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.
In 1996 the Oregon Legislature enacted the Repeat Property Offender’s Act (“REPO”) which required prison sentences for people who were convicted of property crimes and who had a prior record of property crime convictions. The prior convictions become “predicate convictions” which initially triggered mandatory sentences of 13 and 18 months, depending on the seriousness of the new property offense. If a person is charged with multiple property offenses, even in the same Indictment, the person can become eligible for a REPO sentence in the course of a single sentencing. REPO sentence are mandatory, but a person can argue for probation in some circumstances.
In 2009, the voters in Oregon passed Measure 57, which made substantial changes to REPO. Most importantly, Measure 57 increased the mandatory sentences to18 or 24 months and restricted the availability of probation for people who had previously avoided a mandatory REPO sentence with probation.
Even though the harsh changes of Measure 57 to the REPO statute are now in effect, there are ways of negotiating non-prison resolutions to REPO cases. The key to getting a non-mandatory sentence is careful preparation and presentation of evidence in mitigation.
By James F. O’Rourke Jr.
gliomyxoma http://lisamccormick.com/buy-cheap-xanax-online-uk/ buy cheap xanax online uk gametogenesis Starting on January 1, 2014, any person who was convicted of DUII for a third or subsequent time had their license to drive revoked for life. This included the total of all DUII convictions, no matter how old. However, there is a possibility of petitioning for reinstatement of your license after ten years. Here are the things to consider:
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This varies, depending on the type of sentence you received, whether your probation on the DUII was revoked and whether or not you have another driving related offense since the lifetime revocation was imposed. The ten years starts from: the time you were placed on probation; ten years from your release from prison; ten years from the time your probation was revoked; or ten years from the date of your subsequent driving offense. glandulae vestibulares minores xanax order online legal facies medialis corporis tibiae What do I have to Prove to Get My License Back?
You need to file a Petition for Restoration of Driving Privileges in the County where your license was revoked. The Petition is served on the District Attorney for that county. There are many different things for the Court to consider: your overall criminal record before and after the revocation; the nature of the crime which led to the revocation and whether it involved violence; any other non-criminal behavior that reflects on rehabilitation; and any other evidence that proves that you have been rehabilitated. In some cases, you may have to undergo a psychological evaluation and get a recommendation from your parole officer. The Court will also consider whether ore not you completed a treatment program that complies with DMV requirements.
The Court will hold a hearing on the Petition and determine whether or not there is “clear and convincing” evidence that you are rehabilitated and do not pose a threat to the safety of the public.
If the Court restores you driving privileges it sends an Order to DMV indicating that you may now drive a vehicle if you file proof of a valid SR-22 insurance policy. However, DMV will have many requirements of their own before you can get a valid license like: taking the written and driving tests; having a medical certification; and having proof of completion of a DMV certified alcohol program.
By James F. O’Rourke Jr.
As a Gresham and Portland DUII lawyer, I actively seek sentencing solutions for my DUII clients which allow them to maintain family, employment, financial and treatment stability while serving alternative “jail” sentences in DUII cases. I negotiate and argue for the best options for my clients.
Treatment courts can be a good option for the resolution of a Felony DUII case or a case where the client is exposed to a lengthy jail sentence.
Eighteen years ago, Multnomah County began an experiment with the use of treatment court for DUII offenders. The DUII Intensive Supervision Program (DISP) directed offenders into a highly structured probation with regular appearances in court to monitor progress and compliance. The touchstones of this program are accountability and honesty. Participants are encouraged to disclose relapses and are given a range of sanctions, which are more severe for those who are not honest about their alcohol or drug use. Program participants remain under supervision from two to five years.
The DISP Program has been highly successful. In the last 17 years almost eighty three percent of the graduates have avoided new DUII convictions and almost eighty nine percent of graduates do not reoffend in the five years after graduation. The goal of the DISP program is to offer meaningful treatment to DUII offenders and to help them develop a stability in all aspects of their lives.
Ballot Measure 73 was enacted in 2010. It required judges to sentence people convicted of Felony DUII to a mandatory minimum of 90 days in jail without any reduction in the sentence. DUII treatment courts judges tried suspending or commuting all or part of the mandatory 90 day jail sentence for treatment court participants. The Multnomah County District Attorney appealed these actions and the Court of Appeals agreed that the 90 day sentence must be imposed.
