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OREGON DUII GUIDE



David N Lesh
Oregon DUII Defense Attorney
Oregon Super Lawyer 2018 and 2019

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What are some of the penalties I face if I am convicted of a DUII in Oregon?

In Oregon, state law requires the court to impose a number of penalties when someone is convicted of a DUII.  Sometimes a sentencing judge may impose a range of penalties.  Some form of probation is nearly always imposed upon conviction.  An exception is if a defendant is sentenced to prison which results in post-prison supervision instead of probation. 

The following conditions are nearly always imposed as part of a probation sentence:

  • jail of 48 hours to six months;
  • a fine of $1000 - $3500;
  • substance abuse treatment;
  • no bars / taverns / intoxicants;
  • attendance at a Victims Impact Panel;
  • a license suspension or revocation of one year, three years, or lifetime.

See ORS 137.540 for a list of general conditions of probation which apply unless deleted by the court.  If you violate probation, the court can impose additional jail time.

Some penalties are not imposed by the court but must be completed in order to reinstate your license following a suspension.  These include the filing of an SR-22 and installation of an ignition interlock device.

Keep in mind that if you enter and complete diversion many of these penalties will not be imposed.

 


 

 

      ORS 813.010 Driving under the influence of intoxicants; penalty. (1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

      (a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150;

      (b) Is under the influence of intoxicating liquor, cannabis, a controlled substance or an inhalant; or

      (c) Is under the influence of any combination of intoxicating liquor, cannabis, a controlled substance and an inhalant.

      (2) A person may not be convicted of driving while under the influence of intoxicants on the basis of being under the influence of a controlled substance or an inhalant unless the fact that the person was under the influence of a controlled substance or an inhalant is pleaded in the accusatory instrument and is either proved at trial or is admitted by the person through a guilty plea.

      (3) A person convicted of the offense described in this section is subject to ORS 813.020 in addition to this section.

      (4) Except as provided in subsection (5) of this section, the offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any premises open to the public.

      (5)(a) Driving while under the influence of intoxicants is a Class C felony if the current offense was committed in a motor vehicle and the person has, at least three times in the 10 years prior to the date of the current offense, been convicted of, or been found to be within the jurisdiction of the juvenile court for an act that if committed by an adult would be, any of the following offenses in any combination:

      (A) Driving while under the influence of intoxicants in violation of:

      (i) This section; or

      (ii) The statutory counterpart to this section in another jurisdiction.

      (B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination thereof.

      (C) A driving offense in another jurisdiction that involved operating a vehicle, an aircraft or a boat while having a blood alcohol content above that jurisdiction’s permissible blood alcohol content.

      (b) For the purposes of paragraph (a) of this subsection, a conviction or adjudication for a driving offense in another jurisdiction based solely on a person under 21 years of age having a blood alcohol content that is lower than the permissible blood alcohol content in that jurisdiction for a person 21 years of age or older does not constitute a prior conviction or adjudication.

      (6) In addition to any other sentence that may be imposed, the court shall impose one or more of the following fines on a person convicted of driving while under the influence of intoxicants as follows:

      (a) For a person’s first conviction, a minimum of $1,000.

      (b) For a person’s second conviction, a minimum of $1,500.

      (c) For a person’s third or subsequent conviction, a minimum of $2,000 if the person is not sentenced to a term of imprisonment.

      (d) For a person who drives a vehicle while the person has 0.15 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150, a minimum of $2,000.

      (7) Notwithstanding ORS 161.635, $10,000 is the maximum fine that a court may impose on a person convicted of driving while under the influence of intoxicants if:

      (a) The current offense was committed in a motor vehicle; and

      (b) There was a passenger in the motor vehicle who was under 18 years of age and was at least three years younger than the person driving the motor vehicle. [1983 c.338 §587; 1985 c.16 §293; 1987 c.138 §5; 1991 c.835 §7; 1999 c.619 §3; 1999 c.1049 §1; 2003 c.14 §495; 2003 c.445 §1; 2007 c.879 §3; 2009 c.525 §1; 2009 c.613 §1; 2017 c.21 §80]

 

        ORS 813.011 Felony driving under the influence of intoxicants; penalty. (1) Driving under the influence of intoxicants under ORS 813.010 shall be a Class C felony if the defendant has been convicted of driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense.

