Should I Start Alcohol Treatment Early?

If convicted of DUII, or if you enter DUII Diversion, you have a right to “participate in the selection of the treatment program,” and it’s not unusual for people to start alcohol treatment voluntarily before meeting with ADES. It’s admirable to do so, it serves public safety goals, and it demonstrates early recognition of an alcohol problem (a consideration for the court in whether to allow DUII Diversion, ORS 813.220(2)). Although ADES is not required to agree to the provider you’ve selected, they should — in order to honor your rights listed below.

309-019-0115
Individual Rights

(1) In addition to all applicable statutory and constitutional rights, every individual receiving services has the right to:
(a) Choose from available services and supports, those that are consistent with the Service Plan, culturally competent, provided in the most integrated setting in the community and under conditions that are least restrictive to the individual’s liberty, that are least intrusive to the individual and that provide for the greatest degree of independence;
(b) Be treated with dignity and respect;
(c) Participate in the development of a written Service Plan, receive services consistent with that plan and participate in periodic review and reassessment of service and support needs, assist in the development of the plan, and to receive a copy of the written Service Plan;
(d) Have all services explained, including expected outcomes and possible risks;
(e) Confidentiality, and the right to consent to disclosure in accordance with ORS 107.154, 179.505, 179.507, 192.515, 192.507, 42 CFR Part 2 and 45 CFR Part 205.50.
(f) Give informed consent in writing prior to the start of services, except in a medical emergency or as otherwise permitted by law. Minor children may give informed consent to services in the following circumstances:
(A) Under age 18 and lawfully married;
(B) Age 16 or older and legally emancipated by the court; or
(C) Age 14 or older for outpatient services only. For purposes of informed consent, outpatient service does not include service provided in residential programs or in day or partial hospitalization programs;
(g) Inspect their Service Record in accordance with ORS 179.505;
(h) Refuse participation in experimentation;
(i) Receive medication specific to the individual’s diagnosed clinical needs;
(j) Receive prior notice of transfer, unless the circumstances necessitating transfer pose a threat to health and safety;
(k) Be free from abuse or neglect and to report any incident of abuse or neglect without being subject to retaliation;
(l) Have religious freedom;
(m) Be free from seclusion and restraint;
(n) Be informed at the start of services, and periodically thereafter, of the rights guaranteed by this rule;
(o) Be informed of the policies and procedures, service agreements and fees applicable to the services provided, and to have a custodial parent, guardian, or representative, assist with understanding any information presented;
(p) Have family and guardian involvement in service planning and delivery;
(q) Make a declaration for mental health treatment, when legally an adult;
(r) File grievances, including appealing decisions resulting from the grievance;
(s) Exercise all rights set forth in ORS 109.610 through 109.697 if the individual is a child, as defined by these rules;
(t) Exercise all rights set forth in ORS 426.385 if the individual is committed to the Authority; and
(u) Exercise all rights described in this rule without any form of reprisal or punishment.
(2) Notification of Rights: The provider must give to the individual and, if appropriate, the guardian, a document that describes the applicable individual’s rights as follows:
(a) Information given to the individual must be in written form or, upon request, in an alternative format or language appropriate to the individual’s need;
(b) The rights, and how to exercise them, must be explained to the individual, and if appropriate, to her or his guardian; and
(c) Individual rights must be posted in writing in a common area.
Stat. Auth.: ORS 161.390, 413.042, 430.256, 426.490 – 426.500, 428.205 – 428.270, 430.640 & 443.450
Stats. Implemented: ORS 109.675, 161.390 – 161.400, 179.505, 413.520 – 413.522, 426.380- 426.395, 426.490 – 426.500, 430.010, 430.205 – 430.210, 430.240 – 430.640, 430.850 – 430.955, 443.400 – 443.460, 443.991, 461.549, 743A.168, 813.010 – 813.052 & 813.200 – 813.270
Hist.: MHS 6-2013(Temp), f. 8-8-13, cert. ef. 8-9-13 thru 2-5-14; MHS 4-2014, f. & cert. ef. 2-3-14

Personnel
415-054-0420
Screening and Referral

(1) Each individual shall be assured the same civil and human rights as other persons. The ADES shall provide services in a manner that protects individual privacy and dignity.
(2) The ADES must provide the rights to the individual in written form or in a requested primary language or other alternative format, explain the rights and respond to the individual’s related questions.
(3) The ADES must place in the individual record the individual’s signed acknowledgement that the individual received these rights.
(4) In addition to all applicable statutory and constitutional rights, every individual receiving services has the right to:
(a) Participate in the selection of the treatment program;

