The Absurdity of the New Ignition Interlock Requirement for DUII Diversion
by: Reoberdorfer • June 12, 2012 • no comments
Oregon's DUII Diversion statute provides, as of January 1, 2012: "The court shall require as a condition of a driving while under the influence of intoxicants diversion agreement that an approved ignition interlock device be installed in any vehicle operated by the person during the period of the agreement when the person has driving privileges." </font></font></span>[http://www.oregonlaws.org/ors/813.602
First, the good part: traditionally it's been the case that a Driving While Suspended (DWS) arrest, while not a good thing, would not revoke a DUII Diversion contract. And that's still the case: the statute specifically refers to vehicles "operated by the person during the period of the agreement when the person has driving privileges." That is, if you don't have driving privileges and drive without an ignition interlock, you haven't voided the plain language of the DUII Diversion statute (although you've committed a crime, which is a bad thing; you shouldn't have done it; and it will add to a whole new host of other problems). But what if your trial court's Diversion contract uses broader language than the statute? One county in particular liked to impose a "no drinking" clause in the Diversion contract before that was part of the actual law. Those non-statutory "add-ons" will be problematic for trial courts. The Court of Appeals has reminded us, again and again, that the statutory DUII Diversion contract is to be applied strictly pursuant to its own terms -- and that the judiciary may NOT alter those terms. See, e.g., State v. Reed, 241 Or App 47 (2011) (local court may not waive $3 of filing fee after the fact). The legislature establishes the tightly-guarded terms of this contract, without alteration. Ultimately this is a problem no one wants to have, but at least we know the language of the DUII Diversion statute permits people who err in their judgment and drive without privileges to, nevertheless, complete their other Diversion obligations and fulfill the contract. Now, to look at the absurd and truly damaging language of this new IID requirement. It doesn't apply to just "motor vehicles." The phrase is "any vehicle." That includes the obvious motor vehicles like motorcycles, boats, and jet-skis, but how about things without motors like bikes, skateboards, and push-scooters? Yup, the plain language of the statute applies to those too. ORS 801.590 ("'Vehicle' means any device in, upon or by which any person or property is or may be transported or drawn upon a public highway and includes vehicles that are propelled or powered by any means."). And of course we could use the idea that the legislature doesn't want absurd results (where and how would you install an ignition interlock on a skateboard?), except for Judge Schuman's trenchant, funny, and correct analysis that in Oregon: we can't. State v. Chilson, 219 Or App 136, 140 (2008) (Oregon courts cannot interpret statutes to avoid plainly absurd results). What does this mean for our DUII Diversion eligible clients?
I think we'll have less people entering Diversion, and more trials. Some of our best trial cases now are shunted into Diversion -- not so much anymore. Some people love riding motorcycles, and don't want to simply agree to take a year off doing so (anyone who has worked on a motorcycle's electrical system knows: don't mess with it). Remember, this requirement applies off-road too, even on private land -- it's for "any vehicle," during the term of Diversion where the defendant has driving privileges. I'm not just talking about dirt-bikes on the dunes -- how about forklift operators in private warehouses? Driving one of those without an IID invalidates your Diversion agreement too -- it's a vehicle. Finally, the fleecing of the public. I'm hearing horror stories from clients dealing with overwhelmed yet greedy IID installers who are foisting contracts of adhesion on them with terms like an $800 early cancellation fee, $120 install fee, and $85/month. That's not enough -- some of these devices have "rolling tests," which mean that you not only must breath in the device to start your car, but every 15 minutes or so while on the road in response to its beep. Puts a whole new spin on the drive down I-5 to Eugene, doesn't it? Technically, our clients are supposed to pull over for the "rolling tests" -- but most probably won't, and where would you on I-5 every 15 minutes? It's a safety nightmare, in addition to being stupid. I am unaware of any provision of this new law that requires "rolling tests" at all, so I'm strongly encouraging all clients to do their research on IID providers, and select one that installs a cheaper device with a reasonable contract and the absence of "rolling tests." I have to wonder -- was it really such a problem with people drinking as they drive? In the thousands of DUIIs I've handled, I remember exactly one that involved actually drinking WHILE driving. Or is this just another profit-driven expensive add-on brought to us by the prison-industrial industry. And now for the real absurdities: bicycles and skateboards. They don't have an ignition system. Yet this law doesn't exempt them -- "any vehicle" means those too. Bicycling without an ignition interlock violates the new Diversion statute. It's a brave new world, and I think it will involve a lot more trials for citizens who hear what this new statute actually means to them. Of course, perhaps the legislature will fix this oversight by changing "vehicles" to "automobiles operated on public roads," but I doubt it.
