might blow well under the legal limit. Second, even if you blow over the limit, the license suspension penalties are much gentler for a failed breath test, rather than a refusal. Third, as a Portland DUII lawyer, I see more officers getting warrants for blood draws if a driver refuses. Nobody wants a cop, or cop-friendly paramedic, sticking a needle in their arm. In any event, if you have any doubts, ask the officer to let you call a lawyer in privacy before making the breath test decision. They’re supposed to give you at least 15 minutes to do this.

If you blow under the legal limit, great! But keep your mouth shut. Some officers can’t believe they got it wrong, and will call in another officer to consider whether you are under the influence of drugs. They do this primarily by asking you, “What drugs have you taken?” Remember, we have a Bill of Rights that says we don’t have to answer police questions. “I invoke my right to silence and counsel” works, as does, “I don’t answer questions. I want my lawyer here during any questions.” As a practical matter, this cuts-off (and is intended to cut-off) all police questioning.

If you blow over the legal limit, keep your cool. Continue not making any statements (silence is not ever supposed to be used against you). Call a good Portland DUI lawyer the next morning! Important timelines come up very quickly.

You might ask why you would call a Portland DUII lawyer instead of someone local to your community. By all means, if there’s a good DUII lawyer in your town, go with that person. However, we’re becoming a bit of a rare breed in parts of Oregon. If you can’t find a DUII attorney to help you, consider calling someone in Portland. Because we live and work in an area with a lot of people, and a lot of police agencies, it means we deal with a lot of DUII arrests — and incredibly well-trained, experienced, battle-hardened officers. Sometimes your local doctor can handle all your needs, but sometimes you want a specialist — who handles nothing but your kind of problem. Like doctors, lawyers tend to specialize if we can — and we can in a high-density area. Call the best DUII lawyer you can find.

Note: DUI and DUII and DWI are acronyms that describe various state crimes — in Oregon, it’s DUII (Driving Under the Influence of Intoxicants). Remember that it is NOT illegal to drive after having consumed intoxicants — like beer, or marijuana / cannabis / THC, or prescription medication — but it is illegal if your mental or physical faculties are adversely affected to a noticeable or perceptible degree because of the alcohol, or drug. For example, most of us take a mood-altering drug every morning before we drive — coffee, with caffeine, a stimulant. None of us are “under the influence” of that coffee, although we’re all “affected” by it — we’re just not “adversely affected” by it. I drive better after a cup of coffee than I would without it. Similarly, studies have shown that small amounts of various drugs have little to no effect on driving (in fact, two studies showed single doses of alcohol led to performance gains in motorcyclists on a closed track!). So, like much in life, it comes down to moderation. It’s not illegal to drink and drive — it is if you’ve had too much. Be careful out there, and get a good Portland DUII lawyer on your side!

IID False Positives: donuts, bagels, Altoids, and coffee

How to avoid IID false positives? Don’t eat or drink anything within 15 minutes of using an Ignition Interlock Device (IID). And since they come with “rolling re-tests,” don’t eat or drink while driving at all.

That’s the advice I give everyone about IIDs. It is shocking, and a life-change for many busy people who typically have coffee or food while driving. I give this advice, however, for a few different reasons: Continue reading

IID Employer Exemption

If you’re required to have an Ignition Interlock Device (IID) by the Oregon DMV, there’s an exception that permits you to drive employer-owned vehicles without an IID if: (1) you tell your employer as referenced below; and (2) you have proof you’ve told your employer on you when you drive. Here’s the law as amended by HB 2116 (2013): Continue reading

DUII Mugshot Websites and HB 3467

Many of my DUII clients have been victimized by the “mugshot” websites or “Busted”-type magazines. Those entities prey on human frailty. Their customers are, in a documented sense, dealing with truly low self-esteem.

On one hand, who cares about the troglodytes who would buy (!) Busted or check out those websites? On the other hand, many employers “Google” someone before offering them a job? Continue reading

Relicensing and Proof of Treatment

For folks looking to reinstate their driving privileges: DMV’s rules require proof of successful alcohol treatment before you can get your license back following a DUII conviction. There are a only a few, narrow exceptions: (1) it’s been more than 15 years; (2) a Circuit Court judge signs an order that says you made “sufficient steps” to complete treatment; or (3) it’s an out-of-state DUII conviction we’re talking about. The rule reads as follows:

735-070-0085 Continue reading

Not Illegal to Drink & Drive — Court Surprised?

In reading the Oregon Supreme Court’s new opinion on State v. Moore, I was shocked to see this statement: “As part of the state’s effort to deter persons from driving after drinking, ORS 813.010 creates the crime of driving under the influence of intoxicants.” Slip Op. at 5-6 (Dec 12, 2013). Continue reading