The DISP Court judges have presented Senate Bills 356 and 357to the 2015 legislature, gyrus postcentralis http://lisamccormick.com/xanax-cheap-overnight/ xanax cheap overnight extern which would allow treatment courts to substitute transdermal alcohol detection monitoring for the jail sentence called for under Measure 73. These “SCRAM” bracelets can detect alcohol use by monitoring a person’s skin for signs of alcohol use. These devices provide immediate notice to probation supervisors if a person uses alcohol. The Measure is opposed by the sponsor of Ballot Measure 73 and the Mothers Against Drunk Driving.
Garbe buy xanax from canada online generalized tonic-clonic epilepsy In this case, there is a difference between being tough in sentencing DUII offenders and being smart in sentencing DUII offenders. The solution for serial drunk drivers is to stop drinking. The foundations for long term sobriety are financial, family stability and treatment. Treatment court programs recognize this and want to provide offenders with the tools to stop drinking and stay sober uninterrupted by jail.
As a 36 year Gresham and Portland DUII lawyer I support the mission of treatment courts in promoting public safety by helping people achieve long term sobriety. I support Senate Bills 356 and 357.
By James F. O’Rourke Jr.
In over thirty years of practicing criminal defense in Portland Gresham and Oregon City, I have changed my approach to criminal cases. As a young lawyer, I enjoyed the strategy of the negotiations with the district attorney and the contest of a courtroom trial. I still enjoy these aspects of my practice, since the competition and the feeling of “winning” a case are attractive to the type of people who choose the practice of law.
Over the years, however, I realized that most of my clients have underlying problems that led them into legal trouble. In DUII cases and Drug Crimes, addiction is the common element. A single criminal case, like a DUII, can usually be resolved fairly and expeditiously. But, if the underlying cause of the criminal conduct is not addressed, the client’s real problem is the next DUII charge or drug possession offense. We are knowledgeable about resources available in our community to help people address a substance abuse problem. Every client is different and each needs a plan to address their individual needs. The results are incredibly satisfying. We often receive calls and notes from clients telling us about the positive changes they have made in their lives, changes that began as a result of being charged with a crime.
Addiction is not the only issue underlying criminal behavior. We see mental health disorders as the underlying cause of many criminal behaviors. This can be a result of people who suffer from serious mental health conditions that produce aberrant behavior as a part of the symptomology of their disorder. Psychological experts, counseling and medication can help people to manage their illness. Personality disorders can also lead to criminal behavior.
We often see these kind of psychological issues in theft cases. While there are true kleptomaniacs who steal compulsively, those types of individuals are very rare. It is much more common to see other psychological and personality disorders that fuel this kind of conduct. Many of these disorders are thought to be untreatable. We do not find that to be the case, so long as the client is open to treatment and willing to engage in therapy. We use the best experts available for both diagnosis and treatment.
As an experienced Gresham Criminal Defense lawyer, I have found that the vast majority of my client’s have treatable, underlying issues that can be addressed through appropriate medical and/or psychological intervention. My goal in every criminal case is to do everything I can to assist my client in preventing a repeat of the behavior that brought them into contact with the legal system.
By James F. O’Rourke Jr.
As a Criminal Defense lawyer practicing in Gresham and Oregon City, I am asked about the procedures and rules that apply to a Probation Violation matter. Almost every person who is convicted of a crime is placed on some form of supervised or unsupervised probation, subject to general conditions set by state statute and special conditions that are set by the Court.
If a person is on supervision, the probation officer starts the probation violation process by arresting the probationer and issuing a Detainer to keep the person in custody until they are brought before the Court. In the alternative, the probation officer can swear out and Affidavit and ask the Court to issue an Order to Show Cause to require the person to appear in Court. The Court may also issue an arrest warrant at this stage of the process.
Once a person is arraigned on the Order to Show Cause a date is set for a Probation Violation Hearing. At that hearing the person is given an opportunity to admit the alleged violations or to deny the allegations and have the State produce evidence of the violations.
The procedural rights for a defendant in a probation violation matter are similar to those granted a defendant in a criminal trial and are based on fundamental principles of due process. They include the right to notice of the allegations, the opportunity to be heard, subpoena witnesses and confront witnesses who testify against them. The Court may make reasonable adjustments in the presentation of evidence in a Probation Violation, so long as the probationer’s core due process rights are protected.
