PORTLAND OREGON DUI ATTORNEY

Mr. O’Rourke and his staff work as a team for you

In every DUII / DUI and Felony DUII case there are four areas in which we
can fight the government and win: trial, negotiation, sentencing and appeal.
The smart thing to do is to concentrate our time and resources in the areas
which will be most productive in achieving our goals.
Get more information about how we work for you.

While Attorney O’Rourke’s principal law offices are in Portland,
Gresham and Oregon City, Oregon, he also sees clients with DUII, DUI and Felony DUII charges by appointment in offices in Beaverton, Hillsboro, Lake Oswego
and Tigard, Oregon. Although most of Attorney O’Rourke’s cases as a DUII and
Felony DUII defense lawyer are in Multnomah, Washington and Clackamas
counties, he represents persons charged with DUII and Felony DUII throughout
Oregon and south-western Washington.

Call us for a free telephone consultation at 503-221-1425 or you
can tell us about your DUII case here.

If you are arrested for DUII, DUI or Felony DUII

If you are arrested for DUII or Felony DUII in Oregon, you will be asked
to take a breath, blood or urine test. If you fail or refuse the test, your
Oregon drivers license will be confiscated and you will be given an Implied Consent
Combined Report suspending your license with or without a temporary 30 day
driving permit. You have 10 days to request a hearing to contest your
license suspension. If you do not win the DMV HEARING the license
suspension will remain in effect. You may be able to get a Hardship Permit
after the expiration of a certain waiting period. You will be given a
Citation or Release Order requiring you to appear in Court on a certain day
and time. If you are eligible for Diversion, you must file your application
for Diversion within 30 days of that date. If the DA objects to your
application for Diversion, you have a right to a hearing upon whether or not
you are eligible for Diversion. If you are not eligible for Diversion, your
options are to plead guilty or no contest and you will be found guilty, or
you can plead not guilty and leave the case on for trial. Do not plead
guilty without first consulting with an experienced Oregon DUII and Felony
DUII lawyer.

Misdemeanor DUII   Misdemeanor DUI

In order to convict you for misdemeanor DUII the State must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) were driving (6) a
vehicle (7) upon a highway or premises open to the public (8) while under
the influence of intoxicants.

The State can prove that you were under the influence of intoxicants by showing that you had a blood alcohol content of .08 or more or a positive result for a controlled substance from a UA, or by the observations of the police officer, including his observations of your driving, speech, balance, physical appearance and performance on field sobriety tests, or by showing that even though you were below .08, you were physically or mentally impaired by the use of alcohol because of a physical condition that rendered you more susceptible to the effects of alcohol, or by showing that even though you were below a .08 you admitted consuming or showed signs of being impaired by drugs or a combination of drugs and alcohol.

See the Oregon State DUII Statute here. (2010 Edition)

The maximum penalty for a first conviction for misdemeanor DUII is one year in jail and a fine of up to $6,250 or $10,000 if there was a minor in the vehicle. Convicted
persons are placed on at least 18 months probation and are required to undergo a
substance abuse evaluation and treatment and are required to comply with a
number of other restrictions and  conditions. There is a mandatory 1 year
drivers license suspension.

District Attorneys normally recommend jail upon a first DUII conviction. The law
requires the judge to impose a minimum of 48 hours of jail or 80 hours of
community service. Second and third convictions receive more severe recommendations and consequences. Normally, the Multnomah County District Attorney will recommend 10 – 30 days of jail for a first conviction. 20 to 60 days of jail for a second conviction and 90 to 365 days of jail for a third conviction, 180 to 365 for a fourth or more DUII conviction. The exact recommendations will depend on the
circumstances of each case. Other counties are more or less severe.

A conviction for DUII also requires certain minimum fines: a first conviction carries a mandatory fine of $1,000.00; a second conviction carries a mandatory fine of $1,500.00; and a third or subsequent conviction carries a mandatory fine of $2,000.
In addition, there is a mandatory super fine of $2,000.00 for any person convicted of DUII who has a blood alcohol concentration of .15 or higher.

Felony DUII  – Felony DUI

In order to convict you for felony DUII the State must prove that (1) on a certain
day (2) in a certain county (3) in Oregon (4) you (5) were driving (6) a
vehicle (7) upon premises open to the public (8) while under
the influence of intoxicants and that you (9) have been previously convicted of DUII (10) two or more times (11) in the last 10 years or you (12) have ever been convicted of Felony DUII in your lifetime.

Measure 73, which was passed by Oregon voters on November 2, 2010 and
became effective on December 2, 2010, reduced the number of predicate
DUII convictions within ten years of the current offense from three to
two and requires a minimum 90 day jail sentence upon conviction. In some
cases we are able to avoid the 90 day jail sentence.

The maximum penalty for a third DUII conviction within 10 years is 5 years in
prison and a fine of $125,000. There is a minimum fine of $2,000 and a mandatory
lifetime license revocation. Sometimes these fines can be reduced.

If you have two prior convictions for DUII in Oregon or any other state within
10 years of the date you receive a new DUII citation, it can be charged as a
felony. Upon conviction, you will be subject to the Oregon Felony Sentencing
Guidelines. Depending upon your prior criminal record, the Presumed Sentence
will be between 13 and 30 months in prison. Your actual sentence may be higher
or lower than the Presumed Sentence.

As of January 1, 2010, juvenile convictions for DUII / DUI can not be used as predicate offenses for Felony DUII / DUI charges, if the BAC was under .08 and the only basis of the conviction was that the person was a minor i.e. under the age of 21 at the time of the offense.

Not all prior convictions are eligible to be used to support a felony DUII
conviction. The District Attorney must plead and prove each prior conviction. It
is critical to have a lawyer examine each prior conviction to test it’s
admissibility to support a conviction for felony DUII.

