You are faced with a DUI. Now what?

This page summarizes the following:

What is a DUI? What are legal limits for blood alcohol content?
How many drinks does it take to get a DUI?
How is blood alcohol tested? Are the tests reliable? Can they be contested?
Is Oregon law different than in other states?
What will happen to me now? What is the worst case? What is the best case?
What should I do now? What is my best next step?
What about my driver’s license?
Will I have a criminal record?
What if this is my first DUI?
What if this is not my first DUI?
Do I have any hope of winning in court?
I have heard about Diversion as a way avoid conviction. Is this true?

For more information also see the Frequently Asked Questions page.

What is a DUI?

Driving under the influence of alcohol is the act of operating a motor vehicle (and sometimes a bicycle or similar human-powered vehicle) after having consumed alcohol (ethanol) or other drugs, to the degree that mental or motor skills are impaired.

The offense may be called, depending on the jurisdiction, driving while intoxicated (DWI), driving while impaired (also DWI), operating while intoxicated (OWI), operating a motor vehicle while intoxicated (OMVI), driving under the influence of alcohol or other drugs (DUI), driving under the combined influence of alcohol and/or other drugs, driving under the influence per se or drunk in charge of a vehicle. These laws also apply to boating, bicycles, aircraft—all vehicles.

Historically, guilt was established by the observation of driving symptoms, such as weaving; administering a field sobriety test, such as a walking a straight line heel-to-toe or standing on one leg for 30 seconds; and the subjective opinion of an arresting officer that the driver was under probable impairment.

Today's statutes commonly provide for two separate ”theories.“ The first is the traditional ”drunk driving“ offense, consisting of driving under the influence of alcohol and/or drugs.

What are legal limits for blood alcohol level?

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. Some states have no set limit for legal intoxication. However, 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.

Normal: No alcohol is found in the blood.

Abnormal: 0.08–0.10 mmol/L blood alcohol concentration (BAC) or greater means legal intoxication in most states.Many states define intoxication as a blood alcohol concentration (BAC) lower than 0.08 mmol/L for people under age 18.

How many drinks does it take to get a DUI ?

Not many! One large margarita might push some past the legal threshold. Obviously it varies because of a number of factors.

To simplify discussion let us describe one ”drink“ as a shot of distilled spirits, a glass of wine, or 12 ounces of beer. In technical terms the NHTSA regards these each to contain a volume of .54 ounces of alcohol.

So what is the result for three sample individuals?

Mary, a 140-pound woman has consumed three drinks within one hour and is about to take to the road illegally. Her blood-alcohol content is now riding slightly above the legal limit at 0.086.

Jose, a 190-pound man who knocked down four drinks within one hour would also be risking arrest. His blood-alcohol content as he moves behind the wheel sits at 0.084.

Jonathan, a 250-pound man who drank slowly (over 2 hours) might not exceed the legal limit until his 6th drink.

Factors that affect how quickly the blood alcohol level rises in the body include:

The number of drinks per hour. Your blood alcohol level steadily increases as you increase the number of drinks per hour.
The strength of alcohol (proof or percentage) in the drink.
Your weight. The more you weigh, the more water is present in your body, which dilutes the alcohol and lowers the blood alcohol level.
Your sex. Women's bodies usually have less water and more fat than men's bodies. Alcohol does not go into fat cells as well as other cells, so women tend to retain more alcohol in their blood than men do. Also, a woman's hormones may impact levels.
Your age. One drink raises the blood alcohol level of an older adult 20% more than it does for a young adult.
The presence of food in your stomach. Food in the stomach can help absorb alcohol. The blood alcohol level will be higher if you do not eat before or during drinking.
The kind of mixer used. Carbonated mixers (e.g. tonic water or club soda) can aid the body's absorption of alcohol.
Other medications or drugs. Medications, such as antihistamines or sedatives (tranquilizers), may increase the effects of alcohol. Also, a person who uses other drugs, such as marijuana, will feel the effects of both drugs more than if the drugs were used separately.

