Portland Criminal Defense Attorney Blog
This is the blog for James F. O'Rourke, Jr. and Associates. In this blog we will present information, commentary and our own opinions and philosophy regarding the areas of law in which we practice. It is the purpose of this blog to be informative, helpful and thought provoking.
The dynamic interface between the individual and the government is the law.
What we mean by that is that when the government sets certain goals, it creates laws to achieve those goals.
Those laws touch the lives of the people under the jurisdiction (power) of the government.
As criminal defense lawyers, it is our job to make sure that the people we represent receive all of their rights and protections under the law. In some cases, that involves advocating for changes in the law or reinterpretation or correct application of the existing law.
As personal injury lawyers, it is our job to make sure that our clients receive all their rights under the law and to secure compensation for the people we represent for injuries and damages they suffer which are caused by the intentional, reckless or negligent acts or omissions of others.
When Tyler McNeely was stopped by a Missouri police officer he must have known that he was in big trouble. He had two prior DUII convictions and a third conviction would be a felony. The officer smelled alcohol and asked him to perform field sobriety tests. McNeely refused a portable roadside breath test. When he was arrested he told the officer that he would refuse to take a breath test at the police station. The officer transported Mr. McNeely to a hospital and, over McNeely’s objection, had a hospital lab technician draw blood. The officer did not even try to secure a warrant and instead relied on the “exigent circumstances” exception to the warrant requirement. The theory was that since alcohol dissipates from a person’s blood stream over time, there was an emergency that required immediate action in order to preserve the evidence of intoxication.
McNeely was tried and convicted in a Missouri trial court. The Missouri Supreme Court reversed his conviction, finding that the mere fact that alcohol dissipates is not enough to justify an emergency forced blood draw, particularly in an ordinary DUII.
The question raised in this case is an important one. Some state courts have determined that the mere fact that alcohol dissipates is not enough, standing alone, to establish exigent circumstances in a DUII investigation. Other states, including Oregon, have held that alcohol dissipation establishes an exigency automatically, essentially adopting an exigency per se rule.
The United States Supreme Court agreed to review McNeely’s case in order to settle the split between the states, once and for all.
The U.S. Supreme Court issued their opinion in Missouri v. McNeely on April 17, 2013. The Court noted that it had previously allowed forced blood draws without a warrant in the 1966 case of Schmerber v. California. However, Schmerber was a much different case, factually, and involved a serious DUII accident, with injuries, and it was shown in that case that it was not possible to get a warrant in time to get an accurate blood alcohol test.
In McNeely’s case, the Court soundly rejected the argument that alcohol dissipation establishes a per se exigency in a DUII investigation. The Court noted that drawing blood from a person is a highly invasive procedure. The Court was clearly troubled with the thought of granting police this authority in a routine DUII investigation. The Court held that while alcohol dissipation was one factor that could be considered in determining whether an emergency existed, there had to be other factors present. While the Court did not expressly set those factors out, the severity of the crime being investigated is undoubtedly a factor. More importantly, the Court held that the police must demonstrate that they could not have obtained a warrant in a timely manner. The Court noted that technological advances have made things like telephonic warrants possible and that type of warrant can be obtained fairly quickly. Also, most jurisdictions have a judge assigned to review warrants 24 hours a day.
This is be an important case for Oregon DUII Attorneys. This case over rules the Oregon Supreme Court which had adopted an exigency per se rule. The Portland Criminal Attorneys at James F. O’Rourke, Jr. and Associates work to protect our clients’ constitutional rights in DUII investigations.
Governor Kitzhaber and others are proposing the first significant changes to Measure 11 in over a decade. The Governor’s concern is driven mainly by projected prison costs over the next ten years and the likely need to build and staff more prisons if changes are not made to this 1995 law.
House Bill 3194 proposes a number of modifications.
First, the bill would completely eliminate mandatory minimum sentences for persons convicted of Sexual Abuse in the First Degree, Assault in the Second Degree and Robbery in the Second Degree. Persons convicted of these crimes would be sentenced under the existing sentencing guidelines and the length of a prison term would be based on a person’s prior record.
Second, the bill would end mandatory adult prosecution of 15, 16, and 17 year olds who are charged with Sexual Abuse in the First Degree, Assault in the Second Degree and Robbery in the Second Degree. Currently, juveniles accused of these crimes are automatically transferred to adult court. Ordinarily, a juvenile is entitled to a hearing in juvenile court and could contest being remanded to adult court. If passed, this bill would restore that process for juveniles accused of these crimes.