Every person’s case is unique and presents opportunities to
avoid or lessen the consequences of conviction. We consistently obtain good
results for our clients in DUII cases, including those with multiple prior
convictions and presumed prison sentences.

License Suspension

If you fail or refuse a breath, blood or urine test your drivers license will be suspended for between 90 days and 3 years depending on whether you have prior failures or refusals. For a first conviction for DUII your license will be suspended for 1 year. For a second conviction, your license will be suspended between 1 and 3 years. For third or subsequent qualifying conviction your license will be revoked for life.

Temporary License

Upon failure or refusal of a breath, blood or urine test, the police
officer will take your Oregon drivers license and give you an Implied Consent
Combined Report which includes a temporary license to drive for 30 days if
you are otherwise eligible.

Hearing Rights

Within 10 days of the date on which you are given the Implied Consent Combined Report, you must file your Implied Consent Hearing Request with the DMV Hearings Division in Salem, Oregon to get a hearing to contest the suspension. Late filings are possible under certain circumstances. It is not easy, but we win a percentage of these hearings. If you win, the suspension order is revoked and will have no effect.

Hardship Permit

Hardship Permits are available to most persons convicted of DUII after a
waiting period depending upon the number and dates of prior DUII and or
other convictions.

Hardship Permits are available for persons whose drivers licenses have been
suspended under the Implied Consent Laws for failing or refusing breath,
blood or urine tests after waiting periods of between 30 days and 2 years.

We will guide you through every step of the Hardship Permit application process.
A Hardship Permit is a limited license which allows you to drive to certain
locations for certain purposes, including, work.

DUII Diversion

Many people who are charged with DUII are qualified to participate in the DUII
Diversion Program. We provide free consultations to determine whether or not a
person is eligible for the Diversion Program. If the State objects to entry into
diversion, we have a right to a hearing where the DA must prove the person is
disqualified. In some cases, a person may be eligible for Diversion even though
they have a prior DUII conviction. If you are being denied Diversion because of
a prior conviction for DUII you should have an experienced lawyer evaluate the
prior conviction to determine whether or not you are truly disqualified.

DUII Diversion Petition – A Contract

In general, Diversion is a contract between the accused, the Court and the
District Attorney. The defendant promises not to drink and drive, to pay a
diversion fee, to attend and pay for a County Alcohol Assessment, to attend
and pay for a Victim Impact Panel and to successfully complete the level of
treatment recommended by the County evaluator. The defendant must also agree to remain abstinent from alcohol and drive with an ignition interlock device installed in any vehicle they drive during the Diversion period. The defendant is given 12
months to complete these promises, but may be given an additional six months
upon a showing of good cause.

If there is no more drinking and driving and all of the diversion requirements
are fulfilled, the case will be dismissed at the end of the time allowed by the
Court for the completion of the Diversion Program.

Between 10 and 30 per cent of the persons who start Diversion do not complete
the Program. Almost everyone we represent from the beginning of the case
successfully completes the Diversion Program. We guide our clients through every
step of the Diversion process.

Ignition Interlock Requirements for Diversion Exceptions

As of January 1, 2012 people entering the Diversion Program are required to have an
approved ignition interlock device installed in any vehicle they drive during the one year Diversion period. This is not monitored by the Department of Motor Vehicles. If a person drives an employer’s vehicle for purposes of employment, they are not required to have a device in the employer’s vehicle if they disclose the fact that they are on Diversion to their employer and carry proof of that disclosure at anytime they are operating the employer’s vehicle.

Extension of Time to Complete DUII Diversion

If a person is unable to complete their DUII Diversion Program requirements within on year, a person may petition the court for an extension of the Diversion period. In order to get an extension a person must demonstrate that they have made a good faith effort to complete the program requirements and that they are able to complete program requirements within the extension period. An petition for extension must be made prior to the expiration of the Diversion period and a court may not allow more than an extra 180 days to complete the program.

Special Rules for Active Duty Military Personnel

Persons on Active Duty in the United States Military are allowed additional flexibility in completing DUII Diversion program requirements. When a court finds that a person is on Active Duty in the military, the judge is allowed to make two modifications to the terms of the Diversion Agreement. First, the court may extend the Diversion period for as long as is necessary for a person to complete the DUII Diversion Program. Second, the court is permitted to authorize a person to use programs offered in the military to satisfy the treatment requirement of the DUII Diversion program.

Diversion Revocation Hearings

If the District Attorney believes that you have violated or failed to
perform the conditions of the Diversion Agreement, the District Attorney
will issue an Order to Show Cause Why Diversion Should Not Be Revoked.

At the hearing, the State must prove that a violation has occurred. If the State
proves that you have not kept your promises, and the Court does not allow you to
stay in the Diversion Program, you will be convicted and sentenced for DUII. If
the state proves a violation the Court can immediately impose a sentence. In
Multnomah County the sentence will usually include at least 10 days in jail, a
$1,000 fine, a one year drivers license suspension, as well as probation for at
least 18 months, during which a you will be required to complete an alcohol and
drug evaluation and treatment, pay statutory fees and assessments and observe
other restrictions and conditions.

Even if the State proves a violation, the Court can still continue you in the
DUII Diversion Program.

We have excellent results in keeping clients in the DUII Diversion Program even
when violations have occurred.

Another DUII While in the DUII Diversion Program

Many persons receive DUII citations while they are still in the DUII
Diversion Program. If you are revoked from the DUII Diversion Program, you
move from Diversion to conviction and are sentenced on the DUII charge which
was in Diversion. If you are convicted on the new DUII charge you will then
be sentenced for a second DUII conviction. In Multnomah County we often see
20 – 30 day jail sentence recommendations on conviction number one and 20 –
30 additional jail days on conviction number two. We get very good results
for our clients in this situation by minimizing the impact of a double
conviction.

