Frequently asked DUII questions

1. The most common way that an officer can prove this is with standardized field sobriety tests (often called FST's or SFST's).
   1. Officers are trained to perform standardized field sobriety tests to help them determine if you are impaired. There are three standard tests that officers often perform.
      1. The Horizontal Gaze Nystagmus Test HGN – This test trains officers to look for the involuntary movement of your eyes that occurs if you’re under the influence of alcohol and some drugs. It is a highly specific and detailed test for officers to perform.
      2. The Walk and Turn Test (W+T) is another detailed test that officers administer--it challenges your ability to listen, and then follow instructions while at the same time maintaining balance during the walking stage of the test. You’ll be instructed to take nine steps, turn, and walk nine steps back, while counting aloud the number of steps. Officers are trained to identify 8 "clues" during the test which are moments when someone does not follow instructions exactly, or loses balance. We actually talk about this exact test on our blog.
      3. One-Leg Stand (OLS) is just like the Walk and Turn Test-- it challenges your ability to listen and follow instructions while maintaining balance on one leg. Police Officers are trained to identify 4 "clues" during the test which involve moments when you cannot maintain balance in various ways.
         1. Both the Walk and Turn test and the One-Leg Stand test are divided attention tests, which mean they require you to listen and then follow instructions while performing physical movements. Officers are trained that impaired individuals have difficulty with dividing their attention. This is exactly why these test are administered in a DUII investigation.
   2. There are also non-standardized tests that officers perform on people they suspect are impaired. These tests are not as scientifically tested as the above tests.
      1. Often, officers will have you complete an "alphabet test" which requires you to recite only a part of the alphabet--often not starting on "A" and stopping on "Z"
      2. Officers can also have you do a count-down test which requires you to count numbers aloud and in reverse from higher numbers to lower numbers.

1. Often when an officer suspects that someone is impaired by drugs, they will call a "DRE" officer. "DRE" stands for Drug Recognition Evaluator. A DRE officer is an officer who has received specialized, intense training to help him or her detect impairment in drivers under the influence of drugs other than, or in addition to, alcohol.

There are 12 steps a DRE officer typically goes through to determine if you are under the influence of a controlled substance:

1. A blood alcohol content (BAC) analysis is done. If your blood alcohol content (BAC) exceeds 0.08 percent, the DRE protocol ends.
2. The DRE officer interviews the arresting officer to obtain information about your behavior and any physical symptoms.
3. The DRE officer conducts an initial physical exam by checking your eyes for equal tracking from side-to-side, and pupil size, checking the pulse, and asking general health questions. This step is intended to see if you’re impaired by a medical condition.
4. The DRE officer conducts standard eye examinations developed to detect intoxication: horizontal gaze nystagmus (HGN), vertical gaze nystagmus (VGN), and lack of convergence (LOC).
5. The DRE officer conducts standard eye examinations that are meant to detect intoxication: horizontal gaze nystagmus (HGN), vertical gaze nystagmus (VGN), and lack of convergence (LOC).
6. The DRE officer checks (three different times) the person's pulse, blood pressure, and body temperature.
7. The DRE officer measures the person's pupil size under three light conditions (near total darkness, indirect light, and direct light), and looks at the person's nose and mouth for signs of drug ingestion.
8. The DRE officer checks your muscle tone for extreme flaccidity (really relaxed) or rigidity (really tense).
9. The DRE officer inspects your body for injection sites.
10. The DRE officer conducts a focused interrogation and observation of your behavior.
11. Considering the results of all the foregoing procedures, the DRE officer develops a formal opinion identifying the drug you took.
12. The DRE officer obtains a urine sample for toxicological testing.

1. There are no Oregon Driver's License consequences for refusing to take field sobriety tests.
2. But your refusal to do field sobriety tests could be used against you at trial if the officer gave you specific warnings.

Oregon drivers are bound by the implied consent law. Implied consent means that by driving a motor vehicle in Oregon, you have implied that you will consent to a breath, blood, or urine test if a police officer asks you to take a test. This request usually happens after you have been arrested for DUII. The law is designed to be unavoidable. You fail the test if your blood alcohol is .08 percent or more. If you are under 21, you will fail if you have any amount of alcohol in the blood.

It is important to know that after a DUII arrest, there are now potentially 2 separate entities that have an effect on your driving privileges. The first is the Department of Motor Vehicles (the "DMV") and the second is the court system. The DMV, after receiving notice that you have either failed or refused a breath, blood, or urine test can suspend a license anywhere from 90 days to a number of years. A driver’s license suspension is entirely separate and independent from whatever will happen with a court case that involves the same incident.

The table below describes license suspensions through the DMV and the wait times before you can get a hardship permit:

The only way to avoid a Implied Consent license suspension through the DMV is to prevail at a DMV hearing.

On the back of the Implied Consent Combined Report (ICCR) that the officer should have given you after your arrest for a DUII (the long yellow piece of paper that may also be your temporary driver's license), are instructions for how to request a DMV hearing. You only have until 5 PM the 10th day from your arrest to request a hearing for failure of a breath test or for refusing a breath, blood, or urine test. If you fail a blood test, you will receive information in the mail on how to request a hearing. The request for a hearing must be in writing.

The hearing is a chance for you to contest the implied consent suspension of your license. This suspension is independent from any suspension of your driver's license that might occur as ordered by a Judge in your criminal case. An administrative law judge oversees the hearing and the officer or officers you encountered the night of your arrest testify. An attorney can appear on your behalf at the hearing. Your license suspension will be upheld if the Department of Motor Vehicles can prove certain elements under Oregon law with substantial evidence.

