Whether you call it driving under the influence (DUI), driving while intoxicated (DWI), operating under the influence (OUI), operating while intoxicated (OWI), or driving while ability impaired (DWAI), operating a vehicle while impaired by alcohol, drugs, or a combination of the two, is a serious offense.
If you are convicted of driving under the influence of intoxicants (DUII), which is what it is formally called in Oregon, you may face significant fines and lengthy jail time. A conviction can also limit your ability to work in certain industries, may put your driver’s license in jeopardy, and could follow you around limiting your opportunities for the rest of your life.
With so much at stake, it is crucial that you have a dedicated advocate in your corner who knows how to fight Oregon DUII charges. Attorney Michael R. Hughes is an experienced criminal defense attorney who frequently represents Oregon residents and tourists who are accused of drunk or drugged driving.
What Is A DUII?
ORS 813.010(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
- (a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140, or 813.150;
- (b) Is under the influence of intoxicating liquor, cannabis, a controlled substance, or an inhalant; or
- (c) Is under the influence of any combination of intoxicating liquor, cannabis, a controlled substance, and an inhalant.
- (d) Within two hours after driving a vehicle, and without consuming alcohol in the intervening time period, has 0.08 percent or more by weight of alcohol in the blood of the person, as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150.
Let’s break this down, starting with parts (a) and (d). If your blood alcohol concentration (BAC) is at least 0.08 at the time you are pulled over, or within two hours of the time you were pulled over, the state assumes you were driving under the influence of intoxicants. This is sometimes referred to as “per se” impairment, but it is not as strong of evidence as those ominous Latin words might suggest. There are ways to defend yourself against unfair and inaccurate BAC testing.
Parts (b) and (c) are less straightforward. If law enforcement officials believe you have been drinking or using another intoxicant, OR drinking and using another intoxicant, AND your physical or mental facilities are adversely affected to a noticeable or perceptible degree, you can be charged with DUII no matter what your BAC is. This is a very subjective definition that leads to mistakes and abuse by law enforcement officials.
Attorney Hughes’ knowledge of the latest science on impairment, and ability to identify errors made by law enforcement officials can help you put up a strong defense no matter what evidence the government says it has against you.
BAC Testing
Thanks to Oregon’s definition of DUII, which includes specific references to blood alcohol levels, BAC testing plays a key role in most DUII cases. BAC or blood alcohol concentration can be measured by either breath or blood testing.
Oregon, like most other states, has an “implied consent law” that requires drivers who law enforcement officers suspect are impaired to submit to BAC testing. Refusing to take a BAC test can result in the suspension of your license.
BAC tests are accurate if done correctly, but mistakes are often made. Attorney Hughes knows what testing mistakes and weaknesses to look for, and how to show that certain results should be thrown out.
- Breath Tests — The machines that law enforcement officials use for breath tests must be properly and regularly maintained. Inaccurate results can occur if the machine is not properly calibrated, or when other factors trigger a false positive result. The machines must also be operated by someone who is trained to use them and interpret the results.
- Blood Tests — Tests administered to measure your blood alcohol level can be challenged if the blood sample was compromised by human error during collection, handling, testing, or analysis. The results of blood test results can also be successfully suppressed if law enforcement officials do not follow the proper legal procedures when taking a sample.
Urine Testing
As our state’s laws regulating cannabis, psilocybin, and other drugs have been relaxed, accurate testing for intoxicants other than alcohol has become important. BAC tests, as the name implies, only test for alcohol. To test for other intoxicating substances, Oregon relies on chemical urine testing.
ORS 813.131 says:
(2) Any person who operates a motor vehicle upon premises open to the public or the highways of this state shall be deemed to have given consent, subject to the Motorist Implied Consent Law, to a chemical test of the person’s urine for the purpose of determining the presence of cannabis, a controlled substance or an inhalant in the person’s body if the person is arrested for driving while under the influence of intoxicants in violation of ORS 813.010 or of a municipal ordinance and either:
(a) The person takes the breath test described in ORS 813.100 and the test discloses a blood alcohol content of less than 0.08 percent; or
(b) The person is involved in an accident resulting in injury or property damage. A urine test may be requested under this paragraph regardless of whether a breath test has been requested and regardless of the results of a breath test if one is taken.
This means that a law enforcement official can pull someone over, observe them for signs of intoxication, and then give them a breath test. If the driver passes the breath test, the officer can force them to take a urine test. There are several problems with this.