      (2) Once a person has been sentenced for a Class C felony under this section, the 10-year time limitation is eliminated and any subsequent episode of driving under the influence of intoxicants shall be a Class C felony regardless of the amount of time which intervenes.

      (3) Upon conviction for a Class C felony under this section, the person shall be sentenced to a mandatory minimum term of incarceration of 90 days, without reduction for any reason. [2011 c.1 §3; 2011 c.598 §2]

 

      ORS 813.400 Suspension or revocation upon conviction; duration; review. (1) Except as provided in subsection (2) of this section, upon receipt of a record of conviction for misdemeanor driving while under the influence of intoxicants, the Department of Transportation shall suspend the driving privileges of the person convicted. The suspension shall be for a period described under Schedule II of ORS 809.428, except the department shall not reinstate any driving privileges to the person until the person complies with future responsibility filings. A person is entitled to administrative review under ORS 809.440 of a suspension imposed under this subsection.

      (2) A person convicted of felony driving while under the influence of intoxicants, or a person convicted of misdemeanor driving while under the influence of intoxicants for a third or subsequent time, is subject to revocation of driving privileges as provided in ORS 809.235. [1983 c.338 §353(8); 1985 c.16 §166(8); 1985 c.393 §10a(8); 1985 c.669 §2a(8); 1991 c.702 §13; 2001 c.786 §3; 2003 c.346 §1; 2003 c.402 §40; 2005 c.436 §2]

 

      ORS 137.540 Conditions of probation; evaluation and treatment; fees; effect of failure to abide by conditions; modification. (1) The court may sentence the defendant to probation subject to the following general conditions unless specifically deleted by the court. The probationer shall:

      (a) Pay supervision fees, fines, restitution or other fees ordered by the court.

      (b) Not use or possess controlled substances except pursuant to a medical prescription.

      (c) Submit to testing for controlled substance, cannabis or alcohol use if the probationer has a history of substance abuse or if there is a reasonable suspicion that the probationer has illegally used controlled substances.

      (d) Participate in a substance abuse evaluation as directed by the supervising officer and follow the recommendations of the evaluator if there are reasonable grounds to believe there is a history of substance abuse.

      (e) Remain in the State of Oregon until written permission to leave is granted by the Department of Corrections or a county community corrections agency.

      (f) If physically able, find and maintain gainful full-time employment, approved schooling, or a full-time combination of both. Any waiver of this requirement must be based on a finding by the court stating the reasons for the waiver.

      (g) Change neither employment nor residence without prior permission from the Department of Corrections or a county community corrections agency.

      (h) Permit the parole and probation officer to visit the probationer or the probationer’s work site or residence and to conduct a walk-through of the common areas and of the rooms in the residence occupied by or under the control of the probationer.

      (i) Consent to the search of person, vehicle or premises upon the request of a representative of the supervising officer if the supervising officer has reasonable grounds to believe that evidence of a violation will be found, and submit to fingerprinting or photographing, or both, when requested by the Department of Corrections or a county community corrections agency for supervision purposes.

      (j) Obey all laws, municipal, county, state and federal.

      (k) Promptly and truthfully answer all reasonable inquiries by the Department of Corrections or a county community corrections agency.

      (L) Not possess weapons, firearms or dangerous animals.

      (m) Report as required and abide by the direction of the supervising officer.

      (n) If recommended by the supervising officer, successfully complete a sex offender treatment program approved by the supervising officer and submit to polygraph examinations at the direction of the supervising officer if the probationer:

      (A) Is under supervision for a sex offense under ORS 163.305 to 163.467;

      (B) Was previously convicted of a sex offense under ORS 163.305 to 163.467; or

      (C) Was previously convicted in another jurisdiction of an offense that would constitute a sex offense under ORS 163.305 to 163.467 if committed in this state.

      (o) Participate in a mental health evaluation as directed by the supervising officer and follow the recommendation of the evaluator.

      (p) If required to report as a sex offender under ORS 163A.015, report with the Department of State Police, a city police department, a county sheriff’s office or the supervising agency:

      (A) When supervision begins;

      (B) Within 10 days of a change in residence;

      (C) Once each year within 10 days of the probationer’s date of birth;

      (D) Within 10 days of the first day the person works at, carries on a vocation at or attends an institution of higher education; and

      (E) Within 10 days of a change in work, vocation or attendance status at an institution of higher education.

