Frequently Asked Questions About Oregon Criminal Defense Laws
There have been a lot changes to Oregon criminal laws recently and you have a lot of questions.
We answer them here.
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Is a DUI considered a felony in Oregon?
Not necessarily. First-time DUIs are misdemeanors in Oregon. A DUI becomes a felony if the new offense occurs within 10 years of at least two prior DUI convictions.
This was a change to the law, established by Ballot Measure 73 in 2010. Previously a DUI became a felony only if it the current incident occurred within 10 years of three prior DUI convictions. Additionally, any subsequent DUI (beyond #3) is a felony. It is also important to remember that the law now requires 90 days of jail. This 90 days may not be reduced for any reason (including good time/work time). If a person is convicted of Felony DUI under 813.010(5) for having three DUI convictions within the last 10 years, the person will be considered a Level 6 under the Sentencing Guidelines established by the Oregon Criminal Justice Commission.
Can I drink or take medications while in diversion?
It used to be that you could consume intoxicants while in diversion as long as you did not use such intoxicants in conjunction with the operation of a motor vehicle. However, the Oregon legislature changed the statute on diversion in June 2011. As of June 23, 2011, anyone entering into the diversion program must agree, upon filing a petition with the court to enter into diversion, not to use intoxicants during the diversion period.
The legislature did, however, make exceptions for the following:
- Consumption of sacramental wine as part of a religious rite or service
- Valid prescription for a substance qualifying as an intoxicant when using such substance as prescribed
- Using a nonprescription drug in accordance with the directions for use that are printed on the label for that nonprescription drug
How much time am I facing following my arrest in Oregon?
In criminal cases people often ask, “How much time am I facing in jail?” or “What kind of fine will I have to pay?” These are both very reasonable questions.
CRIMINAL CHARGE CLASS MAXIMUM JAIL/PRISON MAXIMUM FINE CLASS A FELONY 20 years of prison $375,000 CLASS B FELONY 10 years of prison $250,000 CLASS C FELONY 5 years of prison $125,000 CLASS A MISDEMEANOR 1 year of jail $6,250 CLASS B MISDEMEANOR 6 months of jail $2,500 CLASS C MISDEMEANOR 30 days of jail $1,250
Some crimes, such as murder and aggravated murder carry prison sentences that can exceed the maximums listed above and fines that may exceed the maximums above. Additionally, depending on a person’s criminal history, some convictions, such as crimes involving repeat property offenders or repeat sex offenders, may exceed the maximums listed above.
What is Oregon's Jessica's Law?
Named after a child victim in Florida, Jessica’s Law is the term given to a law requiring mandatory minimum sentences for certain sex crimes. On April 24, 2006, Oregon’s governor signed Oregon’s version of Florida’s Jessica’s Law.
The law still is known informally as Jessica’s Law in Oregon. Under Oregon’s Jessica’s Law, a defendant convicted of committing a First Degree sex-related offense (such as rape, sodomy, kidnapping, and unlawful sexual penetration) against a child who was under the age of 12 at the time of the offense must serve a minimum of 25 years in prison.
These mandatory minimum sentences for Jessica’s Law amended the Measure 11 Mandatory Minimum sentencing under ORS 137.700.
Will a diversion program expunge a DUII from my record?
Unfortunately, under Oregon law, driving offenses (including traffic offense convictions, such as speeding tickets) are not expungable. It is important to note that this includes cases that are dismissed pursuant to diversion. Thus, when you successfully complete diversion, the case will be dismissed, but the arrest will never be expungable. This means no conviction will be entered, however, the arrest and charge always will remain on your record. Your record will show, instead, that the drinking and driving charge was dismissed, or diverted.
What is the legal limit for blood alcohol level while driving?
Blood alcohol content, or BAC, is most conveniently measured as a simple percent of alcohol in the blood by weight. It does not depend on any units of measurement. Since 2002 a blood alcohol test measures the amount of alcohol (ethanol) in your body. The National Highway Traffic Safety Administration (NHTSA) recommends that all states set the legal definition of intoxication as the point when the blood alcohol concentration (BAC) exceeds 0.08 millimoles per liter (mmol/L) or 80 milligrams per deciliter.
Oregon recognizes the NHTSA amount and has classified 0.08 BAC as the legal limit.
What's the difference between DUI, DUII, and DWI?
The offense of driving under the influence of intoxicants (DUII) can be referred to by several names. Some states define the crime differently. Some states refer to the crime as DUI, for Driving Under the Influence. Some states use the name DUII, for Driving Under the Influence of Intoxicants. And some states call the offense DWI, for Driving While Intoxicated.
In practicality, these all are referring to the same crime. Technically, in Oregon, the crime is Driving Under the Influence of Intoxicants, shortened as DUII.
Can I have my urine sample independently tested after a DUII arrest in Oregon?
As has been previously discussed, Oregon has an implied consent law which states that when you operate a vehicle in the state of Oregon, you implicitly consent to a blood, breath, or urine test if asked to provide one by an officer. Blood and urine samples must be maintained by the police department because, by Oregon law, defendants are allowed to seek independent testing of these samples. So, if you’re willing to pay for independent testing, you may seek your own analysis.
Do I have to get an ignition interlock device if I do diversion?
Yes. Oregon law was changed in 2011 by House Bill 3075, thus requiring defendants entering into the diversion program to get ignition interlock devices installed in their cars.
The effective date of this requirement was January 1, 2012, so if you opt for a diversion program, one of the requirements will be the installation of an ignition interlock device on your car. Fees associated with diversion due to drinking and driving were also increased in 2012.