Oregon DUI Defense -- 503.974.6133
Henry LeSueur is an experienced Oregon Criminal Defense and DUI lawyer who represents individuals charged with crimes in Multnomah, Washington, and Clackamas Counties. He handles both misdemeanors and felony cases and he has an emphasis on protecting people charged with Driving Under the Influence of Intoxicants (DUI or DUII).
- Oregon DUII
- Typical Lawyer Fees for a DUI
- Oregon DUI Diversion
- Getting a DUI for the First Time
- Consequences of DUI
- Felony DUI
- DUII License Suspension
- Taking a DUI to Trial
- The DUI Intensive Supervision Program (DISP)
- Reckless Driving and Criminal Mischief
- Ignition Interlock Device
- Jail Sentences for First Time DUI Convictions by Oregon County
- Other Crimes
1. Driving Under the Influence of Intoxicants: DUII in Oregon. -[top]
DUII is a pretty common charge in Oregon. Alcohol being so popular in our world, it's no suprise that the roads are filled with drivers who are driving around a little buzzed. To a certain extent, society tolerates that behavior. It is not illegal to have a drink and then drive, but it is illegal to drive while impaired by drugs or alcohol. The crime of DUI tries to draw a line in between driving responsibly after drinking alcohol and criminally driving drunk.
This line is not an easy line to define. We have on the one hand a society that unceasingly promotes the consumption of alcohol. On the other hand, we have a real duty to ensure that people are not driving around endangering others because of alcohol. To make things easier, Oregon lawmakers drew a bright line. In Oregon, you are said to be legally drunk if your blood alcohol content (BAC) is above .08%. In most cases a person's BAC is determined by a breath sample (called "the blow"). The blow tends to be the most important part of any DUI case because juries tend to place a lot of weight on the .08 standard. I have seen cases, however, where juries have acquitted someone with a blow as high as .16 and sent someone to jail with a blow as low as .05.
Convicting someone with a .05 blow is possible (though rare) because Oregon prosecutors have a second standard for finding someone guilty in their bag of tricks. If the state is able to prove, regardless of the blow, that a person's mental or physical capabilities were adversely affected by drugs or alcohol while driving a car, then they can secure a DUI conviction that way as well.
Generally, the prosecutors and police in the Portland tri-county area are quite strict about DUIs. Many DUI charges are filed every month and it is not uncommon to see someone with a .07 or even a .06 blow being charged with a DUI. It is also fairly common to be charged with Reckless Driving along with a DUI. Most DUIs end up being funneled into diversion or into a plea deal, but DUI defense lawyers also know when to bring a DUI to trial.
2. Typical Lawyer Fees -[top]
Oregon lawyer fees for defense on a DUI charge can from $1,500 to $10,000 and up depending on the lawyer and depending on the case.
Our firm does DUI representations on a flat-fee basis that depends upon the complexity of the case. Because the majority of cases are resolved without a trial, we offer low pre-trial representation fees that give you the comfort of legal representation without the high initial retainers charged by other firms. We can solve most first-time offender cases for a fee of $1500 flat. Only if your case is heading for trial do you pay for the preparation and execution of a trial. This two-tier fee approach keeps costs to a minimum.
Cases that require multiple or lengthy court appearances cost more. If you are a student or have other special financial circumstances then we are open to working with you on reduced fees or payment plans. We will often work with people on payment plans when they are unable to pay the initial retainer immediately, but need representation right away. Please call to discuss our affordable DUI legal fees.
3. Diversion -[top]
What is diversion? How long or how many weeks is the diversion program? Can I drink alcohol on diversion? How much does diversion cost?
Oregon's DUI Diversion Program is great for qualified individuals who want to quietly and easily take care of their DUI. To be eligible for diversion you must meet a certain set of requirements. Most first-time offenders are eligible, but notably excepted are people who have commercial drivers licenses. The laws regarding diversion eligibility have recently changed. Under the old laws, a person was eligible if they had not completed a diversion program within the past 10 years. Today, the new law says that you are eligible only if you have not undergone a previous diversion program in the past 15 years. Additional disqualifying considerations include whether someone was injured as a result of the DUI incident or the defendant has participated in a court ordered drug or alcohol treatment program in the past.