Third, juveniles who are sentenced under Measure 11 would automatically be eligible for “Second Look,” which allows juveniles to have a judge review their sentences when they have completed one half to three quarters of their sentence. If a juvenile has demonstrated good institutional behavior and has made progress with programs, the court has the authority to release the juvenile conditionally and allow them to complete their sentence on probation.
These changes are being opposed by many District Attorneys. Several District Attorneys believe that the projected expenses for the Department of Corrections over the next ten years are overstated. The supporters of House Bill 3194 believe that leaving Measure 11 unchanged will require the construction of at least one new prison and require hundreds of millions of dollars of new spending. The supporters of HB 3194 believe that the changes would allow the Department of Corrections to reduce its budget by five percent over the next ten years, rather than increase the budget.
Changing Measure 11 will be a real challenge, since any modifications of Measure 11 must be approved by a two thirds majority of both the House and the Senate.
As an Oregon Criminal Defense Attorney who represents persons charged with Measure 11 crimes, I support the changes proposed in House Bill 3194.
This is an important ruling for Oregon Drug Crimes Attorneys as it applies to searches in Oregon.
In 2006 Joelis Jardines’ Florida home was approached by two Miami-Dade police detectives. The two detectives approached the front door, but they did not knock.
Under ordinary circumstances, there is nothing unusual, or illegal, with the police entering a person’s property to approach the front door. The police are granted the same right to enter property that a peddler or a girl scout exercises when they sell their wares. In fact, the police refer to such investigatory contacts as a “knock and talk.”
The problem in Jardines case was the dog the Detectives brought with them. Their four legged friend was no ordinary animal, but a highly trained drug sniffing canine. The dog “alerted” at the front door, indicating that one of several illicit drugs was present in the home. The Detectives retreated from the porch and obtained a search warrant based on the dog’s observations. When they executed the warrant, the Detectives found growing marijuana on the premises.
The case, Florida v. Jardines, made its way to the United States Supreme Court. The case was decided on March 26, 2013.
The majority opinion was written by Justice Antonin Scalia, perhaps the most conservative person on the Supreme Court. Justice Scalia observed that the Court has long held that a person’s residence and the surrounding area are private and protected from unreasonable intrusions by the government. He noted that, while the police are allowed to approach a front door of a person’s home, they are not allowed to engage in conduct that is beyond that which a person would expect from a visitor.
Applying that concept to the conduct of these Florida Detectives, Justice Scalia held that bringing a police dog on a visit to a person’s front door goes far beyond the scope of the customary invitation one gives to those knocking on their door.
Justice Scalia stated: “[I]ntoducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that. An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker. To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to – well – call the police.”
This is a common sense ruling that firmly backs property rights.
James F. O’Rourke, Jr. is an Oregon Criminal Defense Lawyer who represents persons who have been arrested as a result of searches by drug sniffing dogs.
The Oregon Supreme Court issued two unusual rulings in a pair of cases on January 10, 2013 that were pending before the Court. State v. Davis and State v. Lumpkins were “affirmed by an equally divided court,” meaning that the original rulings were affirmed because the votes on the court were tied. This is a fairly rare occurrence and happens only when the seven member Court is short one member, creating the possibility of a tie vote.
Both Davis and Lumpkins dealt with the issue of whether or not the police could randomly run license plates from their computerized mobile data terminals to find criminal activity. These random license plate checks are a routine practice for almost all police agencies. The objective, as stated by the police, is to identify stolen vehicles, people who are driving while suspended and people who have outstanding warrants. In fact, the Portland Police and the Washington County Sheriff’s Office each have a special unit that uses license plate recognition technology. This technology allows the police to simply drive through a parking lot and run every plate automatically through DMV and the Law Enforcement Data System.
The attorneys for both Lumpkin and Davis moved to suppress all evidence gained in these stops based on random license plate checks. They advanced two arguments.
First, they argued that random license plate checks were searches that required a warrant or an exception to the warrant requirement under Article I, Section 9 of the Oregon Constitution and that these searches require probable cause or a reasonable suspicion that some violation of the law was occurring.
Second, they argued that these completely random searches violated the “privileges and immunities clause” of Article I, Section 20 of the Oregon Constitution. Both Davis and Lumpkin argued that by randomly and arbitrarily commencing a criminal investigation people were being singled out for investigation and treated differently from other members of the public. At the very least, they argued, the police should have some sort of systematic policy governing when license plates should be checked.