(b) Have the role of the court, treatment program and ADES monitoring process explained where the DUII system is concerned;
(c) Confidentiality and the right to consent to disclosure in accordance with 42 CFR Part 2.
(d) Give informed consent in writing prior to the start of services, except as otherwise permitted by law;
(e) Pursuant to ORS 179.505, inspect all parts of their individual record which originated from the ADES within five working days of the request. The individual must obtain copies of documents which originated from other sources from the original source. The individual may be responsible for the cost of duplication.
(f) Receive prior notice of service conclusion or transfer, unless the circumstances necessitating service conclusion or transfer pose a threat to health and safety;
(g) Be free from harassment, abuse or neglect and to report any incident of harassment, abuse or neglect without being subject to retaliation;
(h) Have religious freedom;
(i) Be informed of the policies and procedures, service agreements and fees applicable to the services provided;
(j) Have a custodial parent, guardian or representative assist with understanding any information presented;
(k) Receive a copy of the ADES’s or demonstration project’s grievance process which shall include the Division and Disability Rights of Oregon telephone numbers. The individual shall:
(A) File a written grievance without any form of reprisal;
(B) Receive a written response to the grievance within 30 days and
(C) File an appeal with the Division if dissatisfied with the ADES’s response.
(l) Exercise all rights described in this rule without any form of reprisal or punishment
Stat. Auth.: ORS 409.410, 413.042
Stats. Implemented: ORS 409.410, 109.675, 179.505, 430.010, 430.205 – 430.210, 430.240 – 430.640, 430.850 – 430.955, 461.549, 743A.168, 813.010 – 813.055 & 813.200 – 813.270
Hist.: ADS 4-2010(Temp), f. & cert. ef. 9-20-10 thru 3-9-11; ADS 2-2011. f. 3-8-11, cert. ef. 3-9-11

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]

Oregon DUII Diversion — How Long to Decide?

If you’re arrested for DUII and you’re eligible for the Oregon DUII Diversion program, the law generally requires that you file your Diversion petition within 30 days of your first court appearance. ORS 813.210(1). However, that deadline can be extended for “good cause.” ORS 813.210(1)(a). The legislature didn’t give us much guidance on what constitutes “good cause,” but they told us what doesn’t: filing a motion to suppress, demurrer, omnibus hearing, or starting a trial.

In 2013 Oregon passed a “Brady Bill,” codifying the discovery obligations of Brady v. Maryland, 373 US 83 (1963). The prosecutor must disclose police reports, notes, and any lab note results of blood alcohol content (BAC). ORS 135.815(1), (3). But subsection (2) addresses timing, indicating those disclosures “shall occur without delay after arraignment and prior to the entry of any guilty plea pursuant to an agreement with the state. If the existence of the material or information is not known at that time, the disclosure shall be made upon discovery without regard to whether the represented defendant has entered or agreed to enter a guilty plea.” ORS 135.815(2).

Most courts understand that a guilty or no contest plea entered without full discovery is on its face not an intelligent and knowing plea. That is, without a lab report indicating what BAC the state attributes to the defendant, the defendant cannot know how her lawyer would defend the case. Lawyers do not defend under-the-limit DUII cases the same way we defend over-the-limit DUII cases. An accurate measurement of BAC can help protect the innocent and convict the guilty, and it is arguably the most important piece of evidence in any DUII case — because it harks from science, not opinion.

Point being: even though the legislature didn’t tell us what “good cause” meant for delaying an Oregon DUII Diversion decision, they did tell us that we’re not supposed to permit guilty pleas without full discovery.

There are times where it may, nevertheless, be wise to enter a plea to enter DUII Diversion without full discovery. For instance, if you feel that you were three sheets to the wind while driving, and you want to start the Diversion obligations, you are not required to wait until blood draw results come back from the Crime Lab (which typically take 6-8 weeks at the time of this writing). The nice thing about starting Diversion obligations in that situation are: (1) they then end sooner; (2) sometimes starting the process of Diversion helps deal with guilt or shame brought on by the arrest; (3) the Ignition Interlock Device (IID) requirement can start during a time when you’re already suspended for refusing or failing a breath test; and (4) early recognition of an alcohol problem can be looked on favorably by courts and prosecutors in relation to other pending charges from the night of the arrest (Reckless Driving, Reckless Endangering, etc.).

The short answer to “how long you have to decide” is: 30 days from your first court appearance. But if discovery is not complete, the law makes clear that you shouldn’t be required to enter a plea and enter the Oregon DUII Diversion program just yet — to give up your rights and defenses at trial, you have to know about what they’d be. And most lawyers can’t tell you how they’d defend your case without knowing what the BAC is.

Oregon DUII Diversion — What Do I Have to Do?