The diversion program is a program of education and counseling. To successfully complete diversion, a person must attend a victim impact panel, take an alcohol evaluation, go to recommended treatment classes, and pay a host of fees. Other requirements include not driving without a valid license, not driving after having any alcohol, not committing any traffic crimes, and generally obeying the law. The victim impact panel is a one-time class that is typically given at a hospital. There, you will see some gruesome images and hear from people whose lives have been adversely affected by drunk drivers. The alcohol evaluation is another one-time item that must be completed. A county evaluator will review your police reports, your DMV driving record, and have an in person interview with you to determine how serious your treatment needs to be. At a minimum, the lightest treatment schedule anyone can receive is to demonstrate 90 days of sobriety. As of January 2012, there is an additional requirement of the Oregon Diversion Program. The participant must have an ignition interlock device installed in their car and operable for any driving that occurs during the one year DUI Diversion period.
Diversion operates differently in every county as far as the nuts and bolts of getting through the process and into the program. We have successfully entered individuals into diversion programs in every major Oregon county, including Washington County, Clackamas County, Multnomah County, Hood River County, and Marion County. Furthermore, we have experience in many of the city (or "municipal") courts that operate within these counties. Finally, you should note that the diversion period in Oregon lasts a full year. At the end of the year, if you have successfully completed the requirements of the program, then your lawyer can have the original DUI charge dismissed as if it never happened.
It is legal for you to drive while you are in diversion. However, there is a zero-tolerance policy of drinking and driving while in diversion. Any alcohol while you are behind a wheel is too much. Furthermore, you must completely abstain from alcohol use while you are doing the "sobriety" portion of your treatment (typically at least 90 days). The diversion application fees total $492, and this amount can be paid on a payment plan with the court. The victim impact panel typically costs $50 and the alcohol evaluation costs $150. There are additional costs for the treatment program. We know a few ways to save you money on the treatment end of things. Give us a call to make an appointment and we will make the diversion process very smooth for you.
4. Getting a DUI for the first time -[top]
You've just gotten a DUI. What now?
Getting a DUI for the first time is a pretty stressful experience. Many people who are charged with DUI have never been charged with a crime before. You probably have a lot of questions about what is going on. This section of the website is meant to provide a portrait of a typical first-time DUI experience.
Your first court date is called your "arraignment." It is at your arraignment that the state will read its charges against you. You will be asked to enter a plea: guilty or not guilty? You will plead "not guilty" because we don't know what kind of evidence the state has against you. We can change this plea later if we have to but there is typically no going back once you plead guilty. It is only after your arraignment that we learn how strong the state's case is -- this process is called "discovery."
The state's evidence will consist of a police report detailing your stop and arrest as well as various documents regarding field sobriety tests, blood or breath tests, and possibly an audio or a video recording depending on the jurisdiction. Once we have that packet of information in our hands we can begin analyzing it for its various strengths and weaknesses.
When we analyze your case we are looking for both legal challenges as well as factual challenges. For instance, we might make a legal objection to the officer pulling you over in violation of your constitutional rights. An example of a factual challenge would be to challenge the police officer's administration of the field sobriety tests -- many times police administer these tests improperly which leads to false positives.
A very tough choice
Most people facing first-time DUI charges have a very important choice to make: do you fight the DUI or do you go into diversion? Oregon DUI diversion is a program that allows you to have your first DUI dismissed from your criminal record after completing a year of probation and all of the attendant conditions. If you do everything right there is no jail time but there are some hefty fines. Not everyone is eligible for diversion although most are.
The other option is to fight the DUI. For a first time DUI charge it almost always makes sense to enter diversion rather than to fight the charge. The result of fighting your first-time DUI and losing it is that you don't get to elect diversion after you are found guilty -- that is, you'll definitely end up with a conviction on your record and at least a couple of days in jail or some some hefty community service (plus all of the diversion requirements anyway).
Nevertheless, we like to fight DUIs here and we know how to stand our ground when the law is on our side. Our firm has experience analyzing and trying DUI cases both in the role of prosector and defense attorney. We know what it takes to put someone in jail for DUI and what it takes to keep someone out. If your case is the right type of case to try, we'll tell you why. Ultimately the choice is yours.
