How Does Reckless Driving Relate To DUII In Oregon?
Interviewer: Why would someone be charged with reckless driving in addition to DUII?
Shannon: In Oregon, it is fairly common to see an additional charge of reckless driving with a driving under the influence of intoxicants citation. The reason is: Here in Oregon, reckless driving is seen as a completely separate offense from DUII.
The crimes do have similar elements. However, reckless driving is not considered a lesser included offense of DUII here in Oregon. Reckless driving is when a person recklessly drives a vehicle upon a highway or premises open to the public; in the manner that endangers the safety of persons or property.
A lot of the times, district attorneys move forward with the reckless driving on a citation because someone driving under the influence is driving in a manner which could possibly endanger the safety of persons or property.
Interviewer: Is issuance of a reckless driving citation a way for district attorneys to stack charges? Do they get a more favorable result saying, by virtue of being under the influence of intoxicants you are also being reckless?
Shannon: The definition of recklessly pertains to the mental state. In Oregon, a DUII is statutory. There is no mental state required. The state does not have to prove anything as far as what you were thinking. For reckless driving, they do have to prove you had a reckless mindset.
That means you were aware of and consciously disregarded the substantial and unjustifiable risk that harm could occur or will occur. That harm can occur to somebody, meaning their persons or their property.
There is another section of the definition that says the risk must be of such nature and degree that disregard thereof constitutes gross deviation from the standard of care a reasonable person would use in the situation.
That is much more difficult for the state to prove than just a driving under the influence of intoxicants. Again, driving under the influence of intoxicants is statutory and does not have a mental element component.
Interviewer: What is the tactical reason prosecutors add reckless driving charges? Do they want to put you in a worse position so they have more leeway to charge you?
Shannon: No; I think every county, every jurisdiction handles it differently. Some counties go ahead and charge reckless driving if the officer thinks there is enough probable cause. They may agree later to either set over; send it, upon entry, into diversion; or agree upon some other resolution of the case.
There are counties that do that. They just stack it. Even if they do not really have good evidence, they just move forward with it. I really cannot tell you why that is. Meanwhile, other counties add reckless driving, I think, to encourage diversion. Like I said, every county is different. There are a number of different reasons they do it.
Interviewer: How do charges stacked on to DUIIs affect your ability to defend people? What is the result?
Shannon: I think it requires more work. There are definitely additional steps you need to take when dealing with accompanying misdemeanors with a DUII. It is just one more charge you need to work towards to either get some sort of set-over; dismissal; or other resolution where charges will not appear on the person’s record in the long run.
I have had situations where there really was not strong evidence of reckless driving. Still, it was just the policy of the district attorney to go ahead and charge reckless driving. Such a charge can accompany driving under the influence of intoxicants; even if the officer did not charge it initially.
In one case, the person did not have any history. We entered diversion on the DUII. Still, the state wanted to take the reckless driving to trial. Like I said before, it is not a lesser included offense, so they can go ahead and take that to trial.
The chances of them proving a reckless mindset is very difficult. Reckless driving means you exhibited really bad, egregious driving. For example, you ran into property or you nearly hit somebody. If you do not do that, the state is not going to win.
There have been situations where I have been successful trying, if need be, the reckless driving. I have succeeded getting an acquittal on reckless driving. Then, the person is in diversion for the DUII. You try to get some type of resolution.
It is rare that the only thing you can do is have somebody plead guilty to reckless driving for it to go away. It does happen; but that is pretty rare. Again, that is usually in those really bad driving circumstances where it is dangerous; really dangerous.
Interviewer: What are the penalties for reckless driving?
Shannon: It is the same thing as a class A misdemeanor. It is up to a year in jail and $6,250 in fines. Most likely though, you are facing some sort of fine and relatively little to no jail time.
I have seen people whom the district attorney asked for four days jail, or 48 hours of jail. I have also seen them offer community service in lieu of the jail time. Most likely, if you plead guilty most of the time to reckless driving, you are looking at a fine and a license suspension of 90 days.
Interviewer: Reckless driving does not necessarily need to make a DUII worse. Still, does conviction worsen your situation by adding penalties similar to license suspension fines and jail time?
Shannon: Reckless driving does make the situation worse; especially if it is your first time. With a first time DUII, you are diversion eligible. Reckless driving can be really damaging to offering diversion to somebody in a situation involving driving under the influence.
The defendant needs diversion to not end up with anything on their record. Now, with reckless driving you end up with something on your record, anyway. It kind of defeats the purpose.
I like to work, as much as I can, to try to resolve it with the district attorney; through some negotiation or set-over deal. In this way, if the person completes the diversion successfully, the district attorney will agree to dismiss the reckless driving at the same time as the DUII.
Interviewer: You said reckless driving is pretty defensible. Is it a burden for the state to prove the driver was in a reckless state of mind?
Shannon: It is, unless, for example, the person is driving up on the sidewalk and hitting people. Suppose the driver is swerving within their lane or failed to come to a complete stop at a stop sign; and nobody else is around. Then, it is pretty difficult to show that risk is of such nature and degree that it is a gross deviation.
It has to be something where it is a gross deviation from what a reasonable person would do. That is difficult for the state to prove.
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