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Richard E Oberdorfer
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Richard Oberdorfer’s Answers

246 total


  • Is there a statute of limitations to being required to have a breathalyzer in your vehicle after a duii oregon. 2010 - 2015

    I've waited five years hoping to avoid renting a breathalyzer device.

    Richard’s Answer

    To get your Oregon license fully reinstated after a DUII conviction, you must first wait out the suspension period, and then:

    (a) file a SR-22 insurance certificate with DMV for 3 years, ORS 806.075; and

    (b) install an Ignition Interlock Device (IID) for 1 year for a first conviction; and 2 years for second, ORS 813.602(1).

    Some folks were confused by 2011′s House Bill 3075, which added an IID requirement for DUII Diversion as of January 1, 2012. However, the Bill did not change the already existing IID requirement for people convicted of DUII, as opposed to those entering Diversion (I think the confusion stems from the fact that newspaper coverage at the time covered the Bill as introduced, which did extend the time for IIDs for DUII convictees to be 2 years, across the board. The Bill was not passed in that form.).

    Even if the law had changed for the worse between, say, the time of conviction and the time a person was ready for reinstatement, Mannelin v. DMV, 176 Or App 9 (2001), says that the more onerous current statute would apply. Mannelin rejected expertly-argued ex post facto, double jeopardy, and bill of attainder arguments. In Oregon, the law at the time of reinstatement is what applies.

    Finally, I should add that this post doesn’t address third Oregon DUII convictions — because those come with a Lifetime License Revocation. There is only one, very limited, escape valve from that lifetime sentence, and it deserves it’s own separate answer, if necessary.

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  • My ten years from sentencing for my third DUI in Portland Oregon is up in 9/2015. How much to petition the courts for license?

    I haven't had any driving offenses since. I have a job. I transfer schools in the fall and need to be able to get their. Has anyone been through this yet? I have been told this is a fairly new process. Thank you for your time.

    Richard’s Answer

    A few Oregon DUII lawyers have filed these petitions, with a fair amount of success -- depending on how your life has gone in the past decade. January 1, 2004, marked the beginning of Oregon’s experiment with “lifetime license revocation” for a third DUII conviction. Some people are mistakenly told that it’s a “10-year suspension.” It’s not, it’s a lifetime revocation — with a possibility of petitioning for your license back after 10 years. January 1, 2014, was the first time we started seeing lawyers petitioning to get people their driving privileges back.

    It’s no easy row to hoe. In short, you must prove by clear and convincing evidence that you’re no longer a threat. Technically, that you are “rehabilitated,” completed treatment, anddo “not pose a threat to the safety of the public.” ORS 809.235(4). It’s pretty tough to prove a negative. I think the best shot would be — with a good lawyer — showing that you’ve got 10 years of stable sobriety, an AA sponsor, and community and family connections who need you to drive. That’s an ideal candidate — but anyone with 10 years of fairly blameless history may have a shot. It’s also quite likely required (and a great selling point to the judge) to promise to install an Ignition Interlock Device (IID), see ORS 813.602(1)(c) (requiring IID “For a second or subsequent conviction, for two years after the ending date of the suspension or revocation caused by the conviction.”) (thanks to excellent DUII lawyer Bruce Tarbox for this tip). As lawyers we should be prepared to start marshaling evidence for these petitions now, and for contact from folks who have served ten years of a license revocation.

    ORS 809.235(2) provides some of the nuts and bolts:

    “(c) The district attorney of the county in which the person’s driving privileges were revoked shall be named and served as the respondent in the petition.
    (3) The court shall hold a hearing on a petition filed in accordance with subsection (2) of this section. In determining whether to grant the petition, the court shall consider:
    (a) The nature of the offense for which driving privileges were revoked.
    (b) The degree of violence involved in the offense.
    (c) Other criminal and relevant noncriminal behavior of the petitioner both before and after the conviction that resulted in the revocation.
    (d) The recommendation of the person’s parole officer, which shall be based in part on a psychological evaluation ordered by the court to determine whether the person is presently a threat to the safety of the public.
    (e) Any other relevant factors.
    (4) The court shall order a petitioner’s driving privileges restored if, after a hearing described in subsection (3) of this section, the court finds by clear and convincing evidence that the petitioner:
    (a) Is rehabilitated;
    (b) Does not pose a threat to the safety of the public; and
    (c) If the sentence for the crime for which the petitioner’s driving privileges were revoked required the petitioner to complete an alcohol or drug treatment program, has completed an alcohol or drug treatment program in a facility approved by the Director of the Oregon Health Authority or a similar program in another jurisdiction.
    (5) Upon receiving a court order to restore a person’s driving privileges, the department may reinstate driving privileges in accordance with ORS 809.390, except that the department may not reinstate driving privileges of any person whose privileges are revoked under this section until the person complies with future responsibility filings.”

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  • I am looking to get my license back in Michigan after losing it to a DUI 7 1/2 years ago when I was 21.

    I finished all my requirements for my 2 year probation including all payments during that time. I don't drink and I don't do drugs but I also don't attend AA. Being a student in debt, and a mother to one I can't afford a lawyer to represent me. I ...

    Richard’s Answer

    If you're an Oregon resident, visit any full-service Oregon DMV and apply to get a license.

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  • I have a duii and two counts of reckless endangerment what happens if I plead guilty and don't accept diversion?

