By WILLIAM FRANCIS
Diversion is a government-sponsored behavior modification program. It is administered by the probation department in cooperation with the court and private treatment providers.
If a person is charged with DUI as a first offense, and other conditions are met, the court and the district attorney generally will allow entry into a program known as "diversion." If the diversion program is completed successfully, the charge of DUI is dismissed.
Diversion is a last resort, not a first resort
A person charged with DUI should consider diversion as a last resort, not a first resort.
Diversion is an option that should be considered carefully. Anybody who is thinking about entering diversion should have the clear understanding that diversion is an option to be considered only when all other options have been exhausted.
When you go to court for the first time, remember: You have 30 days from the date of your first court appearance to decide if you want to enter diversion.
To get into diversion, first plead guilty or no contest to a crime
Oregon DUI law is more strict than other states, in many respects. For example, first-time DUI charges in California and Washington may be negotiated and settled with a plea to a lesser offense. In Oregon, the law does not permit a person charged with DUI to plead to a lesser charge. The only break available in Oregon for a first-time DUI is a program known as "diversion."
Diversion is a government-sponsored behavior modification program. It is administered by the probation department in cooperation with the courts and private treatment providers.
The worst problem with diversion is that, to take advantage of the opportunity to enter this program, a person has to plead guilty or no contest to a crime.
There are lots of conditions
Diversion is offered only if a defendant has had no prior DUIs in the past 15 years.
Diversion isn't easy. It's not cheap, either. And, what you do in diversion is very similar to what you have to do if you are convicted of DUI and sentenced to probation.
However, there are advantages to diversion that make it attractive to a lot of people:
(1) There is no possibility of jail (as long as the program requirements are completed), and
(2) There is no license suspension. (This does not affect any implied-consent suspension ordered by the DMV.)
A person won't lose the chance to enter diversion by asking a judge for time to talk with an attorney about the diversion option.
Judges are always be willing to schedule a second court appearance so that a person charged with DUI will have time to meet with an attorney and consider alternatives before accepting an offer to enter diversion.
Completing diversion will not remove a DUI from your criminal record
Completion of the diversion program will result in a dismissal of a DUI charge. However, diversion does not remove a DUI from a person's criminal record.
Many agencies of the federal government treat diversion like a conviction for a crime. So do other countries. If you enter diversion, you may not be allowed to enter other countries, including Canada.
There may be employment consequences if you have a professional license. Professional licensing agencies may initiate inquiries and investigations regarding DUIs that were resolved in a diversion agreement.
If a person entering diversion doesn't abide by the diversion agreement (for example, by drinking or getting arrested again for DUI), or doesn't complete the requirements of the diversion program, the court proceeds to sentencing on the guilty or no contest plea that is already entered.
If the diversion agreement is revoked, penalties are imposed, including jail, fines, and suspension of driving privileges.
Know What You're Getting Into
If you decide to take the deal and get into diversion, these are the requirements to enter and complete the diversion program:
(1) Plead to DUI.
(2) Pay the program fee ($490).
(3) Report to the Jackson County Community Justice office for an alcohol and drug evaluation.
(4) Pay $150 for the drug and alcohol evaluation.
(5) Enroll in a treatment program.
(6) Abstain completely from alcohol and all non-prescription drugs for the diversion period (one year).
(7) Install an ignition-interlock device.
DUI diversion is a one-year program. If all of the program requirements are successfully completed, the criminal charge is dismissed (although it remains a part of a life-long criminal record).
In a diversion, a person's criminal record will always show the arrest, plea, entry into diversion and, finally, the dismissal of the case. It is a public record.
Your best course of action is to see an attorney
Keep in mind that many lawyers who are not specialists in this area of the law (and many judges, too) will automatically tell you that you should enter diversion before they know the first thing about your case.
Before pleading guilty or no contest to DUI or any other crime, it's best to review the police reports and talk to a lawyer. You definitely should speak with an experienced DUI specialist before you agree to enter the diversion program.
You should plead NOT GUILTY at your first court appearance on a DUI.
At your first court appearance, the judge will set a new court date, about a month out.
You can use that time to get all of the discovery in your case, review it with an attorney, and make the decisions that are right for you.
By WILLIAM FRANCIS
The experience is humiliating, terrifying and unforgettable.
When you were arrested or cited for DUI, you realized immediately that you could be sentenced to time in jail, ordered to pay stiff fines and surrender your driver's license. Then there was more fear and worry. You could lose your job. You could lose your right to travel. You could lose your good reputation.
It's natural to want to turn back the clock. It's common to be angry. It's easy to become confused, frustrated and scared.