Probation Violation Proceedings

Formal or Enhanced Bench Probation

If you are convicted of DUII and fail to perform any of the requirements of
probation, for example, not completing treatment or violating a probation
condition (e.g. driving while suspended) you will receive a notice requiring
you to appear in court for a hearing.

At that hearing the judge will determine:

(1) If there has been a probation violation, and, if so

(2) What penalties should be imposed. Penalties for violations range from
continuation and extension of probation, to revocation of probation and
imposition of any remaining jail sentence. Often, sentences fall somewhere in
between. We have success in keeping clients on probation and out of jail.

When people fail to appear at a hearing the Court will issue a “no bail” bench
warrant for the persons arrest. It is not unusual for people to wait in jail for
a week to ten days before they appear in front of their sentencing judge.

If you get a hearing notice, or you have already missed your hearing, contact an
attorney immediately. We have good success in scheduling out of custody hearings

and getting our clients out of jail after they have been arrested.

Related DUI Charges

Often, clients are charged with related offenses along with the DUII charge.

The District Attorney can charge you with misdemeanor and felony crimes even

if the police officer did not give you a citation for that charge when you

were arrested. In multiple charge cases we have to defend the related

charges even if the client enters diversion on the DUII. Frequently, we are

able to get many, if not all the related charges dismissed.

Mr. O’Rourke’s vast experience as a Portland criminal  defense attorney and as a personal injury attorney working on vehicle accident cases gives him a significant advantage in representing persons charged with DUII and related driving crimes. The same legal issues, evidence and witnesses involved in personal injury vehicle accident cases are involved in DUII and Related Charge cases. His knowledge of medical issues and insurance law and practices are very helpful in presenting and resolving cases.

Most Frequent DUII Related Charges
and Current Statutes

1. Reckless Driving –ORS 811.140
2. Criminal Mischief In The Second Degree –ORS 164.354
3. Reckless Endangering Another Person –ORS 163.195
4. Assault In The Fourth Degree –ORS 163.160
5. Assault In The Third Degree –ORS 163.165
6. Assault In The Second Degree –ORS 163.175
7. Manslaughter In The First Degree –ORS 163.118
8. Manslaughter In The Second Degree –ORS 163.125
9. Failure To Perform Duties Of Driver When Property IsDamaged (Hit and Run)-ORS 811.700
10. Failure To Perform Duties Of Driver To InjuredPersons (Hit and Run)- ORS811.705
11. Fleeing Or Attempting To Elude A Police Officer(Vehicle)- ORS811.540 (1)(b)(A)
12. Fleeing Or Attempting To Elude A Police Officer (OnFoot)- ORS 811.540(1)(b)(B)
13. Failure To Take A Breath Test –ORS 813.095
14. Driving While Suspended (Misdemeanor) –ORS 811.182 (1) and (4)
15. Driving While Suspended (Felony) –ORS 811.182 (1) and (3)

New Crimes, Effective January 1, 2008

16. Aggravated Vehicular Homicide
17. Manslaughter in the First Degree
18. Assault In The First Degree

New Crimes, Effective January 1, 2010

19. Refusal to Submit to Urine Test – ORS 813.095

Below are general descriptions of how each DUII Related Crime may be committed
while DUII, and proven by the state and the consequences of conviction for each.
These crimes may also be committed without being DUII. Call us for a free
telephone consultation if you are charged with one of these crimes at
503-221-1425 or you can
tell us about your case.

Please remember that all of the circumstances of each individual case must be
analyzed to determine if there was an actual violation of the law. There are
many ways to avoid conviction or minimize the consequences of conviction of DUII
related charges. The State has to prove every element of each crime beyond a
reasonable doubt and there are defenses and/or evidentiary rules which may
prevent conviction in certain cases.

Do not read the following and decide to plead guilty and throw yourself on the
mercy of the court. That does not work. Get an experienced lawyer to evaluate
your case.

We at James F. O’Rourke Jr. and Associates are very successful in finding ways
to get DUII related crimes dismissed.

1. Reckless Driving – ORS 811.140

If you are DUII and your driving causes an accident, or a police officer
observes you almost hit a person or property or you exhibit poor driving at near
double the legal limit or you have an extremely high Blood Alcohol Content and
exhibit substantial impairment, you can be charged with Reckless Driving.

In order to convict you of Reckless Driving the state must prove that (1) on a

certain day (2) in a certain county (3) in Oregon (4) you (5) operated a motor

vehicle (6) on a public highway or premises open to the public (e.g. a parking

lot) (7) recklessly (8) in a manner that endangered people or property.

The state can prove “recklessness” by showing that you were aware of a

substantial risk of harm, but disregarded that risk. Being too intoxicated to

understand the risk is not a defense. A higher BAC (Blood Alcohol Content) and

greater degree of impairment due to the use of intoxicants by themselves cause a

substantial risk of harm to others. This “reckless” mental state is an element

of many of the other DUII related crimes discussed below.

Reckless Driving is a Class A Misdemeanor and carries maximum penalties of up to

one year in jail and a fine of up to $6,250. For a first conviction, your

drivers license will be suspended for ninety (90) days. For a second conviction

within five (5) years, your drivers license will be suspended for two (2) years.

For a third conviction within five (5) years, your drivers license will be

suspended for 3 years. A Hardship Permit is available with no waiting period.

Each conviction of Reckless Driving counts towards an Habitual Offender

Revocation.

You may be required to pay Restitution to the owner of damaged property or to

injured persons or their insurance companies for losses not paid by your

insurance.

We at James F. O’Rourke Jr. and Associates are successful in getting Reckless

Driving charges dismissed for many of our clients. Your criminal history and

your conduct before and after the incident and during the pendency of your case

can have a significant impact at sentencing.

2. Criminal Mischief In The Second Degree – ORS 164.354

If you are DUII and you are at fault in causing damage to property, other than

your own, like a mailbox, power pole, or vehicle you can be charged with

Criminal Mischief In The Second Degree.