DUII Diversion is an admirable Oregon experiment. Most states don’t have it — if you get arrested for DUII, your only choices are: going to trial or pleading guilty. Some states, like Washington, permit plea bargaining on a DUII to something like “Wet Reckless.” Oregon forbids plea bargaining by statute — but we’ve got a great program if nobody got hurt, you don’t have a CDL, and you have no prior DUIIs or court-ordered treatment in the past 15 years. Oregon’s system is based on the philosophy that everybody can make a mistake. Oregon recognizes the nuance in the law: it is NOT illegal to drink and drive, but it is if you have too much. Living with and embracing that nuance means that occasionally we’ll err in judgment. Folks that make that error should get education, and be sent on their way. And it works — the vast majority of clients who come to me for DUII Diversion never have another run-in with the law. They either completely divorce drinking from driving; or they are very moderate and thoughtful when they mix the two; or they teetotal.

Here are the nuts and bolts of Oregon DUII Diversion, both the affirmative obligations and the agreed-upon prohibitions:

Affirmative Obligations:
1. Pay the filing fee.
2. Attend VIP.
3. Successfully complete alcohol and drug evaluation and treatment.

Prohibitions:
1. No driving any vehicle without an Ignition Interlock Device (IID). You’ll have to prove 90-days flawless IID compliance to get your full driver license back too, see ORS 813.635(2).
2. No use of intoxicants, except pursuant to prescription. No use of alcohol, except for religious rites post-treatment (Communion, Passover, etc.). I say “post-treatment” because there’s a requirement of demonstrated abstinence during treatment that seems to trump the statute’s acknowledgement of religious freedom. Using alcoholic mouthwash, tinctures, or hand sanitizer is not a religious rite — don’t do it during Diversion!

Another of your DUII Diversion obligations will be to keep the court apprised of your mailing address — because if the court wants to kick you out of Diversion (for, e.g., driving without an Ignition Interlock Device (IID), blowing booze into the IID, or dirty UAs), the court will mail you notice of the hearing to end Diversion and put you in jail. If you don’t show up, you are convicted in absentia. In other words, you must scrupulously review your mail during the entire year of DUII Diversion, and immediately let your lawyer know if you get a notice from the court.

If you comply with all these requirements, your lawyer will file a formal motion to dismiss the DUII at the end of the one-year Diversion period. There is not usually any court date at the end of the year. Instead, the DUII Diversion contract simply ends by its own terms, like a 1-year lease, and the court then waits for your lawyer to file a motion to dismiss. “Dismissed” does not mean “off my record.” It would be on your record for the rest of your life, and not subject to expungement. Every police officer who ran your record would believe your were a drinking driver (at least at one point in your life), so you should expect inquiries about drinking on traffic stops. Any prospective employer, or anyone else running your record, would likely see your DUII Diversion. I mention this because many people think “dismissed” means “off my record” — it doesn’t. For trouble with international travel, see here: DUII Diversion & International Travel

Oregon DUII Diversion starts the day you plead guilty or no contest in court to enter the program. Don’t drive to court unless (a) you still are licensed to drive and (b) you’ve had the IID installed. You cannot drive any vehicle without an IID during Diversion. If you’re suspended at the time you enter Diversion, there’s no need to install an IID while suspended, but at the end of the suspension period you must visit a full-service DMV to get your license reinstated. Then, someone else can drive your car to an IID installer. Once the IID is installed and you have a valid driver license, you can drive the car without violating the Diversion agreement.

The law requires camera IIDs. This is to defeat a claim later that you were not the driver if alcohol is blown into the device. Read my blog about avoiding eating and drinking while or near the time of driving, here: IID False Positives
You cannot use alcohol of any kind during Diversion. Do not use perfume or cologne with alcohol during Diversion. Odds are, your IID will sense those substances and report to the court that you are drinking and driving. Do not use mouthwash, shampoo, tinctures, or any other substance with alcohol during Diversion.

On the day you enter DUII Diversion, the court may order that you be “booked and released,” pursuant to this statute: “ORS 813.245 Booking. When a court grants a petition for a driving while under the influence of intoxicants diversion agreement, a court shall ensure that the defendant submits to booking, if the defendant has not already been booked on the charge of driving while under the influence of intoxicants in violation of ORS 813.010.” Although “book and release” sounds like a 5 minute process, depending on jail considerations it seems to take between 20 minutes to 2 hours.