Fighting your DUI
When we want to fight the DUI our case will be put on the "trial docket" at the county courthouse. It can take a while to get an actual trial date, but once we do most DUI trials can be finished in a day or two depending on the complexity of the case.
At trial you may elect to have a judge or a jury decide your case. If we have legal challenges then we argue those to a judge before the jury comes in. If the judge rules in our favor then that can oftentimes mean that the state has no choice but to dismiss the charges. We make our factual arguments to the trier of fact -- typically a jury.
The prosecutor must prove to the jury that you are guilty beyond a reasonable doubt. This legal standard imposes a very high burden on the state. Our strategy at trial is centered upon finding the factual grey-areas and leveraging them into reasonable doubt.
In the end juries can be unpredictable. Having a good lawyer who has experience talking to juries and trying cases is going to maximize your odds of success. Give us a call to find out if we can help you.
5. Consequences of a DUI Conviction -[top]
What happens if I have a second DUI after Diversion? What happens if I am convicted of DUI?
A DUI conviction is a Class A misdemeanor in Oregon. The maximum possible fine and jail time for a Class A misdemeanor is a $6,250 fine and up to a year in jail. It is, however, very rare for an individual to receive that penalty. In reality DUI is a very common crime and the penalties for DUI are relatively standardized. The person with the final say in every case is the sentencing judge, but generally anyone convicted of a DUI faces a very similar punishment.
First, anyone convicted of a DUI must take an alcohol evaluation and must participate in alcohol treatment based on that evaluation. Second, that person must attend a "victim impact panel" to hear from people whose lives have been affected by DUI. Third, there is a minimum amount of jail time or community service that must be served. Jail time can range from 2-10+ days depending on the facts of the case. Community service options require 80 hours of community service as a minimum. Other consequences of a conviction include being placed on probation, fines and fees of at least $1000, a mandatory Oregon drivers license suspension, and a court mandate that you cannot drink alcohol.
If this is your second DUI, and you have previously completed a diversion program, then the courts will typically extend "first time offender" treatment to you. It has become increasingly common for people with a first time dui conviction (diversion does not count as a conviction) to have a standard sentence of 2 days jail as their jail time. In Multnomah County, one specific judge has pioneered a program called the "expedited DUI plea" program that offers 80 hours of community service to people with first-time convictions.In my experience, other counties typically issue jail time, but depending on your unique situation, other outcomes are possible.
6. Felony DUI-[top]
What makes a DUI a felony in Oregon? What are the consequences of a felony DUI?
Until recently, a person could only receive a felony DUI if they had three previous DUI convictions within the past 10 years. That law has recently become more strict; today, a DUI is a felony DUI if an individual has had two dui convictions in the past 10 years (diversion doesn't count as a conviction). A felony DUI is a Class C felony, which means that the maximum penalty is 5 years in prison and a $125,000 fine. The "presumptive" sentence for a person convicted of felony DUI is 13 months in prison, which is quite harsh.
If you or your loved on is charged with a felony DUI, you will want to have the best representation possible to mitigate the damages. We have been able to successfully save several individuals from the serious conseuqnces of this charge, but we have also seen people do some serious time. Perhaps you are reading this section as a first-time offender, thinking that you will never, ever, receive a felony. That's a good thought to have.
7. Suspension of Driving Privileges -[top]
Will my license be suspended for a DUI or a diversion? How long is a DUI license suspension? How do I get a hardship permit?
It is important to know that there are two different systems at play when you receive a DUI charge in Oregon: the DMV, and the criminal court. If you are arrested for a DUI and fail a breath test, then under most scenarios, you will lose your license for 90 days. You will be eiligible for a hardship permit after 30 days of your suspension. Typically, the police will give you a yellow form with a temporary permit after you fail a breath test. This permit will allow you to drive for 30 more days before the 90 day suspension begins. The consequences for refusing a breath test are more serious. If you refused your test, then your license will be suspended for a full year. The same temporary permit rule applies, and you will have 30 days to get your affairs in order. After that, you will be suspended. If you are suspended for a year, then you must wait 90 days before applying for a hardship permit.