The ACLU filed a “friend of the court” brief. The ACLU pointed out that such practices raised grave concerns that people would be targeted by race or economic status. The police, they argued, could conduct these license plate checks simply because someone looked out of place or because their car looked like a “junker.” The ACLU argued that these checks need to be limited and controlled by some systematic policy in order to hold the police accountable if they used impermissible reasons for initiating a license plate check.
The State of Oregon argued that running a license plate is not a search and that people have no protected privacy interest in this information. Further, the State argued that there is no legal bar against a random license plate check and that there was no proof of any unequal treatment related to the random checks.
Both trial court judges in Davis and Lumpkin denied the Motions to Suppress. The Oregon Court of Appeals upheld the trial court rulings, although there was a dissenting opinion.
Because the Oregon Supreme Court could not produce a majority to affirm or reverse, the issue of the permissibility of random license plate checks remains unresolved. It may take several years for another case to rise from the trial court to the Supreme Court on appeal.
Until then, this issue will come up in Drug cases, DUII cases and all criminal cases which are based on a random license plate check.
As Portland criminal defense lawyers, we deal with many cases where the constitutionality of a traffic stop can be a critical issue. This is particularly true in cases involving drug charges and DUII. Mr. O’Rourke has been a Portland Oregon drug crimes defense lawyer since 1978.
Prior to 2011 active duty military personnel, who were charged with DUII were forced to make a hard choice between two unpleasant options.
Many military service members had active duty commitments which prevented them from completing the DUII Diversion Program in the twelve to eighteen months allowed by Oregon Law. See ORS 813.230. This was particularly true for reservists getting called up to active duty and all active duty personnel scheduled for deployment.
They had to choose between entering the DUI Diversion Program to avoid conviction and thereby give up eligibility for deployment, which, most often ends a military career or to give up the right to DUII Diversion and plead guilty and take a criminal conviction with all its consequences including a permanent criminal record.
Most of us who work in the criminal justice system were unhappy that military personnel were in effect being punished more severely than civilians because they were performing a service commitment to our country.
In 2011, Veteran Advocates lobbied the Oregon Legislature to support a bill designed to address this problem. The Legislature responded by enacting into law a bill which modified the laws relating to DUI Diversion to allow the courts to accommodate the needs of active duty military personnel so that they could participate in DUII Diversion.
First, the legislature changed the law to forbid courts from denying entry into the DUII Diversion program simply because the person’s active duty military obligations prevented them from completing the program on the standard Diversion time line. Courts are now authorized to expand the time to complete Diversion for as long as necessary to accommodate active duty service obligations. In addition, the courts are authorized to allow military personnel to complete military treatment programs to satisfy the Diversion treatment requirements.
As an Oregon DUII lawyer, we at James F. O’Rourke, Jr. and Associates have experience representing members of the U.S. Military in DUII and other criminal matters. We understand that criminal cases have serious implications for service members and we strive to minimize or eliminate the impact of a criminal case on a service members career.
As a Portland Criminal Defense Attorney, Mr. O’Rourke has helped a number of military personnel through the Oregon criminal justice system on all kinds of charges to get results which allowed them to continue their careers.
We have helped many veterans returning from overseas duty deal with criminal problems in Oregon. Often, there is a connection between their active duty experiences and criminal conduct. We have represented many veterans who suffer from PTSD.
In 2011 the Oregon Legislature amended ORS 813.602(2) as follows:
“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.”
This law change requires a judge to order persons in DUII Diversion to have an ignition interlock device in any vehicle they drive. However, the legislature did not give courts the authority to waive that requirement for people who drive their employer’s vehicles. Thus, every person in Oregon DUI Diversion who drives an employer’s vehicle must install an ignition interlock device in their employer’s vehicle. This creates obvious problems, since employers do not want to pay the expense of installing and renting such devices. People in DUI Diversion are often faced with the choice of violating their DUII Diversion agreement by driving a vehicle without an approved ignition interlock device or losing their jobs.
The Legislature needs to act now to fix this unintended problem. They can do this one of two ways.
First, they could simply authorize a judge to exempt employer owned vehicles from this DUII Diversion requirement. This would place a burden on courts to evaluate each case and determine whether or not an employer exception is appropriate in a given case.
Second, the Legislature could do what it should have done in the first place: have DMV administer this requirement. Ignition interlock devices have been required for persons convicted of Oregon DUI for decades. DMV has administered that program quite well and has a process in place for a person to apply for an employer-owner vehicle exemption. It makes sense to have DMV run this program because it is an agency with policies already in place.
