DUII Defense and Diversion
An Oregon DUII charge can have a devastating impact on a driver’s life. That’s why hiring an attorney who understands Oregon’s complex DUII laws is crucial in helping you keep your license, reduce or avoid incarceration/prison or possibly avoid a conviction altogether.
Sandi Pellikaan has successfully handled hundreds of Oregon DUII cases over the years. And while she knows the law, she has knowledge of something even more important – her clients. Every case is different. That’s why she starts by listening and then shares your options – clearly and carefully – so you can make the decision that’s right for you.
Although she’s an excellent trial lawyer, Ms. Pellikaan believes that not every case is a trial case. When contemplating a trial, there are factors other than legal issues. She’ll review these with you so you’ll know what to expect – and won’t choose to go to trial without fully understanding the process. She becomes your partner in dealing with this potentially serious and stressful charge, giving you the knowledge you need to make empowered decisions.
Ms. Pellikaan also represents persons in challenging DMV license suspensions for failing or refusing the breathylizer, in entering DUI Diversion and, of course, in circuit or municipal court on the DUI charge itself.
IMPORTANT DUII INFORMATION
NOTICE OF LICENSE SUSPENSION
If you failed or refused the breath test, you received a Notice of Suspension. At the bottom of the Notice of Suspension is your temporary permit; keep this with you, as it allows you to drive for the 30 days between your arrest and when the suspension goes into effect.
On the back of the Notice, at the very bottom, is information on requesting a hearing regarding the suspension. YOU HAVE 10 DAYS FROM THE DATE OF ARREST FOR THE HEARINGS OFFICE TO RECEIVE YOUR REQUEST FOR A HEARING. You should fax the request, so that you have confirmation the office received your request. If you hire Ms. Pellikaan to assist you with your DUII charge, she will fax the hearings request on your behalf at no additional charge.
An attorney is not required for the hearing, and many people choose to represent themselves at the hearing, but you should discuss this with your attorney to determine any legal issues you might have. Remember, the hearings are tape recorded and conducted under oath, so anything you say at the DMV hearing could be used against you if you take your DUII case to trial.
Even if you plan to plead guilty to the DUI charge, you should still request a hearing. Nothing worse will happen if you have the hearing, and if the officer does not show up for the hearing or doesn’t turn in his paperwork on time, you may get your license back.
If, after the hearing, the judge upholds the suspension, you may apply for a hardship permit. However, the hardship permit does not cover the entire suspension period. For example, on a 90 day suspension for failing the breath test, the hardship is only valid for 60 days. You may obtain a hardship through DMV; it requires an SR-22 from your insurance company. This type of hardship permit does not require a judge’s signature.
CITATION/RELEASE AGREEMENT/ORDER TO APPEAR
After your arrest, you either received an Order to Appear in court or a Citation. Your citation or summons is the smaller piece of paper. It shows your court date near the bottom. This court date is your arraignment, where you are formally charged with the crime of DUII and possibly other crimes as well.
Some courts, including Clackamas and Multnomah counties, allow your attorney (if you have hired one) to appear on your behalf and set your case for a diversion hearing if eligible, or a pretrial conference if your case is not eligible for diversion. As a courtesy to her clients, Ms. Pellikaan prepares the Waiver of Appearance at no additional charge.
Most courts will not allow you to plead guilty at the arraignment. This is because arraignment courts typically don’t have the time or staffing to take guilty pleas. Because pleading guilty to the crime of DUII comes with serious consequences, judges want to make sure you have time to consult with an attorney and thoroughly understand all of your rights and options.
Generally, you are eligible for diversion if the following are true: you have not had a DUII conviction or participated in a diversion program ,or other court ordered substance abuse program,anywhere within the last 15 years, you were not in an accident causing injury to anyone, you have not been convicted of assault or manslaughter involving operation of a motor vehicle in the past 15 years, and you do not have a current CDL.
Before you enter diversion, Ms. Pellikaan will thoroughly discuss with you the Affidavit of Eligibility that you must sign and present to the judge at the time you enter diversion.
First, to enter diversion you must plead guilty or no contest to the DUII charge. This means that you are forever giving up your right to have a trial in the case. The judge will then hold entry of judgment for 1 year. Assuming you complete the following requirements, the DUI will be dismissed. However, the arrest will remain on your record; under current law, the arrest is not eligible for expungement.
The diversion requirements are as follows: pay $490 in court fees; complete alcohol evaluation through the county (cost is $150); complete alcohol classes or treatment; attend one-time victim panel class (cost is typically around $50); install ignition interlock device during the term of diversion when you have valid driving privileges; no drinking alcohol for one full year, and notify the court and the DUII evaluator’s office if your address changes during the one year diversion period. In most courts, your attorney must file a Motion to Dismiss the charge once the year is over. This is included in Ms. Pellikaan’s fee.
DUII-NOT DIVERSION ELIGIBLE
If your case is not eligible for diversion, it will be set for a pretrial conference. Ms. Pellikaan will then either negotiate a sentence that you are comfortable with, or she will send your case out for trial (trial will be held on a different day from the pretrial conference). Because the charge is a class A misdemeanor (unless you have 3 prior DUIIs, in which case your DUII is a felony), you may have a trial with a six person jury. The prosecutor has the burden of proving your guilt beyond a reasonable doubt to all 6 jurors (the decision to convict or acquit must be unanimous).
A typical sentence for a DUII includes probation, jail, alcohol evaluation and treatment, victim panel attendance, a fine (minimum fine for a first DUII conviction is $1,000), and possibly community service. Your sentence depends on the particular facts of your case and whether you have prior convictions. Ms. Pellikaan will discuss various sentencing options with you at length and will work to secure an outcome that you are comfortable with.
In Multnomah County you may be eligible for an “expedited DUII plea.” This option allows you to avoid jail time and may result in lower court fines.
The prosecutor may have also charged you with Reckless Driving, Recklessly Endangering Another, Criminal Mischief or other associated crimes. These crimes are not eligible for the diversion program and will have to be resolved separately from the DUII, either by a plea, a civil compromise, or trial. Ms. Pellikaan has considerable experience resolving these companion charges and will discuss the possible options with you.