You can be charged separately for each separate property item you damage. For

example, 3 separate damaged mailboxes can result in three separate charges.

In order to convict you of Criminal Mischief In The Second Degree the state must

prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you

(5) recklessly (6) caused damage to another persons property.

Criminal Mischief In The Second Degree is a Class A Misdemeanor. Each charge

carries maximum penalties of up to one (1) year in jail and a fine of up to

6,250. For a first conviction your drivers license will be suspended for ninety

days. For a second conviction within five (5) years, your drivers license will

be suspended for two (2) years. For a third conviction within five (5) years,

your drivers license will be suspended for 3 years. A Hardship Permit is

available with no waiting period.

Each conviction for Criminal Mischief In The Second Degree counts for purposes

of an Habitual Offender Revocation.

You may be required to pay Restitution to the owners of damaged property or

injured persons or their insurance companies for losses not paid by your

insurance.

We at James F. O’Rourke Jr. and Associates are successful in getting Criminal

Mischief in the Second Degree charges dismissed for many of our clients. Your

criminal history and your conduct before and after the incident and during the

pendency of your case can have a significant impact at sentencing.

3. Recklessly Endangering Another Person – ORS 163.195

If you are DUII and are at fault in having a collision with another vehicle in

which there is a driver and/or passengers, or are a danger to others by being

severely intoxicated and/or a hazard by your driving to others in or out of

vehicles or if you have a passenger in your vehicle under the age of 18, you can

be charged with Recklessly Endangering Another Person.

You can be charged separately for each person injured or threatened by your

driving. For example, if you have three passengers in your car and collide with

another vehicle with a driver and a passenger you can be charted with five

counts of Recklessly Endangering Another Person.

In order to convict you of Recklessly Endangering Another Person the state must

prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you

(5) recklessly (6) engaged in conduct (e.g. driving) (7) that created a

substantial risk of causing serious physical injury to another person.

Recklessly Endangering Another Person is a Class A Misdemeanor. Each charge

carries maximum penalties of up to one (1) year in jail and a fine of up to

6,250. For a first conviction your drivers license will be suspended for ninety

days. For a second conviction within five (5) years, your drivers license will

be suspended for two (2) years. For a third conviction within five (5) years,

your drivers license will be suspended for 3 years. A Hardship Permit is

available with no waiting period.

Each conviction for Recklessly Endangering Another Person counts for purposes of

an Habitual Offender Revocation.

You may be required to pay Restitution to the owners of damaged property or

injured persons or their insurance companies for losses not paid by your

insurance.

We at James F. O’Rourke Jr. and Associates are successful in getting Recklessly

Endangering Another Person charges dismissed for many of our clients. Your

criminal history and your conduct before and after the incident and during the

pendency of your case can have a significant impact at sentencing.

4. Assault In The Fourth Degree – ORS 163.160

If you are DUII and you are at fault in causing physical injury (e.g. whiplash)

to someone you can be charged with Assault In The Fourth Degree. For example, if

you are at fault in causing a collision with another vehicle and the occupants

of that vehicle or your vehicle or others are injured you can be charged with

Assault In The Fourth Degree.

If the injuries are serious, like a broken leg, you can be charged with Felony

Assault In The Third Degree (See Section 5 below).

You can be charged separately for each person injured.

In order to convict you of Assault In The Fourth Degree the state must charge

and prove either that (1) on a certain day (2) in a certain county (3) in Oregon

(4) you (5) recklessly (6) caused physical injury to another person.

“Recklessness” is discussed above under Reckless Driving. or

That (1) on a certain day (2) in a certain county (3) in Oregon that (4) you (5)

with criminal negligence (6) caused physical injury to another person (7) with a

dangerous or deadly weapon (e.g. a car).

Assault In The Fourth Degree is a Class A Misdemeanor. Each charge carries a

maximum sentence of one (1) year in jail and a fine of up to $6,250.00. For a

first conviction, your drivers license will be suspended for 1 year. You will

not be eligible for a hardship license until six (6) months after you complete

your jail sentence. If you have a prior conviction for a vehicular homicide, a

vehicular assault or any major traffic offense (DUII, Reckless Driving, Eluding

or DWS) in the last ten years you are not eligible for Hardship Permit.

“Criminal negligence” is similar to “recklessness” as discussed above under

reckless driving. When you act with criminal negligence you are unaware of a

substantial and unjustifiable risk that harm will occur and that risk is one

that a reasonable person would be aware of.

Each conviction for Assault In The Fourth Degree counts for purposes of an

Habitual Offender Revocation.

You may be required to pay Restitution to the owners of damaged property or

injured persons or their insurance companies for losses not paid by your

insurance.

We at James F. O’Rourke Jr. and Associates are successful in getting Assault In

The Fourth Degree charges dismissed for many of our clients. Your criminal

history and your conduct before and after the incident and during the pendency

of your case can have a significant impact at sentencing.

5. Assault In The Third Degree – ORS 163.165

If you are DUII and are at fault in recklessly causing serious physical injury

(e.g. a broken leg) with your motor vehicle or if you are DUII and you are at

fault in causing physical injury (e.g. whiplash) to a person with your motor

vehicle under circumstances which show “extreme indifference to the value of

human life,” you can be charged with Felony Assault In The Third Degree.

You can be charged separately for each person injured.

In order to convict you of Assault In The Third Degree the state must charge and

prove either that (1) on a certain day (2) in a certain county (3) in Oregon (4)

you (5) recklessly (6) caused serious physical injury to another person (7) by

means of a dangerous or deadly weapon (e.g. a car). or The state must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) recklessly (6) caused serious physical injury to another person (7) while showing “extreme indifference to the value of human life.” The state must prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) recklessly (6) caused physical injury to another person (7) with a dangerous or deadly weapon (a car) (8) while showing “extreme indifference to the value of human life.”