First, the signs of intoxication are similar to the signs of nervousness. Most people are nervous when they get pulled over, but law enforcement officials will suggest a driver is impaired instead of nervous because that allows them to run chemical urine tests.
The second issue is that there is no consistent measurement of what being “impaired” or “under the influence” actually is. This puts legal users of cannabis and psilocybin at risk of getting a ticket when they get behind the wheel, even when they have done nothing wrong.
Cannabis also stays in the system much longer than other drugs. While a urine test may identify someone who is under the influence of other drugs, it can trap people who test positive for inactive THC metabolites in their urine, even after prolonged abstinence from cannabis use.
By highlighting these problems with urine testing, Attorney Hughes has successfully defended many people accused of driving under the influence of cannabis and other intoxicants.
Flimsy Field Sobriety “Tests”
In addition to requiring drivers to take breath, blood, or urine tests, Oregon law enforcement officials can also require drivers suspected of drunk or drugged driving to submit to field sobriety testing.
These so-called tests, which were developed by the National Highway Traffic Safety Administration (NHTSA) in the late 70s/early 80s, are used by law enforcement officials across the country despite their questionable reliability. The three most common tests are the horizontal gaze nystagmus (HGN) test, walk & turn test, or the one leg stand test.
- HGN is an involuntary jerking of the eyes that occurs as the eyes move from side to side. When a person consumes alcohol, nystagmus is exaggerated and may occur at lesser angles depending on the degree of impairment. This is what the police are looking for when they ask you to follow their finger or a light as they move it back and forth.
- The Walk and Turn and One-Leg Stand tests require a person to listen and follow a long set of confusing instructions while performing seemingly simple physical movements. People who are impaired have difficulty with divided attention tasks, so following the officer’s commands is challenging.
Although the tests are standardized and have been in use for decades, they are in no way perfect indicators of intoxication. At best, they are a tool the police can use to extend the amount of time they are able to detain and observe a driver they suspect is impaired without actually arresting them.
Too often, they are an exercise in humiliation and subjugation, deployed by an officer on a power trip. Attorney Hughes is often able to get the results of these tests thrown out because they were incorrectly deployed, or should not have been administered at all. He looks for evidence that:
- The officer was not properly trained to administer the test.
- The results were biased by the officer’s suspicions about the driver’s intoxication.
- The given test was unreliable because of the environment, weather, or lighting.
- The driver was destined to fail a particular test because of their age, weight, hearing, or the fact that they were wearing dry contacts.
All in all, field sobriety tests are incredibly flimsy evidence of intoxication that Attorney Hughes regularly attacks and suppresses.
The Subjective Nature of an Officer’s Gut Instinct
If law enforcement officials had it their way, they would be able to do breath, blood, urine, or field sobriety testing on anyone, at any time. Thankfully, such intrusions are limited by Oregon state law, which requires officers to have a reasonable suspicion that a driver is under the influence before any test can be administered.
However, Oregon state law does not specify how to determine if someone is under the influence of marijuana, magic mushrooms, or any other drug. Instead, law enforcement officers are supposed to make a judgment call. Even with specialized training, this is a very subjective determination since there is no bright line rule for determining if someone’s physical or mental facilities are adversely affected to a noticeable or perceptible degree.
Attorney Hughes is often able to cast doubt on an officer’s suggestion that a driver was intoxicated by questioning their observations and reasoning. The charges against you may be dropped if his investigation reveals inconsistencies or potential mistakes by law enforcement officials too eager to slap the cuffs on someone.
Attorney Hughes will also review the evidence relied on for the traffic stop that resulted in your alcohol DUII charge. If the cops should not have pulled you over in the first place, or violated your Constitutional rights in some way during the stop, they are the ones in the wrong, not you.
An Attorney Who Understands Your Side
A DUII is a serious offense, and a conviction can result in fines, jail time, and the loss of driving privileges. It is important to put up a strong defense to minimize the impact an alcohol or drug DUII charge has on your life.
Attorney Michael R. Hughes is an experienced criminal defense attorney who regularly defends tourists and Oregonians accused of driving under the influence. Whether your BAC was found to be over the legal limit, there were intoxicants in your urine, you failed a field sobriety exercise, or the police administered one of these tests without probable cause, Attorney Hughes will explore all of your options and help you defend yourself. He will work tirelessly to preserve your driving privileges, your freedom, and your peace of mind. Please contact him today to schedule an initial consultation.