• You may think the officer did everything correctly--but you don't know until you have a hearing. The officer you interacted that night will be questioned specifically about whether they followed the law during the arrest. Sometimes officers do not follow the law as they should or did not follow the rules regarding the administration of the breath test.
• There is no downside to requesting a hearing--you will not be penalized, nor will your suspension be longer because you request a hearing.
  • We generally tell clients that there is about a 20 percent chance of winning a DMV hearing - not the greatest of odds, but much better than no odds at all.
• DMV hearings are very valuable trial preparation. Your attorney will be able to cross examine the officer, and use the transcript from the hearing at trial to question the officer's testimony. The strengths and weaknesses of your case will also come through after your attorney has the opportunity to examine an officer at a DMV hearing.

The table below describes mandatory minimum sentencing requirements under Oregon Law (these are minimums, meaning the court cannot sentence a person to less, but can certainly sentence a person to more jail or fines than these minimums reflect):

You'll also have to do an "Alcohol/Drug Package" which involves a drug and alcohol evaluation and treatment, attendance at a victim's impact panel (VIP), and a prohibition against consuming any alcohol or other intoxicants.

The court date on your criminal citation is the date and time you need to appear in court for your arraignment – this is not the trial date, but typically a procedural court appearance. At a criminal arraignment, you will learn exactly what crimes you are charged with, and you will receive the next court date for your case.

Depending on the court and the charges you face, if Reynolds Defense Firm represents you, we may be able to cancel the arraignment for you altogether, or may be able to appear in court for you on your behalf without you needing to be there. With that said, unless you have a lawyer tell you otherwise, you must be at the arraignment, or the court can issue a warrant for your arrest.

The short answer is no! In fact, many judges will not even accept a guilty plea to a DUI charge at an arraignment because they know you have probably not been able to get the police reports for your case and have not had time to meaningfully discuss your case with a lawyer. Without trying to be overly frightening or dramatic, a DUII in Oregon is either a Class A Misdemeanor or a Class C Felony – a conviction of either charge means likely jail time, probation, license suspension, and significant court fines.

Please do everything you can to be sure you are making an educated decision before you tell a court you are guilty of committing crime, and yes, this means talking with an attorney. Of course the decision is yours - you don’t have to talk with an attorney at all, and you sure don’t have to call Reynolds Defense Firm, but we think the peace of mind it will give you will probably help you sleep better tonight. For a free consultation, please call us at 503.223.3422.

If your suspension is for a failed or refused breath, blood, or urine test, these are typical outcomes:

*Increased:

The length of your suspension is increased if in the past five years you have:

1. Been convicted of DUII or a similar charge,
2. Participated in Diversion or in a similar drug or alcohol program, OR
3. Had your Oregon license suspended for failing, or refusing a breath, blood, or urine test.

If your suspension is for a DUII conviction:

Suspension rules differ for those holding an Oregon Commercial Driver’s License (CDL)

If your suspension is for a failed or refused breath, blood, or urine test:

*Increased:

The length of your suspension is increased if in the past five years you have:

1. Been convicted of DUII or a similar charge,
2. Participated in Diversion or in a similar drug or alcohol program, OR
3. Had your Oregon license suspended for failing, or refusing a breath, blood, or urine test.

If your suspension is for a DUII conviction:

For more information about Hardship Permits:

• Hardship Permit Application
• Oregon DMV

Suspension and hardship permit rules differ for those holding an Oregon Commercial Driver’s License (CDL)

If you are charged with a crime, and you missed your first court date, please talk with a lawyer who knows what he or she is doing immediately. We are serious, this case could go from “not good” to “really bad” very quickly.

At the point you didn’t show up in court, the judge likely issued a bench warrant for your arrest. A bench warrant means you are in danger of a police officer coming to your home or work, placing you under arrest, and taking you to jail until the court can sort this out. If you are charged with a DUII, this can also result in an additional suspension of your driver’s license, and may prevent you from entering a DUI Diversion program. Regardless of what criminal charge you initially faced, the district attorney can add another criminal charge - Failure to Appear - that you would also have to face.

A good lawyer can mitigate many of these consequences for you, depending on the unique circumstances of your case, but the earlier in the process you bring that attorney on board, the more effective he or she can be for you. If you do not have an attorney, please contact Reynolds Defense Firm so we can help you address this urgent and time sensitive issue immediately.

As a general rule in Oregon, for the first 30 days after the day of your arrest, you still have the same driving privileges as before you were arrested, but you are driving with a temporary permit instead of your original driver’s license.

To see if you have a temporary permit, look through your paperwork for the yellow, legal-sized form titled “Implied Consent Combined Report.” At the bottom of this form is a section that starts with “Eligible for Temporary Permit” with a box checked “yes” or “no.”

If the box is checked “yes,” you should legally be able to drive for 30 days from the date of your arrest (assuming you aren’t suspended for any other reason, and that the paperwork is correct). Make sure to have the temporary license with you if you plan on driving during that time – that piece of paper is what you would show an officer if you are pulled over. Also, be sure to read the language on the temporary license closely—it expires at 12:01 AM on the date listed on the bottom right-hand corner of the form. In reality, this means that you can only drive with that license through the day before the listed date.

Bottom line – If the police stop you when you are driving after your temporary license expires, and you don’t have a hardship permit, you could be charged with the crime of Driving While Suspended (DWS). This is a Class A misdemeanor charge in Oregon (the same level offense as a DUII).