I expect a bill to fix this problem will be submitted when the legislature reconvenes in January of 2013. As a DUI Defense lawyer Portland, Oregon City and Beaverton, I represent many people who enter DUII Diversion each year. It is my hope that this law is changed early in the legislative session and made effective immediately.
Simply asserting your right to remain silent and right to counsel will not stop the police from trying to get you to admit to crimes. These admissions can be used in court. The only way to protect yourself is to speak only to your lawyer about your case. A lawyer can only protect your rights if you do not speak to other people about your case.
The Oregon Supreme Court has decided that the Oregon Constitution’s protections do not protect a defendant from police questioning outside the presence of his attorney before arrest or outside compelling circumstances.
In State v. Davis (2011), the Defendant was under investigation for sexual abuse. He retained an Oregon Criminal attorney and that lawyer sent the police a letter on Mr. Davis’ behalf advising law enforcement that Mr. Davis was represented and should not be questioned outside the presence of the lawyer. Eight months after this correspondence, the detective working on the case learned that Mr. Davis was contacting the alleged victim through an instant messaging program. The detective had the alleged victim come into his office and he instructed her on what to type to elicit incriminating responses from Mr. Davis. Based on the incriminating responses obtained through those “pretext chats,” the police obtained a search warrant and gathered enough evidence to charge Mr. Davis with a crime.
The Oregon Supreme court held that despite the invocation of counsel, Mr. Davis was not protected from this police action by the Oregon Constitution. Under Article 1, Section 11, the guarantee of the right to counsel only applies in criminal prosecutions. Using textual, historical and case law analysis, the Court decided that the criminal prosecution had not yet been initiated as Mr. Davis had not yet been arrested or charged. Using a similar analysis under Article 1, Section 12 of the Oregon Constitution, the Court found that despite Mr. Davis’ invocation of his right to remain silent without the assistance of his attorney, he was not compelled to make incriminating statements because the circumstances of the pretext chats were not compelling. He was not in custody, nor were any threats or promises used to compel him to incriminate himself. The detective used sneaky investigation techniques and Mr. Davis was fooled into making incriminating statements. By it’s very nature, the pretextual contact with police was not compelling because Davis did not know he was talking to anyone but the alleged victim and she wasn’t threatening him.
What does this mean for the accused in Oregon? We tell our clients not to talk about their case to anyone but their Oregon Criminal Defense lawyer. We say: let your lawyer do the talking with the police.
State v. Potter: If you already have an Oregon criminal defense attorney on one case and the police come to talk to you about another case, we recommend our clients assert your right to counsel and do not talk to them unless your attorney tells you to talk to them. We warn our clients, if you do talk about the new case that is not connected to your original case, your right to counsel will not apply and your statements can not be excluded from evidence on the basis that you were denied your right to counsel.
If you are in custody, pending charges, and are represented by an attorney on one case, the police may try to talk to you about other cases without your lawyer present. Unless those cases are similar and connected to your current charges, the right to counsel may not protect you.
The Oregon Court of Appeals decided in State v. Potter (2011), that when police questioned a man in custody on Identity Theft charges about related Identity Theft charges, the questioning was an interrogation and violated Mr. Potter’s right to counsel under Article 1, Section 11 of the Oregon Constitution. Mr. Potter was involved with a group of people cashing fraudulent checks. He was arrested by one detective and jailed. He was appointed a Portland criminal defense attorney who was representing him on those charges. While he was in jail, a second detective began investigating Mr. Potter for some other fraudulent check cashing and talked to the first detective as well as Potter’s wife before seizing Potter’s computer hard-drive and finally interrogating Potter himself. The question the Court addressed was whether the two cases were related enough that the right to counsel on the first case protected Mr. Potter from interrogation in the second case.
The Court indicated that the proper inquiry was not whether the cases were “inextricably intertwined” but rather whether the cases were “factually unrelated.” If they were unrelated, then the questioning by the detective was constitutionally allowed. By means of example the Court described a case where the defendant was arrested for Oregon DUII and driving a stolen car. When officers questioned the defendant about the burglary from which the car was stolen and other burglaries, that was factually related to the crimes the defendant had already been charged with and so impermissible. In Mr. Potter’s case, the Court found that the crimes were “remarkably similar.” The two detectives working collaboratively in the same geographical area were investigating overlapping evidence (Mr. Potter’s computer) and the crimes were committed close in time and place. All of those factors together meant the two crimes were factually related. Because of that, Mr. Potter was entitled to “the benefit of an attorney’s presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant.” The detective should have called Mr. Potter’s Portland Criminal Defense Lawyer and requested permission to interview Mr. Potter.