After entering DUII Diversion in court, you’ll have two separate evaluations — one with your treatment provider, and one with the court’s evaluator, commonly called “ADES” (Alcohol and Drug Evaluation Services). You don’t have to wait for the ADES evaluation to start treatment. The law says you get to “participate” with ADES in the process to find a treatment provider. If you show up for your evaluation and already have a treatment provider, ADES can “participate” to make sure it’s a good fit, but I’ve never had ADES demand that you quit any particular licensed treatment provider. See OAR 415-054-0420(4) (“In addition to all applicable statutory and constitutional rights, every individual receiving services has the right to: (a) Participate in the selection of the treatment program”). You want to find a treatment provider that is convenient to your home or work, and who will treat you as a customer rather than as a criminal. You’re not required to start treatment early — but if you think you have an alcohol problem, or are experiencing acute anxiety, I suggest starting treatment now — it can help with both those issues.

For both evaluations (at ADES and your treatment provider), the evaluator relies on: (1) your BAC; (2) the police reports; and (3) the interview with you. You’ll be asked if you think you have an alcohol problem. Be aware that some ADES subscribe to the MADD view that a DUII arrest comes after 80 instances of driving under the influence. There’s an ancient saying, “Know before whom you stand.” I’d rather have you know who you’ll be talking to in the Diversion process than finding out later. For an idea of the information evaluators are fed, see the MADD DUII statistics page here: MADD statistics

Oregon DUII Diversion is a noble experiment, and saves courts vast sums in trial, administrative and jail costs. It’s a not-terrible way to deal with a first DUII. But if your DUII is defensible, or you’re a poor candidate for Diversion, talk with a good DUII lawyer about trial. Your Diversion lawyer should talk to you about trial in any event, since the plea form specifically provides that your lawyer has told you about how he or she would defend your case if it went to trial. Listen carefully, and if you want to give up those rights, do it — but go into the Diversion program with open eyes. Know what you’re getting into, and self-examine to see if you can and will do it.

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

Canada & DUII Diversion

People in the U.S. with pending DUIIs, or with completed DUII Diversions, convictions or arrests, all may face some barriers with Canada travel. To ensure entry, the best thing to do is to get permission ahead of time. The Canadian Embassy calls this permission a “waiver of exclusion.” The process can take a few weeks Continue reading

IIDs, DUII Diversion, and Absurdity: Forklifts, Skateboards, and Bicycles

Oregon’s DUII Diversion statute provides, as of January 1, 2012: “The court shall require as a condition of a driving while under the influence of intoxicants diversion agreement that an approved ignition interlock device be installed in any vehicle operated by the person during the period of the agreement when the person has driving privileges.” [http://www.oregonlaws.org/ors/813.602]

The ignition interlock device (IID) requirement doesn’t apply to just “motor vehicles.” The phrase is “any vehicle.” That includes the obvious motor vehicles like motorcycles, ski-boats, and jet-skis, but what about bicycles and skateboards? ORS 801.590 (‘”Vehicle” means any device in, upon or by which any person or property is or may be transported or drawn upon a public highway and includes vehicles that are propelled or powered by any means.’).” At first, you might think there’s a escape valve here: ORS 801.026(6) provides, “Devices that are powered exclusively by human power are not subject to those provisions of the vehicle code that relate to vehicles.” Until you read the next sentence:  ”Notwithstanding this subsection, bicycles are generally subject to the vehicle code as provided under ORS 814.400.”

So you don’t need an ignition interlock on a non-motorized skateboardSee, e.g., State v. Smith, 184 Or App 118 (2002) (skateboard not a vehicle for purposes of Oregon Vehicle Code). You technically need an IID for your bicycle. But compliance is impossible, since bicycles sans motor are also sans ignition. In this situation, we’re left with the hope that impossibility is still a defense in the law. Cf. State v. Chilson, 219 Or App 136 (2008).

Remember, the IID requirement applies off-road too, even on private land — it’s for “any vehicle.” Riding your motorcycle in the dunes? Driving a forklift in a private warehouse for work? Both would violate the terms of your Diversion contract — if you do those things “during the period of the agreement when the person has driving privileges.” So if you ride your dirt bike in the dunes while your license is suspended (coincidentally — that’s Driving While Suspended (DWS) because the dunes are premises open to the public), you haven’t violated your Diversion agreement. If you reinstate your license and do the same, you have violated the terms of your Diversion agreement. Same goes for the forklift operator in the private warehouse.

Now, to make it more complicated: as of January 1, 2014, House Bill 2116 will amend ORS 813.602 to grant two exemptions from the IID requirement: (1) medical inability; and (2) employer-owned vehicles. For a medical exemption, the driver must prove to the court the elements of the medical exemption. For employer-owned vehicles, the driver must notify her employer that “the employee has driving privileges and is otherwise required to install an [IID] as a condition of a [DUII] diversion agreement” and must carry the notification and the reinstated license with her while driving.