If you are convicted of a DUI in an Oregon Criminal Court, then there is a seperate license suspension that is part of the mandatory sentence. Note that entering diversion is not a conviction. If you are convicted of a first-time DUI then you will lose your license for one year. You may apply for a hardship permit after 90 days. If you have a prior DUI conviction from within the past five years then you will lose your license for three years. You may apply for a hardship permit in this scenario after 90 days. Third-time DUI convictions result in lifetime revocation of your driving privileges. However, you may apply to the court to get your license back after 10 years in this case. There are several rules modifying or tweaking the above rules depending on your criminal history, but 90% of the cases we see fall under these rules.
If you are suspended for failing or refusing a breath test, then you can challenge the DMV suspension if you request a hearing within 10 days of your arrest. There is no consequence for fighting your suspension at the DMV and losing. Doing so does not disqualify you from any programs available in the criminal courts, as it is a seperate system. In many cases, however, I find this hearing to be a waste of your resources. The bar is very low for the state to prove your refusal or failure, and I only recommend challenging this suspension if there is a legitimate legal or factual issue.
Henry LeSueur has been successful getting both 90 day and 1 year license suspensions dismissed. The reason for the initial stop can invalidate a suspension in some circumstances because an officer must have probable cause that you violated a traffic law. In one case, a suspension was thrown out because the officer’s reason for the stop was failure to signal. Henry won that case by proving that, in fact, Oregon law did not require the use of a turn signal in that instance. Henry has also invalidated suspensions due to the officer’s inadvertent mistake on the implied consent combined report. In other instances, the police officer’s failure to appear at the DMV hearing may be sufficient to invalidate the suspension. Because the consequences of a license suspension are serious and often jeopardize one’s employment it is a very important aspect of any DUI case.
8. Taking a DUI to Trial -[top]
How do I fight my DUI?
Taking your DUI to trial is an exhilirating and stressful experience. We are very lucky to live in a society where we may have a jury of our peers judge us for our actions. A jury on a DUI case can act as an excellent check against the sometimes overzealous prosecution of DUI charges in Multnomah, Clackamas, and Washington Counties.
Of course, not every case is right for going to trial. The decision to go to trial is a very difficult one to make when you have an offer of Oregon DUII Diversion on the table. At this law firm we are not afraid to reject diversion and to bring cases to trial, but I assure you that it is rare. In fact, we have only counseled someone to reject diversion once. We won that trial, but that's no guarantee that we would win yours.
The more common scenario where you might want to go to trial is when you have a second or third DUI charge. In that case, the prosecution tends to give you a plea offer that would have you go to jail for several weeks at the least. Oftentimes there is little to lose by taking such a case to trial. Even so, the cost of going to trial can be quite high depending on your case. We will try a DUI case for $2500 in addition to our pre-trial retainer.
What makes DUI trial winnable? Why might you want to go to trial even with a perfectly good diversion offer on the table? Any good starting point for trial analysis is with the breath test results. The legal limit in Oregon is .08 BAC. In our experience, juries tend to place a great deal of weight on whether a person was over or under that limit. Another major factor in our analysis is the police report detailing your stop and arrest. Reading these reports is an art as much as a science. We look for inconsistencies in the report, we look for things that you did right, we look for things that the police overlooked. These reports give us good insight into how an officer will present his case on the stand and we use these reports to prepare a cross-examination that will highlight all of the points that will raise reasonable doubt.
At the end of the day, "reasonable doubt" is the DUI defendant's best friend. The state must prove its charges beyond a reasonable doubt, to the point where no juror has a doubt in their mind that they would call reasonable as to your guilt. This is a very high burden for the state to carry. If we can show the jury a reason to doubt the state's evidence and if the jury finds that reasonable, then they will acquit you. But, then again, the jury can do whatever it wants. This is the risk of going to trial. Rest assured that you need an Oregon DUI Attorney on your side.
9. DUI Intensive Supervision Program (DISP) -[top]
DISP is a special diversion-like program that is offered in Multnomah County for repeat DUI offenders. Clackamas county offers a similar program called "DUI Court," but DISP is better because you typically only spend one night in jail for DISP. DISP is not a program for a first or even a second-time DUI offender. DISP is instead a program for people who are working on their third, fourth, even fifth DUI. It is for people who have felony DUI charges due to there being so many DUIs. In other words, it's for people who have a serious alcohol problem.