Are the tests reliable? Can they be contested?
The time that passes between drinking alcohol and collecting the blood (or breath) sample affects test results. The body continues to break down alcohol at a steady rate after drinking. Therefore, the amount of alcohol you drink can be estimated by knowing how much alcohol is present in your blood (or breath) and how much time has passed since you had a drink.

In general, your body is able to break down about one drink per hour.

The blood alcohol test measures only the amount of alcohol in the blood at the time the sample is taken. It does not indicate how long you have been drinking or whether you have an alcohol use problem. Highway patrol officers in most states now have devices—toximeters—that measure breath alcohol levels of drivers they suspect of being intoxicated. A person charged with drunken driving who believes the breath analysis is not accurate may ask for a blood alcohol test--but you must first submit a breath test or face a long suspension for refusal.

Factors that can interfere with your test and the accuracy of the results include:

The use of rubbing alcohol to clean the skin before inserting a needle to draw blood. Elevated blood ketones, as in diabetic ketoacidosis. Cough medicines or herbal supplements that contain alcohol, such as kava or ginseng.
Drinking other alcohols, such as isopropyl alcohol or methanol.

Your legal counsel can discuss the particulars of your case and help you build your best legal defense.

How does Oregon State Law compare to other states?

Oregon‘s legal limits for blood alcohol levels are consistent with national standards. You will fail the breath test if it shows your blood alcohol level is .08 percent or higher (if you are 21 years of age or older), or a blood alcohol content of any amount (if you are under 21 years of age).

Oregon DUII penalties are some of the strictest in the country

Failing the test results in a suspension of driving privileges for 90 days.

Refusal to take the test results in a suspension of one year.

Penalties are more severe for repeat offense. See below.

In some states there is a more strict punishment for those convicted of DUI with a particularly high blood-alcohol content at the moment of arrest; this is usually .15 to .20 percent above the legal limit. Enhanced penalty laws are not utilized in Oregon.

What will happen to me now? What is the worst case? What is the best case?

DUI convictions can cost you thousands of dollars and involve jail time, probation, increased insurance premiums. Your cherished driving privileges can be taken away for years. The hassle of hearings and classes and fees and dealing with the DMV—it can quickly become a nightmare.

It is critical for you to secure legal protection.

You may walk away from this incident wiser but virtually unscathed because of the insight and skill of a good lawyer. Or you might find that the court's penalties are less severe because of strong advocacy. Finally Mr. Cunningham in some ways is guidance counselor, helping you walk you through each step.

What should I do now? What is my best next step?

Do not assume all is lost. The details that win cases are not always known until after investigation. You may not necessarily know what to look for. A good DUI lawyer will. Just because a breath test result is a .13, or a blood test result is a .16, don't assume that your case is not worth fighting.

Simply put, your next step is to find the best lawyer with extensive DUI experience.

What about my driver’s license?

As you now know a DUI can very much impact your license to drive. However, special statutes exist to protect you and your livelihood.

The duration of suspension is subject to appeal.

If you have not already received a temporary permit you may still be eligible. The terms of that permit can be relaxed to permit you to take care of your responsibilities.

Will I have a criminal record?

If found guilty you cannot keep your record clean! DUI's cannot be expunged.

Some felonies can be expunged or reduced to misdemeanors. Most misdemeanors can be expunged. Sometimes charges can be dismissed. Certification of rehabilitation and pardon can be obtained. Don't lose hope!

Be certain to express your concerns about this with Mr. Cunningham and he can explain your best options.

What if this is my first DUII?

If found guilty on a first offense DUII, you could be fined $6,250.00. The minimum is $1,000. Your driver's license will be suspended for one year, and you will be required to submit to an alcohol evaluation at your own expense and to complete any treatment program recommended by the evaluator, and you could receive one year in the county jail.

