What is DUI Diversion?
DUI Diversion is an agreement with the court to do certain things in exchange for having the case dismissed. The arrest will always stay on your record but you will not be convicted of a crime if your only charge is driving under the influence of intoxicants. Some courts will allow a diversion on other charges.
How can a lawyer help with DUI Diversion? First, your lawyer should do more than simply help you fill out paperwork for DUI diversion. The lawyer should review your defenses and advise you on the strength or weakness of the government’s case. We look for factual defenses and legal defenses. We know the driving under the influence case law and statutes very well. We have argued DUII cases to the Oregon Court of Appeals and the Oregon Supreme Court. The lawyer should clearly explain the obligations, time lines and costs of diversion. We advise our clients about the diversion program so there are no surprises about your agreement with the court. The lawyer should also help you with department of motor vehicle issues or hardship driving applications which are not part of the diversion program.
Diversion is an option for some individuals charged with their first DUII or if their previous DUII case was resolved more than 15 years ago. To be eligible for diversion under Oregon Revised Statute 813.215, a person arrested for a DUII cannot be participating in a diversion agreement or have a DUII or the statutory counterpart pending in another jurisdiction, has not participated in a similar drug or alcohol rehabilitation program ordered by the court, has not been convicted of a crime where someone else was injured as a result of operating a motor vehicle, there were no injuries involved with this accident if there was an accident, and the driver did not hold a commercial driving license, drive a commercial motor vehicle.
There are ways the court can exercise its discretion to deny entry into diversion if a person fails to appear in court, has a minor child in the car or if the person is not a good candidate for diversion or it would not benefit the community. Additionally, early recognition of a drug or alcohol problem, a good attitude/desire towards completing the program or if the defendant/community would benefit from diversion can allow the judge to enter you into diversion over the state’s objection.
Misdemeanor Jury Trial
In Oregon, a misdemeanor jury trial has six jurors. All six jurors must agree on the verdict. We tailor each jury selection towards your case and use our experience to help select the jury. Jury selection is an important part of the trial. In a misdemeanor case, you can excuse up to three jurors. Although the lawyer will be doing the talking, we always ask our clients to listen and think about which jurors they would like to be excused. We discuss the jury selection process with our clients before making any decisions on the best jurors for your case.
Felony Jury Trial
In Oregon, a felony case will have twelve jurors. At least ten of the twelve jurors must agree on the verdict. You are allowed to excuse up to six jurors in addition to asking the judge to excuse jurors for cause.
Burden of Proof for Criminal Charges
To be convicted of a crime, the judge or jury must find you guilty beyond a reasonable doubt. Reasonable doubt is when someone is innocent, if there is some evidence of guilt, if the case is equal between the prosecution and defense, if there is more than a 50% chance of guilt, if there is a high probability of guilt or if the state has not proven the case beyond a reasonable doubt.
Some crimes such as hit and run when property is damaged, criminal mischief resulting in damage to property, assault in the fourth degree, reckless endangering and theft may be civilly compromised. The advantage of a civil compromise is that the case can be dismissed without a trial. This requires a written agreement between the victim and defendant, a release of claims by the defendant and other requirements.
Driving Under the Influence of Intoxicants (DUIII)
To be convicted of driving under the influence of intoxicants, the state must prove beyond a reasonable doubt that a person drove a vehicle while under the influence of alcohol, a scheduled controlled substance or inhalent. Driving requires putting the vehicle in motion at the time the person is under the influence. This requires movement but does not require the car to be on because towing, steering or propulsion of the vehicle qualify as driving under Oregon law. Sitting in a car with the keys in the ignition or the engine running is not driving under Oregon law. In an alcohol DUII case, the state must prove beyond a reasonable doubt at the time of driving that a person’s blood alcohol level was at or above .08 percent or the person’s mental or physical faculties were adversely affected by alcohol to a noticeable or perceptible degree. In a controlled substance DUII, the state must prove beyond a reasonable doubt that the scheduled controlled substance was adversely affecting the person’s mental or physical faculties when the vehicle was driven. The same is true for inhalant driving under the influence of intoxicant cases.
ORS 137.225 allows you to seal the conviction or arrest on your record if depending on your criminal history, the type of crime and your record. If you have been arrested for a DUII, you are not eligible to have the arrest expunged unless the case is dismissed or you are found not guilty by a court or jury. When you complete diversion, the arrest will remain on your record and is not eligible for expungement. When you file an expungement it will clear the arrest and seal the case.