    None

    Richard’s Answer

    SHORT ANSWER: It would be just like Diversion, but worse.
    LONG ANSWER: In addition to the conditions of DUII Diversion (alcohol and drug evaluation and treatment, Victim Impact Panel, etc.), you'd get: jail (at least 48 hours) or community service (at least 80 hours, and unlikely); instead of 1 year of no drinking/drugs, you'll get at least 2 (up to 5); and you'll get a 1-year driver license suspension on top of whatever is coming from DMV for failing/refusing a breath test. You'll also become a convicted criminal with a non-expungeable conviction(s) for the rest of your life. Instead of a $490 filing fee, you'd have at least $1000 in fines. In short, either Divert or go to trial -- pleading if Diversion eligible makes zero sense.

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  • How are Fake ID cases handled once sent to the DA's office?

    If a wallet was lost and ended up at the police station and they go to determine who it belonged to by driver identification, yet they find two ID's, one being fake. Used for getting into over-21 bars. How would the DA handle it? They know it was ...

    Richard’s Answer

    When the police or DA's investigator telephone you or corner you at work or home, repeat after me: "I don't answer questions. Lawyer." Then, in response to every subsequent question, "Lawyer."

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  • I did not install an IID since I didn't apply for hardship permit.(not driving) 1 yr. Suspension ends 7/13/15.

    My one year DMV suspension ends 7/13/15. I didn't apply for a hardship permit, as I'm not driving. I was just reading the DMV requirements to reinstate my license in July, and I'm confused as to whether I was to install an IID in a car I'm not dri...

    Richard’s Answer

    There’s been some confusion here. To get your Oregon license fully reinstated after a DUII conviction, you must first wait out the suspension period, and then:

    (a) file a SR-22 insurance certificate with DMV for 3 years, ORS 806.075; and

    (b) install an Ignition Interlock Device (IID) for 1 year for a first conviction; and 2 years for second, ORS 813.602(1).

    Some folks were confused by 2011′s House Bill 3075, which added an IID requirement for DUII Diversion as of January 1, 2012. However, the Bill did not change the already existing IID requirement for people convicted of DUII, as opposed to those entering Diversion (I think the confusion stems from the fact that newspaper coverage at the time covered the Bill as introduced, which did extend the time for IIDs for DUII convictees to be 2 years, across the board. The Bill was not passed in that form.).

    Even if the law had changed for the worse between, say, the time of conviction and the time a person was ready for reinstatement, Mannelin v. DMV, 176 Or App 9 (2001), says that the more onerous current statute would apply. Mannelin rejected expertly-argued ex post facto, double jeopardy, and bill of attainder arguments. In Oregon, the law at the time of reinstatement is what applies.

    Finally, I should add that this post doesn’t address third Oregon DUII convictions — because those come with a Lifetime License Revocation. There is only one, very limited, escape valve from that lifetime sentence, and it deserves it’s own separate blog post.

    See question 
  • 7 years ago I was arrested for DUI and I didn't do diversion. I just got pulled over for speeding and arrested. What to expect?

    I received the DUI 7 years ago blowing a .19. I did all the judge ordered besides the diversion. The # they gave me to call for it never once got an answer or voicemail so I called the police station and they gave me a different # and that number ...

    Richard’s Answer

    First, FTA (Failure to Appear) as a crime requires that one KNOWINGLY fail to appear for a court date. If you didn't know, you're in fact innocent. One of your DUII Diversion requirements would have been to keep the court apprised of your mailing address -- but that would just lead to a revocation of Diversion, it would not supply notice or responsibility on you for criminal FTA. On the other hand, it means your Diversion was likely long-ago revoked, and you're waiting to be sentenced on your DUII conviction that was entered many years ago. You're looking at least at 48 hours jail or 80 hours community service, 1-year license suspension, $1000 fine, and alcohol evaluation and treatment. On the FTA, it sounds like you have a valid defense -- get a good lawyer to handle both matters for you, and good luck!

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  • I got a dui 7 years ago in califorina

    I had a misdemeanor dui when I was 20. My licence was suspended for a year. I paid all fines but did not enroll in the dui classes. About a year ago I went to talk to court because I had a warrant out for my arrest because the dui classes were cou...

    Richard’s Answer

    Mr. Kahn is right -- first, apply for an Oregon license. The application will ask if you've ever been suspended in any state, for how long, why, and where. If you're currently suspended in any state, you're unlikely to get a license here. Oregon's DMV help line is 503-299-9999. My blog post on the issue of Oregon DMV's treatment requirements is here: http://oberlaw.com/uncategorized/relicensing-and-proof-of-treatment/

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  • Will my DUI/DUII be revoked? What can I do to fight it?

    I was placed in the DUI/DUII diversion program in Clackamas county by circuit Judge Susie L Norby. Sometime ago, I finally got my license back, got my SR-22 filed, and an IID (SmartStart) breathalyzer installed in my vehicle. My first rep...

    Richard’s Answer

    Watch your mail carefully. "Show cause" notices are mailed to whatever address the court has for you. If the mail is returned, or if you fail to appear at the hearing, you can be convicted in absentia. You should check with the court and PADES to confirm they both have your correct address. Keeping the court apprised of your correct mailing address is one of your Diversion contract promises. Frankly, you should hire a good DUII specialist to handle your case for you (and check on the address issue). And you should hire that person immediately. Going to court without a lawyer is like handling radioactive material and hoping you don't get sick.

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  • My boyfriend had a CDL and got a DUII and we need to move

    We are planning on moving to Idaho and my boyfriend is suppose to be taking classes for his DUII. Do we have to stay in state until he finishes his classes or is there a way to do all of this in Idaho?

    Richard’s Answer

    He would have to completely start treatment anew, and would get no credit for treatment he's in now. He'd need to get permission from ADES to transfer to a new treatment provider and pay a re-referral fee. If in DUII Diversion, he'd need to alert ADES and the court (and, to be safe, the DA) to his new mailing address. Mr. Kahn answered how to proceed if on probation. And finally, I echo his admonition to telephone his attorney ASAP!

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