Recklessness is discussed above under Reckless Driving.

“Extreme indifference to the value of human life” means a kind of conduct, in

addition to recklessness, that shows you were not only aware of a risk of harm,

but that you did not care about the danger to the safety of other people. A good

example would be a “road rage” case, where an intoxicated person drives wildly,

at a high rate of speed, and causes an accident.

“Serious Physical Injury” is an injury to another person that causes them either

the permanent loss of use or protracted impairment of any bodily organ or limb

(e.g. broken leg), it can also involve an injury that places the person in

jeopardy of dying.

Assault In The Third Degree is a Class C Felony. Each conviction carries a

maximum prison term of five (5) years, a maximum fine of $125,000. The Oregon

Felony Sentencing Guidelines apply to convictions for Assault In The Third

Degree. The extent and permanency of the injuries to the other person, your

criminal history and your conduct before and after the incident and during the

pendency of your case can have a significant impact at sentencing.

New Law: For incidents occurring on or after July 1, 2009 Assault in the Third Degree resulting from a DUII accident is a Class B Felony with an enhanced punishment under the Oregon Sentencing Guidelines.

For each conviction for Assault In The Third Degree, your drivers license will

be revoked for five (5) years. You will be eligible for a hardship license two

years after the last day of any jail or prison sentence you serve.

If you have a prior conviction for a vehicular homicide, a vehicular assault or

any major traffic offense (DUII, Reckless Driving, Eluding or DWS) in the last

ten years you are not eligible for Hardship Permit.

You may be required to pay Restitution to the owners of damaged property or

injured persons or their insurance companies for losses not paid by your

insurance.

We at James F. O’Rourke Jr. and Associates are successful in getting Assault In

The Third Degree charges reduced or dismissed for many of our clients. Your

criminal history and your conduct before and after the incident and during the

pendency of your case can have a significant impact at sentencing.

6. Assault In The Second Degree – ORS 163.175

If you are DUII and you are at fault causing serious physical injury to another

person with your vehicle while showing extreme indifference to the value of

human life you can be charged with Assault In The Second Degree.

You can be charged separately for each person injured. For an example, see the

discussion of State v. Skelton under Manslaughter In The First Degree.

In order to convict you of Assault In The Second Degree the state must prove

that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5)

recklessly (6) caused serious physical injury to another person (7) by means of

a dangerous or deadly weapon (e.g. a car) (8) while showing “extreme

indifference to the value of human life.”

“Recklessness” is discussed above under Reckless Driving. “Extreme indifference

to the value of human life” is discussed above under Assault In The Third

Degree.

Assault in the Second Degree is a Class B Felony. Each conviction carries a

maximum prison term of ten years, a maximum fine of $250,000.00 and 36 months of

post-prison supervision. Also, Assault In The Second Degree is a “Measure 11″

offense which carries a mandatory minimum sentence of 70 months in prison with

no reduction of that sentence for good behavior or sentence reduction programs.

A judge is required to impose the 70 month sentence.

For each conviction for Assault In The Second Degree, your drivers license will

be revoked for eight (8) years. You will be eligible for a hardship license four

(4) years after the last day of any jail or prison sentence you serve.

ORS 807.252 convictions may prevent you from getting a Hardship Permit at all.

7. Manslaughter In The First Degree – ORS 163.118

If you are DUII and you are recklessly at fault in causing the death of another

person with a motor vehicle under circumstances manifesting extreme indifference

to the value of human life, you can be charged with Manslaughter In The First

Degree.

You can be charged separately for each person killed. For example, in

State v. Skelton:

Defendant was driving his pick up truck on a rural highway in southern Oregon.

As he rounded a curve, he crossed the center line and struck seven motorcyclists

in the oncoming lane. Two of the motorcyclists were killed and two others were

injured. The defendant’s blood alcohol content was .23.

Defendant was drinking with friends immediately prior to the accident. As he

tried to leave, he was warned not to drive by a friend because he was too

intoxicated. He ignored the warning. The friend was so concerned she called 911

after he left.

Defendant was charged with First degree manslaughter for causing the deaths of

two of the motorcyclists, based on him using a dangerous or deadly weapon (his

truck) to take the lives of the two men. He was charged with second degree

assault for one victim who lost a leg, constituting “serious physical injury.”

He was charged with third degree assault for causing less serious injuries to

another victim.

The factors establishing “extreme indifference to the value of human life”

appear to be: his severe level of intoxication (BAC .23); and his failure to

heed the warning of the concerned friend prior to the accident. He was

specifically warned of the danger prior to the accident. He also had multiple

prior convictions for DUII, and had knowledge of the risks of DUII driving from

those cases

In order to convict you of Manslaughter In The First Degree the state must prove

that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5)

recklessly (6) caused the death of another person (7) while showing “extreme

indifference to the value of human life.”

“Recklessness” is discussed above under Reckless Driving. “Extreme indifference

to the value of human life” is discussed above under Assault in the Third

Degree.

Manslaughter In The First Degree is a Class A Felony. Each conviction carries

maximum penalties of 20 years in prison and a fine of up to $375,000. Each

conviction carries a Measure 11 minimum sentence of 120 months in prison with no

reduction of that sentence for good behavior or sentence reduction programs. The

sentencing judge is required to impose the 120 month sentence.

For a conviction for Manslaughter In The First Degree, your drivers license will

be revoked for life. You can petition the Court for restoration of your driving

privileges after ten years.

You can be required to pay restitution to the estate of the decedent.

See number 17 below for 2007 changes in the law.

8. Manslaughter In The Second Degree – ORS 163.125

If you are DUII and you are at fault in recklessly causing the death of another

person with a motor vehicle, you can be charged with Manslaughter In The Second

Degree.