      (q) Submit to a risk and needs assessment as directed by the supervising officer.

      (2) In addition to the general conditions, the court may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both, including, but not limited to, that the probationer shall:

      (a) For crimes committed prior to November 1, 1989, and misdemeanors committed on or after November 1, 1989, be confined to the county jail or be restricted to the probationer’s own residence or to the premises thereof, or be subject to any combination of such confinement and restriction, such confinement or restriction or combination thereof to be for a period not to exceed one year or one-half of the maximum period of confinement that could be imposed for the offense for which the defendant is convicted, whichever is the lesser.

      (b) For felonies committed on or after November 1, 1989:

      (A) Be confined in the county jail, or be subject to other custodial sanctions under community supervision, or both, as provided by rules of the Oregon Criminal Justice Commission; and

      (B) Comply with any special conditions of probation that are imposed by the supervising officer in accordance with subsection (9) of this section.

      (c) For crimes committed on or after December 5, 1996, sell any assets of the probationer as specifically ordered by the court in order to pay restitution.

      (d) For crimes constituting delivery of a controlled substance, as those terms are defined in ORS 475.005, or for telephonic harassment under ORS 166.090, or for crimes involving domestic violence, as defined in ORS 135.230, be prohibited from using Internet websites that provide anonymous text message services.

      (3)(a) If a person is released on probation following conviction of stalking under ORS 163.732 (2)(b) or violating a court’s stalking protective order under ORS 163.750 (2)(b), the court may include as a special condition of the person’s probation reasonable residency restrictions.

      (b) If the court imposes the special condition of probation described in this subsection and if at any time during the period of probation the victim moves to a location that causes the probationer to be in violation of the special condition of probation, the court may not require the probationer to change the probationer’s residence in order to comply with the special condition of probation.

      (4) When a person who is a sex offender is released on probation, the court shall impose as a special condition of probation that the person not reside in any dwelling in which another sex offender who is on probation, parole or post-prison supervision resides, without the approval of the person’s supervising parole and probation officer, or in which more than one other sex offender who is on probation, parole or post-prison supervision resides, without the approval of the director of the probation agency that is supervising the person or of the county manager of the Department of Corrections, or a designee of the director or manager. As soon as practicable, the supervising parole and probation officer of a person subject to the requirements of this subsection shall review the person’s living arrangement with the person’s sex offender treatment provider to ensure that the arrangement supports the goals of offender rehabilitation and community safety. As used in this subsection:

      (a) “Dwelling” has the meaning given that term in ORS 469B.100.

      (b) “Dwelling” does not include a residential treatment facility or a halfway house.

      (c) “Halfway house” means a publicly or privately operated profit or nonprofit residential facility that provides rehabilitative care and treatment for sex offenders.

      (d) “Sex offender” has the meaning given that term in ORS 163A.005.

      (5)(a) If the person is released on probation following conviction of a sex crime, as defined in ORS 163A.005, or an assault, as defined in ORS 163.175 or 163.185, and the victim was under 18 years of age, the court, if requested by the victim, shall include as a special condition of the person’s probation that the person not reside within three miles of the victim unless:

      (A) The victim resides in a county having a population of less than 130,000 and the person is required to reside in that county;

      (B) The person demonstrates to the court by a preponderance of the evidence that no mental intimidation or pressure was brought to bear during the commission of the crime;

      (C) The person demonstrates to the court by a preponderance of the evidence that imposition of the condition will deprive the person of a residence that would be materially significant in aiding in the rehabilitation of the person or in the success of the probation; or

      (D) The person resides in a halfway house. As used in this subparagraph, “halfway house” means a publicly or privately operated profit or nonprofit residential facility that provides rehabilitative care and treatment for sex offenders.

      (b) A victim may request imposition of the special condition of probation described in this subsection at the time of sentencing in person or through the prosecuting attorney.

      (c) If the court imposes the special condition of probation described in this subsection and if at any time during the period of probation the victim moves to within three miles of the probationer’s residence, the court may not require the probationer to change the probationer’s residence in order to comply with the special condition of probation.

