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.

DUII Trial — Won’t the Court Impose More Jail?

Oregon DUII defendants are frequently concerned about an increased  jail penalty if they lose at trial after rejecting a plea deal.

It is unlawful for a court to “impose a sentence that is longer than it would have been had [one] not exercised the right to go to trial or not utilized a defense that was inconsistent with owning up to his misdeeds.” State v. Fitzgibbons, 114 Or App 581, 586 (1992). “[C]ourts must not use the sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice. * * * [T]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.” 114 Or App at 586-87 (quoting State v. Smith, 52 Or App 681 (1981), and United States v. Stockwell, 472 F2d 1186, 1187 (9th Cir), cert den 411 US 948 (1973)).

Fitzgibbons reversed a 10-day jail sentence for harassment based in part on the judge’s commentary “that negotiated pleas are based upon whether or not someone is willing to accept responsibility for their behavior and talk to the Court about that behavior and move on with their life or whether they wish to go to trial, they wish to contest it. Those are two different mind sets. I’m dealing with two different people, I’m dealing with two different situations. That’s what I’m looking at. I’m not looking at a penalty for a trial.” 114 Or App at 585-86. The Court of Appeals found sentencing with those considerations was, in fact, a trial penalty. Id.

Reversal was similarly required in State v. Qualey, 138 Or App 74 (1995):

“From my perspective [defendant], you traumatized [the victim] twice: Once was on the day of the incident, and the second was putting him through this court hearing here again. That was a choice you made after lots of reflection, [and] after plenty of opportunity to consider the alternatives * * *.”

After the court conveyed the terms of defendant’s sentence, defendant’s attorney questioned the motivation behind the sentencing decision:

“It sounds as though part of the sentence being imposed is because [defendant] exercise[ed] his constitutional right to have a trial. He is being penalized because he asked for a trial, and the District Attorney felt compelled to call the witness.”

The court responded:

“[Defendant] is entitled to exercise his rights. He is not insulated from the consequences of doing that when it harms other people and there are viable alternatives. * * * The District Attorney offered him Assault in the Fourth Degree and no jail time prior to trial, and [defendant] decided to roll the dice and gamble. That involved not only him and court time and you and the D.A., but it also involved the witnesses, including a small child * * *. That was a decision [defendant] made and he is not insulated from the consequences of that simply because he had a constitutional right to make that decision.”

138 Or App at 76-77 (emphasis in original). Reversal was required – trial penalties simply impermissibly burden and chill a defendant’s absolute right to her day in court.

Point being: it is unlawful for a court to issue a harsher punishment to an Oregon DUII defendant who loses at trial than to a defendant who enters a plea without trial. That’s because trial is a right — not a license, or a privilege. One cannot be punished for exercising a right. Otherwise, it’s not a right at all.

There are two scenarios where I risk more jail by going to trial: (1) where the DA makes a plea offer that dismisses charges (especially more serious charges — particularly if they’re Measure 11); or (2) where the defendant testifies. Scenario 1 is self-explanatory. Scenario 2 happens because some judges propose that if a defendant testified, yet a jury found them guilty, the jury must have believed there was lying in the court. For that reason, among many others, it’s often a better idea in DUII trials to not testify or offer additional evidence. Now that more DUIIs are videotaped, I find less reason to call clients as witnesses at trial — because they’ve said everything important on that video, on the night of the arrest. And in a case where you don’t testify, the judge instructs the jury: “A defendant has an absolute constitutional right not to testify. Therefore, a defendant’s decision not to testify cannot be considered as an indication of guilt. It should not be commented on or in any way considered by you in your deliberations.”

My experience with juries (including being on a jury) leads me to believe that jurors honor and follow those instructions. They want to follow the law, and they will enforce the Constitution. Juries are a great bulwark against the accusatory power of the state — a power that, unchecked, can destroy lives based on raw accusation.

AFTERWARD

This blog post was — surprisingly to me — probably our firm’s most controversial. Most comments on Facebook came from defense lawyers defending judicial practice in their locality of punishing people for exercising their right to trial. Some of the posters took a “federalist” bent, arguing that a trial penalty is perfectly OK in federal courts. The argument forgets that we have state law right on point — and we don’t get to federal law until we deal first with state law. We are not dealing with a blank slate, with no state law decision.

The case is Fitzgibbon, cited above. What follows is a portion of the trial judge’s impermissible commentary that resulted in reversal for re-sentencing: “And you know and I know that in Federal Court that negotiated pleas are based upon whether or not someone is willing to accept responsibility for their behavior and talk to the Court about that behavior and move on with their life or whether they wish to go to trial, they wish to contest it” (emphasis added). In other words, the Court of Appeals has met this “federal sentencing” argument, and said: NOT HERE. If you can be punished for exercising a right, it is no right at all.

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. “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.

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.

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. If things get sticky, or you’re unsure of how to proceed, it’s best to contact an attorney who specializes in this area.

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.

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.

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

SR-22 & IID after DUII Conviction — Oregon License Reinstatement

There’s been some confusion here. For Oregon license reinstatement after a DUII conviction, you must first wait out the suspension period, and then:

(a) file a SR-22 insurance certificate with DMV for 3 years, ORS 806.075; and

(b) install an Ignition Interlock Device (IID) for 1 year for a first conviction; and 2 years for second, ORS 813.602(1). 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.