Motion to Vacate IID Requirement in Oregon DUII Diversion

Oregon courts can vacate your DUII Diversion Ignition Interlock Device (IID) agreement after 6 months if you show:

(1) You’ve had the device installed for at least 6 months;

(2) In that 6 months, you’ve had zero “negative reports”; and

(3) You’re in compliance with your alcohol and drug treatment program. Since those programs require a minimum 90-days of demonstrated alcohol and drug abstinence, hopefully you’re done with treatment at 6 months. If you’ve had a dirty UA (urine analysis) during treatment, you will be required to re-start treatment, and at a higher (and more expensive) level of care. More meetings, more time, more hassle (and, of course, you could have Diversion revoked for even a single dirty UA). The key to winning in DUII Diversion really, truly is: abstain from alcohol and drugs for the full year of your contract with the court.

For the IID, a “negative report” is “a report of tampering with an ignition interlock device, unauthorized removal of an ignition interlock device, lockout or a test violation recorded by an ignition interlock device.” ORS 813.645.

ORS 813.645 motivates DUII Diversion petitioners to install the IID promptly upon Diversion entry, to get the 6-month clock rolling. The statute also encourages us to have zero dirty UAs in treatment since we have to prove “compliance.” If you’re sick of the device, ask your lawyer to file a motion to vacate the IID requirement at the 6-month mark. Some lawyers build this into their fee agreements, some ask for an additional fee (it is, of course, more legal work), and some will simply do it for free as a courtesy. If you don’t have a lawyer, consider hiring one for this motion to the court — you always have a better chance of things working out for you with a well-respected lawyer at your side. No matter what, you’ll be the one doing the leg-work to get the reports of (a) “compliance” in treatment and (2) 6-months of IID reports sans “negative reports.”

Your lawyer will assemble those documents into a motion to the court, asking to vacate the IID requirement. A hearing may be required, and although your appearance isn’t explicitly required by the statute, odds are slightly better if you show. The court may consider your BAC (Blood Alcohol Content) and other circumstances from your arrest. The text of the statute is here:

ORS 813.645 Motion to vacate requirement to install and use ignition interlock device; rules. (1)(a) As used in this section, “negative report” includes a report of tampering with an ignition interlock device, unauthorized removal of an ignition interlock device, lockout or a test violation recorded by an ignition interlock device.
(b) The Department of Transportation may by rule further define what constitutes a test violation.
(2) A defendant may apply by motion to the court in which a driving while under the influence of intoxicants diversion agreement described in ORS 813.230 was entered for an order vacating the requirement to install and use an ignition interlock device if the defendant:
(a) Has complied with the condition of the diversion agreement described in ORS 813.602 (3) for at least six consecutive months and provides a certificate to the court from the ignition interlock device provider stating that the device has not recorded a negative report; and
(b) The defendant has entered into and is in compliance with any treatment program that the person is required to participate in as a condition of diversion.
(3) The defendant shall cause to be served on the district attorney or city prosecutor a copy of the motion for an order vacating the requirement to install and use an ignition interlock device under ORS 813.602 (3). The copy of the motion shall be served on the district attorney or city prosecutor at the time the motion is filed with the court. The district attorney or city prosecutor may contest the motion.
(4) The court shall hold a hearing on a petition filed in accordance with subsection (2) of this section. In determining whether to grant the petition, the court shall consider:
(a) The nature of the underlying crime for which driving privileges were suspended.
(b) The blood alcohol content of the defendant at the time of the arrest.
(c) Any other relevant factors.
(5) The court may vacate a defendant’s requirement to install and use an ignition interlock device under ORS 813.602 (3) if, after a hearing described in subsection (4) of this section, the court finds by a preponderance of the evidence that the petitioner:
(a) Has complied with the condition of the diversion agreement described in ORS 813.602 (3) for at least six consecutive months with no negative reports; and
(b) Has entered into and is in compliance with any treatment program required as a condition of diversion.
(6) When a court vacates a defendant’s requirement to install and use an ignition interlock device under ORS 813.602 (3), the court shall notify the department. [2015 c.577 §4]