      (6) When a person who is a sex offender, as defined in ORS 163A.005, is released on probation, the Department of Corrections or the county community corrections agency, whichever is appropriate, shall notify the city police department, if the person is going to reside within a city, and the county sheriff’s office of the county in which the person is going to reside of the person’s release and the conditions of the person’s release.

      (7) Failure to abide by all general and special conditions of probation may result in arrest, modification of conditions, revocation of probation or imposition of structured, intermediate sanctions in accordance with rules adopted under ORS 137.595.

      (8) The court may order that probation be supervised by the court. If the court orders that probation be supervised by the court, the defendant shall pay a fee of $100 to the court. Fees imposed under this subsection in the circuit court shall be deposited by the clerk of the court in the General Fund. Fees imposed in a justice court under this subsection shall be paid to the county treasurer. Fees imposed in a municipal court under this subsection shall be paid to the city treasurer.

      (9)(a) The court may at any time modify the conditions of probation.

      (b) When the court orders a defendant placed under the supervision of the Department of Corrections or a community corrections agency, the supervising officer may file with the court a proposed modification to the special conditions of probation. The supervising officer shall provide a copy of the proposed modification to the district attorney and the probationer. If the district attorney:

      (A) Files an objection to the proposed modification less than five judicial days after the proposed modification was filed, the court shall schedule a hearing no later than 10 judicial days after the proposed modification was filed, unless the court finds good cause to schedule a hearing at a later time.

      (B) Does not file an objection to the proposed modification less than five judicial days after the proposed modification was filed, the proposed modification becomes effective five judicial days after the proposed modification was filed.

      (10) A court may not order revocation of probation as a result of the probationer’s failure to pay restitution unless the court determines from the totality of the circumstances that the purposes of the probation are not being served.

      (11) It is not a cause for revocation of probation that the probationer failed to apply for or accept employment at any workplace where there is a labor dispute in progress. As used in this subsection, “labor dispute” has the meaning for that term provided in ORS 662.010.

      (12)(a) If the court determines that a defendant has violated the terms of probation, the court shall collect a $25 fee from the defendant and may impose a fee for the costs of extraditing the defendant to this state for the probation violation proceeding if the defendant left the state in violation of the conditions of the defendant’s probation. The fees imposed under this subsection become part of the judgment and may be collected in the same manner as a fine.

      (b) Probation violation fees collected under this subsection in the circuit court shall be deposited by the clerk of the court in the General Fund. Extradition cost fees collected in the circuit court under this subsection shall be deposited by the clerk of the court in the Arrest and Return Account established by ORS 133.865. Fees collected in a justice court under this subsection shall be paid to the county treasurer. Fees collected in a municipal court under this subsection shall be paid to the city treasurer.

      (13) As used in this section, “attends,” “institution of higher education,” “works” and “carries on a vocation” have the meanings given those terms in ORS 163A.005. [Amended by 1965 c.346 §1; 1969 c.597 §125; 1977 c.371 §3; 1977 c.380 §2; 1981 c.671 §1; 1983 c.588 §2; 1985 c.818 §2; 1987 c.780 §3; 1989 c.790 §16; 1991 c.196 §1; 1991 c.630 §5; 1991 c.731 §1; 1993 c.14 §11; 1993 c.680 §16; 1997 c.313 §24; 1999 c.626 §11; amendments by 1999 c.626 §34 repealed by 2001 c.884 §1; 2001 c.726 §§1,2; 2001 c.884 §5; 2005 c.264 §3; 2005 c.558 §1; 2005 c.567 §8; 2005 c.576 §1a; 2005 c.642 §1; 2009 c.111 §1; 2009 c.204 §5; 2009 c.659 §§21,23; 2009 c.713 §11; 2011 c.595 §162; 2013 c.649 §24; 2015 c.198 §1; 2015 c.350 §2; 2017 c.21 §40; 2017 c.670 §3; 2017 c.689 §1]

 

      ORS 137.542 Probation conditions related to medical use of cannabis. (1) As used in this section, “cannabinoid concentrate,” “cannabinoid extract,” “medical cannabinoid product,” “registry identification card” and “usable marijuana” have the meanings given those terms in ORS 475B.791.

      (2) Notwithstanding ORS 137.540, the conditions of supervision of a person who holds a registry identification card and is sentenced to probation related to the use of usable marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of supervision of a person sentenced to probation related to prescription drugs. [2016 c.24 §51]

 

 

 

 

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