For example, in State v. Ruiz-Martinez:

The defendant was driving his van on a rural road. He was traveling about 70

miles an hour. He went through an intersection against a red light. He did not

slow down nor apply his brakes before entering the intersection. He struck a

compact car in the intersection, knocking the car off the road and into a tree

where it caught fire. The driver of the car was killed. A passenger in

defendant’s van was injured. The defendant’s blood alcohol content was .18.

Defendant was convicted of second degree manslaughter for recklessly causing the

death of the driver of the other car. He was convicted of fourth degree assault

for recklessly injuring his passenger.

In order to convict you of Manslaughter In The Second Degree the state must

prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you

(5) recklessly (6) caused the death of another person with a motor vehicle.

“Recklessness” is discussed above under Reckless Driving.

You can be charged separately for each person killed.

Manslaughter In The Second Degree is a Class B Felony. Each conviction carries a

maximum prison term of 10 years and a fine of up to $250,000.00. Each conviction

carries a Measure 11 minimum sentence of 75 months in prison with no reduction

of that sentence for good behavior or sentence reduction programs. A sentencing

judge is required to impose the 75 month sentence.

For each conviction for Manslaughter In The Second Degree, your drivers license

will be revoked for eight years. You may petition the Court for restoration of

your driving privileges ten years after you are released from prison.

You can be required to pay restitution to the estate of the decedent.

9. Failure To Perform Duties Of Driver When Property Is

Damaged (Hit and Run) – ORS 811.700

If you are driving a motor vehicle and have an accident in which you know

another persons’ attended or unattended vehicles or other property is damaged,

and you do not stop and remain at the accident scene until you have given or

left the required information, you can be charged with Failure To Perform Duties

Of Driver.

In order to convict you of Failure to Perform the Duties of a Driver When

Property is Damaged the state must prove that (1) on a certain day (2) in a

certain county (3) in Oregon (4) you (5) were involved in a collision in which

another person’s property is damaged (6) while driving a motor vehicle (7) and

knowingly failed to immediately contact the owner of the property to identify

yourself exchange insurance information or (8) if the owner of the property

cannot be located, by leaving your identification and insurance information in a

place where it will be seen by the owner of that property.

Failure To Perform Duties Of Driver is a Class A Misdemeanor and carries maximum

penalties of up to one (1) year in jail and a fine of up to $6,250.

For a first conviction, with no Major Traffic Offenses within the last 5 years,

your drivers license will be suspended for 90 days. For a second conviction

within 5 years, your drivers license will be suspended for 1 year. For a third

or more convictions within 5 years, your drivers license will be suspended for 3

years. A Hardship Permit is available with no wait.

Each conviction for Failure To Perform Duties Of Driver counts for purposes of

an Habitual Offender revocation.

You can be required to pay restitution to the victim who suffered a financial

loss.

We at James F. O’Rourke Jr. and Associates are successful in getting Failure To

Perform Duties Of Driver charges dismissed for many of our clients.

10. Failure To Perform Duties Of Driver To Injured Persons

(Hit and Run) – ORS 811.705

If you are driving a vehicle and are involved in an accident that results in

injury or death to a person and you do not stop and remain at the scene as

required by law and give information and render reasonable assistance to any

person injured in the accident, you can be charged with Failure To Perform

Duties Of Driver To Injured Persons.

In order to convict you of Failure to Perform the Duties of a Driver To Injured

Persons the state must prove that (1) on a certain day (2) in a certain county

(3) in Oregon (4) you (5) were in an accident where another person was injured

or killed (6) while driving a motor vehicle (7) and knowingly failed to stop as

close to the scene of the accident as possible and (8) remain at the scene of

the accident and (10) provide identification and insurance information with any

driver or survivor and (11) render reasonable assistance to the injured by

calling for assistance and (12) remain at the scene until the police arrive

(unless transporting the injured party or yourself for medical care).

Failure To Perform Duties Of Driver To Injured Persons is a Class C Felony. Each

conviction carries a maximum prison term of five (5) years and a maximum fine of

$125,000 and up to 36 months of Supervised Probation or post-prison supervision.

Failure To Perform Duties Of Driver To Injured Persons is a Class B Felony if a

person suffers serious physical injury or dies as a result of the accident. Each

conviction carries a maximum prison term of 10 years and a maximum fine of

$250,000.

The Oregon Felony Sentencing Guidelines apply to convictions for both Class C

and B Felony Failure To Perform Duties Of Driver.

For each conviction of Failure To Perform Duties Of Driver To Injured Persons as

a Class C Felony, your drivers license will be revoked for 1 year. No Hardship

Permit is available.

For each conviction of Failure To Perform Duties Of Driver To Injured Persons as

a Class B Felony, your drivers license will be revoked for 1 year unless someone

dies as a result of the accident in which case the revocation is for 5 years and

the wait period does not start until after any period of incarceration or DMV’s

receipt of the record of conviction if there is no incarceration. No Hardship

Permit is available.

You may be required to pay Restitution to the owner of damaged property or

injured persons or their insurance companies for losses caused by you and not

paid by your insurance.

We at James F. O’Rourke Jr. and Associates are successful in getting Failure To

Perform Duties Of Driver To Injured Persons charges reduced or dismissed for

many of our clients.

11. Fleeing Or Attempting To Elude A Police Officer (Vehicle) – ORS 811.540 (1)(b)(A)

If you are operating a motor vehicle and you know that a uniformed police

officer wearing a badge in a marked police car has given you a visual (e.g.

lights) or audible (e.g. siren or voice) signal to stop and you flee or attempt

to elude the pursuing officer in your vehicle, you can be charged with Fleeing

Or Attempting To Elude A Police Officer (Vehicle)

In order to convict you of Fleeing Or Attempting to Elude a Police Officer in a

Vehicle the state must prove that (1) on a certain day (2) in a certain county

(3) in Oregon (4) you (5) were operating a motor vehicle and (6) are given a

visual, audible or hand signal to stop your vehicle by a person you knew to be a

police officer and (7) you knowingly flee or attempt to elude the pursuing

police officer.

