Out of State DUII Convictions
by: Rjohnson • January 11, 2011 • no comments
How many times do they have to catch you driving under the influence to get three convictions? (Four, of course; the diverted first DUII doesn't really count.)
I had oral argument today in the Court of Appeals about whether a first DUII conviction from Nevada counts as a conviction in Oregon for purposes of a lifetime driver's license revocation. There is a decent argument that it doesn't; the first conviction in Nevada has a significant treatment component that makes it look kind of like a diversion.
The panel (Haselton, Armstrong, Duncan) were interested in the issue, and asked about hypothetical other states where DUII is an infraction, or where there is no diversion of any sort. There was some suggestion from the judges that, in a state where there is no diversion program at all, the first conviction might not count as a conviction in Oregon. It is unusual, to say the least, for the court to suggest an interpretation of the law that is more favorable to criminal defendants than the interpretation I am advancing. It was just oral argument, so I wouldn't want to read too much into it. But the court seemed interested in the unfairness that would result if out-of-state conduct had more serious consequences than the same conduct would have in Oregon. I'll raise the issue the next time I have an out-of-state conviction counting as the first DUII in an Oregon prosecution, and I'd like to hear about it if others do so.
Rankin Johnson IV is a Portland attorney handling primarily appeals, post-conviction relief, and federal habeas corpus. www.briefwright.com
