Friday, December 9, 2011
TIS’ THE SEASON OF DRINKING AND DRIVING
It’s that time of year again: the holiday season. The season of a. awkward company Christmas parties; b. aggravating family gatherings; c. serious financial stress
With all of it comes an increase in DUII arrests.
While everyone has fundamental constitutional right to fight a criminal case and require the state to prove them guilty beyond a reasonable doubt, when it comes to DUII, diversion is often the most sensible resolution.
Bottom line: if you are eligible for diversion and you enter and complete the program, your case is dismissed. The consequences you avoid by successfullycompleting diversion include:
· Not having your driver’s license suspended for an additional year (on top of the initial DMV suspension that comes with a failed breathalyzer or refusal to blow)
· Not having to purchase SR 22 insurance or pay for an interlock device installed in your car
· Not having a DUII conviction on your record
· And so on, and so on
We are often asked, “If I’m eligible for diversion should I even bother paying for an attorney? Can’t I just do it myself?”
My answer is always the same: anyone facing a criminal conviction and the consequences that come with such a conviction should retain an experienced lawyer to:
· Review and evaluate the State’s case
· Advise on all possible options (including diversion when applicable)
· When applicable, put on a hearing for the Court arguing to allow diversion entry on those occasions when the State objects;
· Assist the client through the process
· Advocate on behalf of the client and/or
· Force the state to prove the client guilty beyond a reasonable doubt when trial makes the most sense
In short, yes. Even those who are diversion eligible and want diversion should still retain an attorney. If my brother/mother/friend was arrested for DUII, my advice would be that they retain counsel regardless of whether or not they are diversion eligible.
And here’s the thing: even if you’ve never been arrested/convicted/accused of DUII in the past, there is no guarantee you will get into diversion.
Example: in Oregon, if you possess a Commercial Driver’s License at THE TIME of the incident, you are disqualified from diversion. It makes no difference whether:
· You were driving a commercial vehicle at the time
· You had stopped driving commercially ten years ago and didn’t even need the CDL
I realize it’s counterintuitive to think “hey, I don’t use my CDL anymore and if I get a DUII in the future I won’t be able to do diversion if I still have it, so I’m going to go to the DMV to get a regular driver’s license.”
But that’s exactly what you should do: if you no longer use your CDL, go to DMV and get yourself a regular driver’s license.
Here are the basic criteria regarding Diversion entry in Oregon.
(1) You have no charge of an offense of DUII or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending on the date you file the petition for a DUII diversion agreement;
(2) You have not been convicted of an offense described in paragraph (1) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;
(3) You are not participating in a DUII diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;
(4) You did not participate in a diversion or rehabilitation program described in paragraph (3), other than a program entered into as a result of the charge for the present offense, within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;
(5) You have no charge of an offense of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;
(6) You have not been convicted of an offense described in paragraph (5) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;
(7) You did not hold a commercial driver license (CDL) at the time of the offense;
(8) You were not operating a commercial motor vehicle at the time of the offense; and
(9) The present DUII offense did not involve an accident resulting in:
(a) Death of any person; or
(b) Physical injury* to any person other than yourself;
(10) You have not been convicted of a felony DUII in Oregon or elsewhere.
Happy Holidays, stay safe, don’t drink and drive.
But if you do, give us a call….we can help.
*physical injury in Oregon means “substantial pain or impairment of physical condition.” In other words, it’s subjective and arguments CAN be made to the Court proving that physical injury was not caused. So don’t just give up on diversion if a victim alleges injury. Discuss it with your attorney.