Fleeing Or Attempting To Elude A Police Officer (Vehicle) is a Class C Felony. A

conviction carries a maximum prison term of five (5) years and a maximum fine of

$125,000.00. The Oregon Felony Sentencing Guidelines apply to a conviction for

Fleeing Or Attempting To Elude A Police Officer (Vehicle).

For each conviction of Fleeing Or Attempting To Elude A Police Officer

(Vehicle), your drivers license will be suspended for 90 days. For a second

conviction within 5 years, your drivers license will be suspended for 1 year.

For a third or more convictions within 5 years, your drivers license will be

suspended for 3 years. A Hardship Permit is available with no wait.

A conviction for Fleeing Or Attempting To Elude A Police Officer (Vehicle)

counts for purposes of an Habitual Offender revocation.

Fleeing Or Attempting To Elude A Police Officer (Vehicle), particularly while

DUII is probably enough to constitute “extreme indifference to the value of

human life.” If someone is injured as a result of your conduct while Fleeing Or

Attempting To Elude A Police Officer (Vehicle) and DUII you may be charged with

Assault In The Third Degree or even Assault In The Second Degree. See Sections 5

and 6 above.

Your criminal history and your conduct before and after the incident and during

the pendency of your case can have a significant impact at sentencing.

12. Fleeing Or Attempting To Elude A Police Officer (On Foot) –

ORS 811.540 (1)(b)(B)

If you are operating a motor vehicle and you know that a uniformed police

officer wearing a badge in a marked police car has given you a visual (e.g.

lights or hand signals) or audible (e.g. siren or voice) signal to stop and you

flee or attempt to elude the pursuing officer, you can be charged with Fleeing

Or Attempting To Elude A Police Officer.

In order to convict you of Fleeing Or Attempting to Elude a Police Officer in a

Vehicle the state must prove that (1) on a certain day (2) in a certain county

(3) in Oregon (4) you (5) are given a lawful signal to stop by the police and

(7) you knowingly flee or attempt to elude the pursuing police on foot.

Fleeing Or Attempting To Elude A Police Officer is a Class a Misdemeanor. The

maximum jail sentence is one (1) year and the maximum fine is $6,250.

For each conviction of Fleeing Or Attempting To Elude A Police Officer, your

drivers license will be suspended for 90 days. For a second conviction within 5

years, your drivers license will be suspended for 1 year. For a third or more

convictions within 5 years, your drivers license will be suspended for 3 years.

A Hardship Permit is available with no wait.

A conviction for Fleeing Or Attempting To Elude A Police Officer counts for

purposes of an Habitual Offender revocation.

We are successful in getting Fleeing Or Attempting To Elude A Police Officer (On

Foot) charges dismissed for many of our clients.

Your criminal history and your conduct before and after the incident and during

the pendency of your case can have a significant impact at sentencing.

13. Failure To Take A Breath Test –

ORS 813.095

If you refuse to take a breath test after you have been requested to do so in

accordance with the Implied Consent Laws you can be charged with Failure To Take

A Breath Test.

In order to convict you of Refusal to Take a Breath Test the state must prove

that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5)

operated a motor vehicle (6) On a public highway or premises open to the public

(e.g. a parking lot) and (7) a police officer (8) with reasonable grounds to

believe you are DUII (9) requests you take a breath test and (10) you refuse to

submit to the test.

Failure To Take A Breath Test is an unclassified traffic offense punishable by a

fine of at least $500 and not more than $1,000.

There is no license suspension or revocation for a conviction for Failure To

Take A Breath Test. However, there is a 1 to 3 year license suspension for

refusing to take a breath, blood, or urine test under the Implied Consent Laws.

14. Driving While Suspended (Misdemeanor) –ORS 811.182 (1) & (4)

If you drive a motor vehicle when you know your license is suspended or revoked,

or drive outside the limits of your Hardship Permit, for convictions of

misdemeanor or felony crimes involving the use a motor vehicle, being a habitual

offender or for failing or refusing a breath, blood, or urine test as required

by the Implied Consent laws, you can be charged with Misdemeanor Driving While

Suspended.

In order to convict you of Driving While Suspended (misdemeanor) the state must

prove that (1) on a certain day (2) in a certain county (3) in Oregon (4) you

(5) knowingly (6) operated a motor vehicle (7) on a public highway or premises

open to the public (e.g. a parking lot) (8) at a time when your driving

privileges were suspended or revoked or (9) drive outside of the permission

given in a Hardship Permit and (10) you are suspended for a conviction for a

crime or blood, breath, or urine test failure or refusal.

Misdemeanor Driving While Suspended is a Class A Misdemeanor. The maximum jail

sentence is one (1) year and the maximum fine is $6,250. There is no additional

drivers license suspension for a conviction of Misdemeanor Driving While

Suspended.

Each conviction for Misdemeanor Driving While Suspended counts for purposes of a

Habitual Offender Revocation.

Upon receipt of the conviction for Misdemeanor Driving While Suspended , DMV

should revoke your Hardship Permit.

Conviction for Misdemeanor Driving While Suspended can be the basis for a

probation violation hearing.

Your criminal history and your conduct before and after the incident and during

the pendency of your case can have a significant impact at sentencing.

15. Driving While Suspended (Felony) –

ORS 811.182 (1) and (3)

If you drive a motor vehicle when you knew your license is suspended or revoked

for a conviction for Felony DUII, or any degree of Assault, murder, manslaughter

or criminally negligent homicide resulting from the operation of a motor vehicle

you can be charged with Felony Driving While Suspended.

