Straight Talking on The Law

Driving Under The Influence of Allergy Medication?

 - New Proposed Oregon Law Would Make it So -

By Jennifer Robins, DUI Defense Attorney

Proposed House Bill 2115 could make drastic changes to Oregon DUII law.  Currently, you can be charged with a DUII if you are under the influence of alcohol, inhalants (think huffing spray paint) or a controlled substance.  A controlled substance is any drug listed in the Federal Government’s Schedule of Controlled Substances (which can be found at http://www.deadiversion.usdoj.gov/schedules/orangebook/orangebook.pdf).  In very general terms, a controlled substance is any street drug or certain prescription drugs, such as morphine or oxycodone, etc.

The new House Bill would also make it a crime to drive under the influence of “any other drug,” as defined by statute.  The statute is Oregon Revised Statute 475.005(13), but basically means any drug you take, even over the counter or homeopathic remedies, that adversely affects a person’s mental or physical faculties to a noticeable and perceptible degree.  I frequently take over the counter allergy medication and it can make me feel “loopy”, and this law would allow arrest and prosecution if police think I am driving under the influence of allergy medication!

The proposed law does allow a defense to a DUII charged under this provision if the defendant can prove that they lawfully obtained and used the drug, they used the drug in the prescribed dosage and followed all warnings from the manufacturer or pharmacist or physician, and that they experienced a reaction they could not have reasonably anticipated.  This defense would not be allowed if the “drug” was taken in conjunction with alcohol, and inhalant or a controlled substance.

DUII law in Oregon changes frequently, and proposed House Bill 2115 would open a whole new can of worms.  If you or someone you know is facing a DUII, it is important to speak with an experienced Oregon DUII attorney as soon as possible.   

Diversion in Oregon. Ignition Interlock Requirement and Work Vehicles

By: Ryan Anfuso

You’re on Diversion. You avoided a DUII conviction. That’s good. Now As part of the DUII Diversion agreement, the court ordered that an approved ignition interlock device (IID) be installed in any vehicle operated by you during the period of diversion. Violation of this section is a Class A traffic violation in Oregon. You were informed by the court and your lawyer that if you drive in violation of this section you can be terminated both from the Diversion program and be sentenced on DUII charge.  But what about a work vehicle? Does that have to have the IID installed, or are there any exceptions to this requirement?

The plain text of the statute seems to indicate the answer is no. But, as with many interpretations of law, the answer is….maybe. It’s arguable that you are eligible to drive an employer owned vehicle within the course and scope your employment without installing the ignition interlock device on an employer owned vehicle so long as your employer is notified of your participation in the diversion program.

The ignition interlock requirement during diversion is a mandatory requirement that began in January of 2012. Sometimes when new legislation takes effect, the old statutes that were in place no longer make sense. In the case of ignition interlock, there is a good argument that you can drive an employer owned vehicle without an ignition interlock device if you are required in the course and scope of your employment to operate a motor vehicle owned by your employer, and that your employer has notice that you are operating the vehicle while you are participating in the diversion program and would otherwise be required to have an ignition interlock device installed.

                The current law, ORS 813.606, only allows for this exception under narrow circumstances. In order to qualify for the exception as it presently stands, you must either be convicted of DUII or be operating on a hardship permit resulting from a suspension based on either a failure to blow or a breath test failure. In the case of DUII diversion, you are not convicted and therefore the exception for a suspension resulting from a conviction would not apply. Furthermore, because your license was not suspended by entering the diversion program you may not be operating under a hardship permit, and therefore the exception for a hardship permit doesn’t apply.

Nonetheless, it is clear that the legislature intended to create an exception to the ignition interlock requirement when an employee is operating an employer owned vehicle in the course and scope of their employment.

 Though I cannot promise you that you would not be found in violation of either the Diversion agreement if you are operating an employer owned vehicle under the circumstances described above, there is a very good argument you would not be in violation if you were operating such a vehicle provided you were operating it in the course and scope of employment and that you have proof of employer notification with you in the car.

If you had an attorney represent you in your diversion, you need to contact that lawyer and ask his or her advice on this matter. It is not settled law, and the plain text of the new diversion law doesn’t provide for an exception. 

 

Ryan Anfuso is a Portland DUII Attorney practicing Criminal Defense Law at Harris Law Firm.