Oregon Court Agrees - You Can "Attempt" A DUI

By: Robert Harris

In a landmark case this month called State v. Baty the Oregon Court of Appeals found that there is a crime of attempted Driving Under the Influence. This has very big impacts on defendants for several reasons. Here are the facts in the Baty.

"At around 3:00 p.m., Beaverton Community Service Officer McNeel was patrolling a local Fred    Meyer parking lot for illegal use of disabled-only parking spaces.  ORS 811.615.   McNeel saw a red Ford Taurus parked in one such space.   The car was unoccupied and had an Oregon disability parking permit hanging from the rear-view mirror.   McNeel verified that the permit was current and learned that it belonged to a woman born in 1926.   As he was acquiring that information, he saw a white Acura without a disability permit pull into the disabled-only space next to the Taurus.   The driver of the Acura got out and went to a nearby ATM machine.   At that point, McNeel approached the cars and parked his patrol car behind the Acura, completely blocking it and partially blocking the Taurus. "

"He then first saw defendant, who was now standing in front of the Taurus.   According to McNeel, defendant did not look old enough to have been born in 1926, and the officer became suspicious that she was unlawfully using some other person's disability parking permit."

"After citing the driver of the Acura, McNeel approached defendant, who was by then behind the wheel of the Taurus.   Based on her appearance, he developed the suspicion that she was under the influence of intoxicants.   He called for back up, and police officers Bowen and Buelt arrived on the scene shortly thereafter.   Neither of the officers saw defendant operate the car.   Bowen approached defendant and could smell alcohol on her.   He administered field sobriety tests, which she failed.   Bowen then arrested her and took her to a nearby police station, where a breath test showed a blood alcohol content of .17 percent, .09 above the legal limit."

 

The Defendant argued that at most, the driver "attempted" to drive her car and never really completed the driving. The Defendant asked the court to instruct the jury that it could find the Defendant guilty of attempted DUII rather than the crime of DUII. The trial court said there was no such thing as an attempted DUII, and refused the instruction.

The Defendant appealed and the Court of Appeals agreed with Defendant. It held that attempted DUII was a lesser included offense of DUII and given the facts here, the jury should have been instructed on attempted DUII and given the opportunity to convict the Defendant of that offense.

Here is how criminal statutes are written. Crimes are defined in specific statutes. Robbery, Assault, Burglary, Drug crimes, they all have a statute that defines that crime. There is also a separate statute for "Attempt to Commit a Crime". That statute says that in a case where a defendant didn't complete the crime (Like they entered a bank to rob it, but were tackled by security before they got ot the teller), then as long as they took a substantial step to complete the crime, they are guilty of attempt to commit the crime they were committing. An attempt could even include planning to commit a bank robbery if, for instance, someone bought guns, blueprints and had a written plan to rob the bank. Those are all substantial steps to commission of the bank robbery.

So, the Defendant argues, the attempt statute applies to the DUII statute and therefore if there is evidence of attempt, the jury should have that option.

Now, how does that effect DUI's in Oregon? Two ways.

First, many DUII's involve someone who was asleep at the wheel. Or made it home, or were contacted by the police in some way where the officer didn't observe the driving. In those cases, a jury if given the option of only guilty of DUII or acquittal, may convict of the DUII. But if also given the opportunity to find the person guilty of an attempted DUII, a jury may take that as a compromise verdict.

Second, a DUII conviction has many mandatory sentencing factors. For a first DUII there is a mandatory 1 year license suspension, 2 days in jail or 80 hours of community service. A second DUII can get a 3 year license suspension. And a third DUII can get a lifetime loss of license. A fourth DUII is a felony. But the attempted DUII conviction most likely doesn't count as a DUII, so none of these mandatory sanctions would apply.

The State will likely appeal this to the Oregon Supreme Court. But as of now, it is the law in Oregon.