DUII Corner

DUII Diversion and Military Service:  HB 2702 recently gave additional protections to U.S. Military personnel when applying into and participating in a DUII diversion program.  The law change now requires courts to allow military personal additional time to enter into a diversion program (so long as they are on active duty), and permits the extension of the diversionary period outside the 180 day maximum for any length of time the “court deems necessary.”  In addition, the bill allows military personnel to participate in a treatment program that is outside the jurisdiction in which they are charged.

Dentures and Breath Test Results:  The failure to remove a Defendant’s dentures prior to administering a DUII breath test is often over argued by Defense counsel as a logical explanation for a test failure.  While it is evidence a jury can consider regarding the validity of the test, it does not render a test inadmissible.  In State v. Allen, 74 Or. App. 275, 279 (1985) rev. den. 300 Or. 111, the Court of Appeals held that the presence of dentures in a motorist’s mouth during a breath test to determine blood alcohol concentration did not render the results inadmissible, but rather, could go to the weight of the results.  It is, however, advisable to follow all Intoxilyzer 8000 pre-test procedures including strict adherence to the 15 minute observation period.  The Intoxilyzer 8000 guide provides that the observation period is “the most important step in the breath testing process” and that it is “to ensure that there is no possibility of residual alcohol or mouth contamination causing a result that does not reflect the subject’s true blood alcohol concentration.”

Right to Private Phone Call:  Make sure that you give a Defendant an opportunity for a “private phone call” with an attorney prior to administering the breath test.  If a Defendant (on a DUII case) requests to talk to an attorney then you must give that Defendant an opportunity to talk to an attorney in private.  In State v. Timothy Allen Sawyer (CTA, July 23, 2008) the Court held that an officer who didn’t tell a defendant that he’d leave the room for a phone call had a “chilling effect” that interfered with a Defendant’s right to counsel.  In this particular case the Defendant had requested to speak to an attorney while en route to the police station.  After arriving a the police station the officer told the Defendant that “You can use the phone to call anyone you want, including a lawyer” but the officer did not explicitly tell the Defendant that he would leave the room for a “private call” — as the result the breath test was suppressed.

When can you use a “statutory counterpart”?  Oregon’s DUII statute provides that it is a class C felony if a defendant has been convicted of DUII or it’s “statutory counterpart” in another jurisdiction at least three times.  This issue is often raised by a defendant when they have an out of state conviction for DUII — and the wording/penalties of that statute are not identical to Oregon’s DUII law.  In State v. Mersman, (Court of Appeals, November 28, 2007), the court held that “the universe of statutory counterparts is not limited to statutes that have identical elements and therefore are duplicates.  It is sufficient that, in keeping with the ordinary meaning of the counterpart the statutes are either remarkably similar, because we conclude…that they have the same use, role, or characteristics.”

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