The court may also order any of the following:

A period of probation
48 (or more) hours in jail or a minimum of 80 hours of community service
Unitary Assessment of $90.00
Statutory assessments of $225.00
Reimbursement for court-appointed attorney fees
That you obey all laws during the probation period
That you not drink alcohol or use or possess drugs
That you attend a Victims Impact Panel
Oregon DUII cases may not be plea-bargained to lesser charges. While such plea deals exist in some states, in Oregon this practice is prohibited by state law, specifically ORS 813.170 (*PDF File). This is yet one more reason why it is so important to consult with a top Oregon DUI defense attorney as soon as possible after a DUII arrest.

The court may allow you to spread out your fees in multiple payments.

What if this is not my first DUII?

You may face more severe penalty if any of the following is true:

You have been convicted of DUII in the last five years.
You previously received suspension for refusal to take a breath test.
You previously participated in a diversion or drug rehabilitation program.

A second DUI conviction will cause a minimum fine of $1500 and a third DUI conviction will cause a minimum fine of $2000. The court may impose a maximum fine of $6250 for a midemeanor DUI. Some jails require a per diem for each day for incarceration. You can estimate that will cost $100 per day.

The court will impose miscellaneous fees and assessments totalling approximately $500, the alcohol evaluation is approximately $100-$150, the victim impact panel ranges from $20-$50, and the cost for alcohol treament is dependant on the quality of care you chose to recieve.

DUI penalties escalate with each occurrence. You are at particular risk and the importance of superior legal counsel cannot be understated. Call immediately.

Do I have any hope of winning in court?

Yes you have hope of winning in court. Your case might be dismissed. You may win your case outright. You also have options that legal counsel can outline for you to lessen the impact to your lifestyle, your pocket book and your record.

A skilled DUI lawyer will generally win better than half of their DMV Hearings. If a loss at the DMV is unavoidable, a lawyer can help with the timing of any suspension so it is least disruptive to your life, or help you get a restricted license to drive for work.

There are four aspects to the case that a prosecutor will use: driving pattern, physical appearance, Field Sobriety Test performance, and chemical test results. The case is like a table comprised of four legs; if one of those legs is broken, the table collapses. Likewise, if there is reasonable doubt regarding any aspect of the case, an accused should be acquitted.

I have heard about Diversion as a way avoid conviction. Is this true?

DUI Diversion is a program that allows eligible persons to avoid a DUI conviction and the accompanying court penalties if they are able to complete the program requirements. If successfully completed, diversion should result in the dismissal of the DUI charge at the end of one year.

The eligibility requirements for DUII Diversion are set out in ORS 813.215 (*PDF File). A person arrested for a first-offense Oregon DUII may be eligible UNLESS:

You fail to appear at your arraignment without good cause.
You had another driving under the influence of intoxicants charge pending against you at the time you were arrested for driving under the influence; or
You are participating in, or in the last ten years have participated in, a diversion or alcohol rehabilitation program; or
Within the last ten years you have been convicted of any degree of manslaughter, murder, criminally negligent homicide, assault involving the use of a motor vehicle or driving under the influence of intoxicants; or
The present DUII offense involved an accident resulting in a death or physical injury to another person.

Keep in mind that DUII Diversion has NO EFFECT on any DMV license suspension that may have been imposed for a breath / blood test failure or refusal. A challenge to this suspension requres a separate proceeding. Also, note that DUII Diversion only applies to DUII charges. It is not available to other charges brought, even in the same case. Keep in mind that punishment for the underlying DUII charges is automatic if a person starts DUII Diversion and fails to complete it properly.

Diversion will probably help you with your insurance rates, though you might still expect your rates to increase 20%. In some cases if have a long history with your insurance company it is possible the rates won't increase at all. Even if your Oregon DUII charge results in the successful completion of Oregon DUI Diversion, a diversion will appear on your driving record, and your insurance company might treat you as if you have been convicted of drunk driving.

Don't dismay. Replace your stress with ACTION!

You can act or you can continue to get more depressed. Mr. Cunningham will answer your questions and provide a game plan to get you back on track. Having a plan and knowing your next steps will reduce stress and put you back in control of your life.

E-mail: james.cunningham@oregonduiattorney.com