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2009 Legislature brings Oregon into Compliance with Federal Commercial Drivers License Rules – Persons Holding Commercial Drivers Licenses Disqualified from DUII Diversion

The 2009 legislature made changes in Oregon Law in order to bring the State into compliance with the rules of the Federal Motor Carrier Safety Administration. Since 2002, federal rules have prohibited any state from offering any type of “diversion” or similar program to a commercial license holder, even for citations received while the person was using a private vehicle. The restrictions includes all traffic offenses, even speeding tickets.

House Bill 129 amends ORS 801.307 and defines what it means to “hold a commercial driver’s license” in Oregon. Under the new law “hold” means that a person has a commercial drivers license that is not expired, or expired for less than one year. A person “holds” a CDL, even if it is suspended, as long as it is not revoked.

This change highlights one of the common traps for the unwary in DUII cases. We have seen many clients who have a CDL but have not driven commercially for years. Often they simply renew the CDL with the thought that they may use the privilege again one day. However, if such a person receives a DUII, they are barred from the DUII Diversion Program because of the dormant CDL.

Initially, there was substantial litigation about what was, and was not, a “valid” CDL, litigated in the context of what it meant to “hold” a commercial drivers license. Most of these dormant CDL licensees hadn’t filed the required medical certifications for years and could not have driven commercially at the time of their DUIIs. This issue has been mostly settled for DUII Diversion eligibility for the last two years.

This legislative change sets to rest all of the arguments for a dormant CDL holder who is cited for DUII. Unless your license has been expired for over a year, or has been revoked, you are a CDL driver, even if you haven’t been in a commercial vehicle for decades.

No one plans on getting a DUII. But, persons with a dormant CDL might want to think twice about renewing their CDL. That CDL you are not using will keep you out of alternative programs like DUII Diversion, as well as alternatives to speeding and seatbelt tickets.

This is a good example of a rule that is well intended but overly broad. Obviously, it is a good idea for employers and the public to know the true driving record of a person who regularly operates large commercial vehicles or handles dangerous cargo. But, when the law effects a person who is not an active commercial driver it crosses over into unfairness for an inactive commercial driver who is a first time offender.

This post relates to persons who hold a CDL from any state and received an Oregon DUI.

Increased Penalties for Assault in the Third Degree When Committed While DUII Effective July 1, 2009

During the 2009 session the Oregon Legislature made a number of changes in the laws which affect persons charged with or convicted of the crime of DUII in Oregon.  One of these law changes went into effect on July 1, 2009.

ASSAULT IN THE THIRD DEGREE ORS 163.165

Effective July 1, 2009, House Bill 3508 (in relevant part) amends ORS 163.165 to make Assault In The Third Degree committed by a person who is DUII a Class B Felony instead of a Class C Felony.

The maximum penalties for a Class B Felony are significantly greater than those for a Class C Felony.

Class C Felony:   Prison for up to 5 years and a fine of up to $125,000.

Class B Felony:   Prison for up to 10 years and a fine of up to $250,000.

House Bill 3508 also elevates the crime seriousness level for Assault III committed while DUII from a 6 to an 8 on the Oregon Felony Sentencing guidelines Grid.

Under the former law, if a person was convicted of DUII and Assault in the Third Degree arising from the same incident which occurred on or before June 30, 2009, the presumed sentence for the Assault III would have been presumptive probation.

Under the new law which applies to incidents which occur on or after July 1, 2009, the presumed sentence range would be at least 16 – 18 months prison with 3 years of post prison supervision.

COMMENTS

This law change does increase the danger of prison incarceration for all defendants charged with committing this crime while DUII in Oregon and seriously increases the prison exposure for persons with criminal records.

We do not expect this to affect most of our clients who want to avoid prison sentences and who are willing to follow our advice about how to accomplish that goal.

Under the former law, for acts committed on or before June 30, 2009 a person charged with Assault In The Third Degree while DUII could get the charge dismissed pursuant to Civil Compromise, or if convicted could get the conviction expunged from his or her record after the expiration of the appropriate waiting period.  For acts committed after June 30, 2009, Civil Compromise and Expungement will not available for persons who were DUII when they committed Assault in the Third Degree as it will be a Class B Felony.

There is no apparent reason for this law change except the misguided notion that increasing punishments somehow deters persons from driving while under the influence of intoxicants.  The truth is that most people do not know about these laws until AFTER they get arrested, prosecuted and talk to a lawyer.

This new law punishes persons who commit Assault in the Third Degree while DUII more severely than those who commit the same crime, but not while DUII, even though they may be under the influence of intoxicants.  For example, a person who recklessly injures another person, for instance,  in a bar fight while under the influence of intoxicants is charged with a lower class of crime (Class C Felony), has a lower presumptive sentence and can get the charges dismissed though civil compromise and later can get the arrest or even a conviction removed from his or her criminal record.