DISP is no joke when it comes to reforming a person's drinking habits. To enter DISP you must sign away your right to drink alcohol for three whole years. In addition to this, you can't even have alcohol in your house. You can't own a car. You have to report to your probation officer quite frequently, and you cannot hang out at places like bars anymore. You also would have to engage in a course of treatment to see that your sobriety is maintained.
The upside for all of this is that a person who enters DISP typically gets to avoid going to jail on charges that would have them inside for a year or more. Make no mistake: DISP is a huge committment. People mess up in DISP and they are thrown in jail. It's the last chance, a get out of jail not-so-free card. We can help you be successful in DISP. Give us a call if you think this program is for you.
10. Reckless Driving and Criminal Mischief -[top]
When charged with an Oregon DUI, it is not at all uncommon to also be charged with Reckless Driving or with Criminal Mischief. With a good Oregon DUI Lawyer, these charges can usually be made to disappear.
Reckless Driving is driving in a manner that recklessly endagers people or property. The view of some prosecutors is that anyone who is driving over a certain BAC is per se driving recklessly. It may be the case that the police officer who gave you your DUI ticket did not give you a reckless driving ticket. Even so, the prosecutor is the one who makes the charging decision and you might get it tacked on to your DUI.
Criminal Mischief is the charge that is given out when you crash your car while driving under the influence. It means that you recklessly (or intentionally) damaged the property of another. The degree of Criminal Mischief (1, 2, or 3) depends on how valuable the property was. Most people who crash during a DUI get a Criminal Mischief 2 charge tacked on. This means that you broke stuff worth at least $100.
A good DUI lawyer can help you avoid penalties on these charges if it is your first time in trouble. The way it works is like this: you plea guilty on the DUI and enter diversion. The reckless driving or criminal mischief charges are split off and put on the trial docket. You come back a few weeks later and negotiate to have these charges dropped if you successfully complete diversion. In Multnomah County this is par for the course. In the other counties, maybe so, maybe not.
If you are not eligible for diversion then these charges are open to negotiation for dismissal with the DA. The simplest case is that the DA will agree to drop one charge for every charge that you plea to. So if you are on your second DUI and are not diversion eligible, they will drop the reckless driving if you plea to the DUI.
Another way to resolve a criminal mischief charge is with a "civil compromise." In essence, a civil compromise is where you pay off the person whose stuff you broke. In exchange, the court will dismiss the charges. All of this is easier said than done, but we know how to do it here and we'll do it for a fair price. Give us a call if you want an experienced Oregon DUI attorney on your side.
11. Ignition Interlock Device -[top]
What is it? Will I have to install one in my car? How much does that cost?
Beginning in 2012, the Oregon legislature added an ignition interlock device requirement to the diversion program, such that, while you are in the program and car your drive must be equipped with the ignition interlock device. You must blow into this device each time you start your vehicle and within about 5 minutes of being prompted for a blow while driving. This is one enforcement mechanism the state has to make sure diversion participants are abstaining from alcohol during the program. You pay the cost to install, rent and maintain this device, which comes out to approximately $70 per month.
12. Jail Sentences for First Time DUII Convictions by Oregon County -[top]
Henry LeSueur has represented DUI defendants all across the state of Oregon and has found that the convictions for first time offenders can vary greatly based on the court’s location.
Below is a summary of sentencing estimates based on Henry's experience.
Below is a summary of sentencing estimates based on Henry's experience.
Multnomah County Circuit Court: 2 days or 80 hours community service; TSI possible
Clackamas County Circuit Court: 2-5 days jail; no alternative sanctions likely
Washington County Circuit Court: 2-5 days jail
Springfield Municipal Court: 40 hours community service
Pendleton Municipal Court: 30 days jail, of which 4 must be served in jail and 26 may be served with electronic home detention at a cost of $15 per day.
13. Other Crimes -[top]
This page focuses a lot on DUI, but we represent individuals charged with all crimes including felonies and misdemeanors. While DUI charges can be fairly formulaic, other criminal charges are infinite in their possibilities. Every case is unique. We can help you find out where your case stands after we sit down with you and get a chance to read your police reports. Give us a call to set up an appointment. 503.974.6133.
Henry LeSueur es un abogado de defensa criminal y derecho de familia.