Most of the time we advise our clients not to consent to a search of their persons, homes, cars or belongings, no matter what the police say to them.
If you are arrested and the police want to search your home or belongings, you can invoke your right to counsel, but that won’t save you from evidence getting used against you if you consent to the search. Once you say you want to consult with an Oregon criminal defense attorney about the search, the police aren’t supposed to interrogate you any further but they can request and get your permission for the search. We often recommend that our clients do not give police their permission.
In State v. Hatfield (2011), the Oregon Court of Appeals addressed a situation where Mr. Hatfield was arrested on drug-related charges. He consented to a search of his car and his person but insisted that he would not consent to a search of his home. The police told Mr. Hatfield that they would simply get a search warrant to search his home. Mr. Hatfield was concerned about the well-being of his dogs and the sanctity of his home and feared the police would mistreat his pets or his belongings. He unequivocally invoked his right to a lawyer by saying he wanted to call a lawyer to ask about the search. If only he had stopped communicating with officers at that point. They offered him a chance to call an attorney and would have allowed him to take off his handcuffs to make the call. Instead, Mr. Hatfield told the police that if he would be allowed to put his dogs away and smoke a cigarette and if they would treat his belongings carefully he would consent to a search of his home. This was not a good trade for Mr. Hamilton, as the police found evidence of Unlawful Manufacture of Marijuana in his home.
The Court differentiated the request for a consent to search from an interrogation. Mr. Hatfield was entitled to have an attorney present for any further interrogation but requesting permission to search is not an interrogation so the officers were constitutionally entitled to make the request to search even after Mr. Hatfield had requested the assistance of an attorney.
Once you unequivocally invoke your right to counsel, officers are not supposed to question you about the crime. However, they are allowed to continue gathering evidence that can be used against you. You do not need to help them by consenting to a search of your body, your bags, your car or your home. The advice we give our clients is: tell the police you do not wish to speak with them, you want to talk to a Portland criminal lawyer and you do not agree to a search of your person or property.
Since 2003, Oregon Law has provided that a person convicted of DUII for a third time must have their license revoked for their lifetime. The language of this statute could be interpreted to include all DUII convictions a person has received during their entire lifetime in any state.
DUII defense lawyers argue that not all prior DUII convictions should be counted for purposes of the lifetime revocation statute.
Over the years, Oregon law has provided for different penalties for DUII. In the 1970′s and early 1980′s, a person who drove with a blood alcohol concentration of .15 or less was subject only to a fine and the offense was treated as a non-criminal infraction. Persons with a blood alcohol concentration over .15 were subject to criminal penalties.
In 1985, the Oregon Legislature’s comprehensive revision of the Vehicle Code and amended many of the traffic laws. This legislation also lowered the maximum blood alcohol concentration to .10 (and later .08) and made all DUII charges crimes.
The 2003 lifetime revocation statute provides that the revocation is triggered by previous violations of ORS 813.010, the DUII statute that was renumbered in 1985.
DUII defense lawyers raised the question of whether pre 1985 convictions should or should not count as prior convictions for purposes of the lifetime revocation statute.
In State v. Kellar, ___ Or ___ (2011)(Slip Op, February 17, 2011) the Oregon Supreme Court directly addressed the first of these questions. The Supreme Court held that criminal violations of the pre 1985 DUII statute do count toward the lifetime revocation. The Court noted that there is still an open question as to whether or not non-criminal infraction DUII convictions would count, but declined to address the question because it was not necessary for them to answer it for the purposes of the Kellar case.
Eventually, this issue will be decided by the Appellate Courts in Oregon. Until then, the issue should be raised and argued whenever the State is trying to persuade a judge to count one of these convictions and impose the lifetime revocation.
If you are facing a lifetime revocation of your driving privileges because of an older DUII infraction conviction or have a conviction in another state which might be an infraction, you would be well advised to consult a lawyer to see if the older conviction really counts in calculating whether or not you have three qualifying DUII convictions.
As Oregon DUII lawyers, we at James F. O’Rourke, Jr. And Associates carefully examine all prior DUII convictions for irregularities which may prevent the convictions from being used to revoke driving privileges for life.