In order to convict you of Driving While Suspended (felony) the state must prove

that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5)

knowingly (6)operated a motor vehicle (7) on a public highway or premises open

to the public (e.g. a parking lot) (8) at a time when your driving privileges

were suspended or revoked or (9) drive outside of the permission given in a

Hardship Permit and (10) you are suspended for a conviction for Murder, any

degree of Manslaughter, or any degree of Assault which involved the operation of

a motor vehicle or Felony DUII.

Felony Driving While Suspended is a Class B Felony. A conviction carries a

maximum prison term of 10 years, a maximum fine of $250,000.00, and up to three

years of Supervised Probation or three years of Post Prison Supervision

The Oregon Felony Sentencing Guidelines apply to a conviction for Felony Driving

While Suspended.

For each conviction of Felony Driving While Suspended, your drivers license will

be revoked for one year. No Hardship Permit.

Each conviction for Felony Driving While Suspended counts for purposes of a

Habitual Offender Revocation.

Upon receipt of the conviction for Felony Driving While Suspended , DMV should

revoke your Hardship Permit.

Conviction for Felony Driving While Suspended can be the basis for a probation

violation hearing.

Your criminal history and your conduct before and after the incident and during

the pendency of your case can have a significant impact at sentencing.

16. Aggravated Vehicular Homicide – ORS 163.149

If you are DUII and you act either with criminally negligence, recklessness, or

recklessly under circumstances manifesting extreme difference to human life in

causing the death of another person with a motor vehicle, and you have a prior

conviction for manslaughter or criminally negligent homicide with motor vehicle

while under the influence of intoxicants you can be charged with Aggravated

Vehicular Homicide.

You can be charged separately for each person killed.

In order to convict you of Aggravated Vehicular Homicide the state must prove

that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) with

criminal negligence, or recklessly, or recklessly while showing “extreme

indifference to the value of human life.” (6) caused the death of another person

(7) with a motor vehicle. “Recklessness” is discussed above under Reckless

Driving. “Extreme indifference to the value of human life” is discussed above

under Assault In The Third Degree. “Criminal negligence” is discussed above

under Assault In The Fourth Degree.

Aggravated Vehicular Homicide is a Class A Felony. Each conviction carries

maximum penalties of 20 years in prison and a fine of up to $375,000. Each

conviction carries a Measure 11 minimum sentence of 240 months in prison with no

reduction of that sentence for good behavior or sentence reduction programs. The

sentencing judge is required to impose the 240 month sentence.

For a conviction for Aggravated Vehicular Homicide, your drivers license will be

revoked for life. You can petition the Court for restoration of your driving

privileges ten years after you are released from prison.

You can be required to pay restitution to the estate of the decedent.

17. Manslaughter in the First Degree – ORS 163.118

If you are DUII and you are criminally negligent or recklessly at fault for

causing the death of another person with your motor vehicle, and you either have

three prior convictions for DUII within the last 10 years or you have a prior

conviction for any degree of manslaughter, criminally negligent homicide or

felony assault with a motor vehicle while under the influence of intoxicants you

can be charged with Manslaughter In The First Degree.

You can be charged separately for each person killed.

In order to convict you of Manslaughter In The First Degree the state must prove

that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5) with

criminal negligence or recklessly (6) caused the death of another person (7) by

means of a vehicle (8) while under the influence of intoxicants and (9) you have

three prior convictions for DUII in the ten year period before the incident or

you have a prior conviction for vehicular manslaughter, criminally negligent

homicide or any felony assault . “Recklessness” is discussed above under

Reckless Driving. “Criminal negligence” is discussed above under Assault In The

Fourth Degree.

Manslaughter In The Degree is a Class A Felony. Each conviction carries a

maximum prison term of twenty years, a maximum fine of $500,000.00 and 36 months

of post-prison supervision. Also, Manslaughter in the First Degree is a “Measure

11″ offense which carries a mandatory minimum sentence of 120 months in prison

with no reduction of that sentence for good behavior or sentence reduction

programs. A judge is required to impose the 120 month sentence.

For each conviction for Manslaughter In The First Degree, your drivers license

will be revoked for Life. You will be eligible for a hardship license ten years

after you are released from prison.

18. Assault In The First Degree – ORS 163.185

If you are DUII and you are recklessly at fault in causing serious

physical injury to another person with your vehicle and you either have

three prior convictions for DUII within the last 10 years or you have a

prior conviction for any degree of manslaughter, criminally negligent

homicide or felony assault with a motor vehicle while under the influence of

intoxicants you can be charged with Assault In The First Degree.

You can be charged separately for each person injured. For an example, see the

discussion of State v. Skelton under Manslaughter In The First Degree.

For each conviction for Assault In The First Degree, your drivers license will

be revoked for eight (8) years. You will be eligible for a hardship license four

(4) years after the last day of any jail or prison sentence you serve.

ORS 807.252 convictions may prevent you from getting a Hardship Permit at all.

19. Failure to Submit to a Urine Test – ORS 813.095

If you refuse to submit to a urine test after you have been requested to do so in

accordance with the Implied Consent Laws you can be charged with Failure To Submit to a Urine Test.

In order to convict you of Failure To Submit to a Urine Test the state must prove

that (1) on a certain day (2) in a certain county (3) in Oregon (4) you (5)

operated a motor vehicle (6) On a public highway or premises open to the public

(e.g. a parking lot) and (7) a police officer (8) with reasonable grounds to

believe you are DUII (9) requests you submit to a urine test and (10) you refuse to

submit to the test.

Failure submit to a urine test is an unclassified traffic offense punishable by a

fine of at least $500 and not more than $1,000.

There is no license suspension or revocation for a conviction for Failure To

Submit to a Urine Test. However, there is a 1 to 3 year license suspension for

refusing to take a breath, blood, or urine test under the Implied Consent Laws.

This law became effective January 1, 2010.

---

Duii crimes are serious criminal charges with serious potential consequences.

Get advice from an experienced lawyer before you make any decisions or say anything to anyone.