- What are the chances of an “Implied Consent” suspension being challenged successfully?
- I am already suspended or have no license to drive. Why should I challenge the “Implied Consent” suspension with the DMV?
- Are there any benefits to challenging the “Implied Consent” suspension aside from regaining my driving privileges?
- What are the grounds for defeating the suspension of my driving privileges at a DMV “Implied Consent” hearing?
- Will I need to testify at my DMV hearing?
- Will the decision in the “Implied Consent” process have any effect on my criminal charge of DUII?
- What choices will I have to make throughout my DUII case?
- What about the DUII Diversion Program?
- I blew less than the legal limit of .08% on the Intoxilyzer. How can I be prosecuted for DUII?
- Is it better to blow or not to blow on the Intoxilyzer?
- How does my CDL affect my ability to enter Diversion?
Attorneys who practice in the area of DUII defense find that many “Implied Consent” suspensions can be successfully challenged even where a person refused to blow or blew more than .08% Blood Alcohol Content (BAC) on the Intoxilyzer test. Of course, there is no guarantee that an “Implied Consent” suspension can be successfully challenged. On the other hand, if no challenge is made, the suspension will take effect automatically.
I am already suspended or have no license to drive. Why should I challenge the “Implied Consent” suspension with the DMV?
Driving while suspended under the “Implied Consent” law is a criminal offense, and carries much more serious penalties than driving while unlicensed or driving while suspended for other reasons.
Are there any benefits to challenging the “Implied Consent” suspension aside from regaining my driving privileges?
Yes. The “Implied Consent” hearings are conducted “on the record” with sworn testimony from one or more police officers who were involved in the arrest and processing of a DUII case. Defense attorneys are allowed to cross examine the police at an “Implied Consent” hearing. Testimony is available for use once the case gets to court. Defense attorneys experienced in handling DUII cases can make good use of the testimony of the police, within the context of a Motion to Suppress Evidence or a trial on the merits of a DUII charge. Considering that depositions are generally not conducted in Oregon criminal matters, the “Implied Consent” hearing offers defense attorneys a unique opportunity to get sworn testimony from adverse witnesses in advance of trial.
What are the grounds for defeating the suspension of my driving privileges at a DMV “Implied Consent” hearing?
Attorneys who represent individuals accused of DUII frequently raise issues at a DMV hearing pertaining to the reasons for the initial stopping of the driver, the probable cause for the arrest, and the administration of the Intoxilyzer test. Other issues that may be relevant at a DMV hearing include the qualifications of the officer to administer Field Sobriety Tests and whether the driver asked for an attorney during the investigation. Suspensions can sometimes be challenged successfully for reasons that would not be apparent to someone who lacks knowledge and experience in this complicated area of law and practice.
Not usually. When represented by counsel, appearance is optional. However, there are cases where the driver should testify. This is one of many reasons why a person facing an accusation of DUII needs an attorney who is skilled in handling DUII cases.
Whether you “win” or “lose” your DMV hearing has no binding effect on the criminal prosecution of your case in court. However, if you prevail, the logic of the decision by the Administrative Law Judge may be persuasive in influencing the prosecutor or court to be more lenient on you than they might be otherwise. Also, regardless of the result of your “Implied Consent” hearing, the testimony at your hearing can provide the foundation for a successful defense to the criminal charge.
Many first time DUII offenders in Oregon have the option of entering the DUII Diversion Program. This is not for everyone, and you need an attorney who is experienced and skilled in handling DUII cases to evaluate your case and determine whether it is the best choice for you. Legislation effective as of January 1, 2004, requires the motorist to execute a plea of guilty or “no contest” to the criminal charge of DUII in order to enter the Diversion Program. Consequently, the motorist should not enter Diversion without first being advised by legal counsel concerning the risks and benefits of the options that are available. If Diversion is not an option, you will have to choose whether to plead guilty or fight your case all the way to trial. If you end up being convicted, either by plea of guilty or after trial, you will need an attorney to be your advocate for the least severe form of punishment possible. Other tactical and strategic decisions will arise during the process. At all stages, it can be crucial for you to have an attorney experienced and skilled in handling DUII matters.
The eligibility requirements for DUII Diversion include that you must not have had a previous DUII conviction or Diversion within the previous 10 years, and there must not have been any other person injured in connection with the matter. If you are eligible and if you choose to enter DUII Diversion, you must file the paperwork with the court within 30 days of your arraignment. A person entering Diversion must file a plea of guilty or “no contest”, which will take effect in the event that the accused fails to complete Diversion successfully. In order to complete Diversion successfully, you are required to pay certain fees to the court, you will have to be evaluated to determine the extent of your alcohol problem, and you must complete alcohol treatment as required. You will also have to attend a defendant’s impact panel. Provided that you satisfy all requirements of the program, are not arrested for a new DUII offense, and pay all fees, at the conclusion of one year, your DUII charge will be dismissed. Any other companion charges (such as Reckless Driving, Hit & Run, Driving While Suspended, and traffic infractions), however, are not dismissed as a result of participation in DUII Diversion. Attorneys are sometimes able to achieve lenient treatment on those additional charges for a client who opts for Diversion.
The law does not require that the prosecutor prove that your Blood Alcohol Content (BAC) was .08% or greater. There are other ways the State can prove a person guilty of DUII. For example, if the motorist exhibited poor driving, performed poorly on the Field Sobriety Tests or admitted to consuming too much alcohol, this could be evidence that could convict a person of DUII despite a BAC of less than .08%. In addition, DUII can apply where a person’s condition is affected by substances other than alcohol, both legal and illegal. An attorney must examine all the circumstances before advising a person whether a case can be beaten in court.
By the time a person consults an attorney to discuss this, the decision has usually been made already. However, certain points can be made. On the one hand, under Oregon’s “Implied Consent” law, the suspension period for refusing to give a breath sample is much longer than the suspension period for failing a breath test. Recent legislation imposes a fine up to $1000 for a motorist who refuses to submit to a breath test. Another factor weighing in favor of taking the test can be that, sometimes, a person is able to get a “good” reading on the Intoxilyzer test. On the other hand, if a person refuses to give a breath sample, the police are deprived of what might be considered to be incriminating evidence. A further consideration is that some people can live their life without major disruption while waiting out an “Implied Consent” suspension, while for many others such a suspension can have a crippling effect on one’s work and lifestyle.
CDL holders are disqualified from entering the DUII Diversion Program.