If you're in this situation, talk with an attorney who specializes in DUI and other major traffic crimes. A DUI expert can help you understand what's going on.
A competent DUI attorney can look at the facts of your case and see defenses where you thought there were none. For example, a DUI defense attorney will want to know if the police made a lawful stop, or if the police made contact with you improperly or unlawfully.
A police officer may have asked questions and requested that you submit to field sobriety tests. These tests are extremely unreliable and are designed to make you look guilty of DUI.
You may have been asked to blow into a machine. You should know that breath test results can be challenged in court. In Oregon, the state's breath testing machine is the "Intoxilizer 8000." This machine is not the most reliable indicator of a person's blood alcohol content -- and juries are not required to accept the results from this device.
By WILLIAM FRANCIS
Often, fairness is all a person charged with DUI needs to prevail.
Not every case needs to be resolved in a trial. Some cases should be dismissed. Some can be resolved in a plea.
Unfortunately, in Oregon, a DUI case cannot be "pled down" to a lesser charge. While our neighboring states frequently offer a lesser charge of "wet reckless," as an alternative to a DUI, this option isn't available in Oregon.
And, in Oregon, diversion often is an unattractive option for many because it requires a person charged with a DUI to admit that he or she committed a crime. After a person enters diversion, the record of the arrest and the guilty plea to the DUI can never be expunged. For many professionals, including commercial drivers, pilots, military personnel, and others, a record of a DUI diversion is not an acceptable option. For these reasons and others, there are many who experience the unfairness of having a permanent, criminal record for a first-offense DUI.
Sometimes, the only way to make the system work fairly is to take a case to trial.
Juries are bound by the law to presume a defendant's innocence. At trial, a defendant has the right to confront witnesses and the force the government to prove its case beyond a reasonable doubt. Evidence can be excluded if it was obtained by police improperly or unlawfully. These are the protections guaranteed by the United States Constitution.
By WILLIAM FRANCIS
If you have been accused of DUI, chance are you have never been in trouble with the law. You may believe you have no choice but to plead guilty.
While you always have the option of pleading guilty, it shouldn't be your first move.
It makes sense to talk to a criminal defense specialist with experience defending persons who have been charged with DUI. The criminal justice system encourages people who have no experience in the law to make mistakes. Nice people are usually at a severe disadvantage.
It's normal for anyone to feel remorse, confusion and embarrassment after getting a DUI or being charged with any other crime. But it is a mistake to go to court and plead guilty or enter a diversion program at your first court appearance.
If you have been arrested or cited for DUI in Oregon, the best idea is to have an attorney go to court with you, or appear on your behalf, at your first appearance date. Our judges allow plenty of time for persons charged with DUI to decide what to do. Legal questions arise in every DUI case. There are questions of whether the police made a lawful stop or a lawful arrest, and whether the police followed the law and their training as they gathered their evidence.
DUI evidence often includes testimony about psychomotor abilities, chemistry, biology, pharmacology, toxicology, and various other fields. The reliability of this evidence often depends on standards and procedures of government-operated crime labs, but these are subject to criticisms among scientists who are not employed by law enforcement agencies. Police are not scientists, yet generally they are allowed to testify that their procedures, along with their opinions, are based on science. They are trained to claim the authority of scientists when they testify at trials.
With this experience and training, it is almost always impossible for an unrepresented person to prevail against the police. However, in the jury selection process, and continuing through the opening statements, cross-examination of the police officer, and closing arguments, an attorney can show a jury the weaknesses in the state's case.
I've taken a lot of DUI cases to trial before juries. I've gone to Boston and New Orleans to study the law and science. I've gone to Los Angeles, Las Vegas and Philadelphia for police training programs in DUI investigation. I've been trained by police in Drug Recognition protocols. I've examined and cross examined forensic experts about the toxicology and effects of alcohol, marijuana, prescription medications, and harder substances such as heroin, cocaine, narcotic analgesics, stimulants and opiates.
From this experience, I'm confident telling you that the criminal justice system, in the interests of keeping us "safe," has established a process for prosecuting DUIs that is often an affront to our Constitutional protections of due process.
The "DUI exceptions" to the Constitution are persistently troubling. The police procedures that are brought to bear against innocent drivers who are doing nothing more offensive than traveling through Jackson County, Oregon, at night, are heavy-handed, and the outcome is often already known before the blue lights begin to flash.
Excesses may include arbitrary arrests, based on minimal evidence, that result in criminal DUI charges. Yet hundreds of people surrender to the court system every year without a question. They admit to accusations of crimes they didn't really commit but didn't know they could fight.