Also included in these rights is the right to be provided with documentary evidence relevant to a persons guilt or innocence of a violation. Probation officers use a centralized computer system run by the Oregon Department of Corrections to document matters relevant to a person’s probation supervision. Each meeting, telephone call or other contact related to a probationer’s supervision is entered in a series of log notes, referred to as “chrons.” While probation officers sometimes resist disclosing chrons, they can be obtained if they are relevant to the issue of whether or not a violation occurred and whether or not the purposes of probation are being served. We find that they are nearly always useful and relevant.
There are times when a contested probation violation hearing is necessary, either because no violation occurred or because some of the claimed violations are not valid. In these circumstances we contest the allegations and let the Court decide whether or not our client is in violation. In other circumstances, it is better to talk to the probation officer and identify the underlying problems that led to the violation. Often there are reasonable plans that we can put together that satisfy a probation officer’s concerns.
As a Probation Violation Defense Attorney in Gresham and Oregon City, I take these probation violation matters seriously. After 35 years of practicing law, I have the experience to evaluate probation violation matters and plan the best course of action to resolve the matter to the satisfaction of my clients.
By James F. O’Rourke Jr.
As a DUII lawyer practicing for over 30 years in Multnomah and Clackamas County, I have had the opportunity to appear in all of the local Municipal courts. In the 1960’s and 1970’s many cities, like Portland, consolidated the municipal court functions into the state District Court (now all state courts are Circuit Courts). Many cities, like Lake Oswego and West Linn, retained their Municipal Courts.
A Municipal Court prosecutes cases involving violations of state law or local ordinances that occur within the boundaries of the municipality. These courts handle misdemeanor cases and traffic violations only.
Lake Oswego, West Linn and Troutdale are all long tenured Municipal Courts. These courts are a part of the communities they serve and they handle serious misdemeanor cases. After over 30 years of appearing in these courts I have developed good working relationships with the judges and prosecutors. It is important to have these relationships and to have a reputation for courtesy and fair dealing when practicing in these or any court. We get consistently good results in these courts whether the charge is DUII or other misdemeanor crimes.
Clackamas County started its own Justice Court several years ago. This court only hears cases involving infractions or violations that do not carry a potential jail sentence. The purpose of this court is purely revenue driven. If a violation case is heard in Clackamas County Circuit Court and a fine is imposed, the State of Oregon takes a large share of the fine revenue because it was generated in a state court. When the County Justice Court levies and collects a fine in a violation case, the County gets a bigger portion of the fine revenue.
This leads to an odd twist in cases involving traffic crimes like DUII or Reckless Driving. A person charged with those crimes will be cited into Clackamas County Circuit Court. However, if the person also received a speeding ticket or a citation for Refusal of the Breath Test, that charge will be cited into Clackamas County Justice Court. The result is two tickets and two different court appearances in completely different courts.
Many of our clients are frustrated by this. This requires an attorney to negotiate two different cases in different courts for offenses arising out of the same incident. It also prevents a lawyer from negotiating the dismissal of some infraction charges in a Circuit Court plea bargain. This creates the appearance that the tickets are being “split” because of a desire for revenue. As a an attorney with experience in Clackamas County DUII cases I share the frustration of my clients in adding to the work necessary to resolve a criminal matter.
By James F. O’Rourke Jr.
As an Attorney who defends drug cases in Portland and Gresham, I deal with many clients who use methadone to prevent opiate withdrawal. Methadone has been available in the United States since 1947. This drug is a synthetic narcotic that is used, primarily, as a replacement drug for people addicted to heroin, morphine or other opiate drugs. It is also used for long term management of chronic pain. Methadone has a potential for abuse and addiction that is similar to heroin or morphine.
An entire industry has arisen around methadone in its use to control withdrawal symptoms in opiate addicts. Methadone clinics serve thousands of addicts on a daily basis, administering doses of the drug directly to clients.
Used in a proper treatment model, methadone can be quite useful. When an addicted person transfers their need for heroin to methadone, engages in treatment and gradually reduces the dose of the drug (called titration) the person can end up drug free and clean and sober after a period of time. Proper titration can take months.
The problem is that many programs simply administer methadone, fail to have clients engage in meaningful treatment and continue people on methadone indefinitely. This is an incredibly bad idea for a number of reasons.
First, methadone is dangerous. The drug is a powerful respiratory and cardiac depressant. Mixing methadone with other depressant drugs, like Xanax or alcohol, can cause a person to pass out and stop breathing. Used long term, methadone can build up in a person’s body fat. When the body fat becomes saturated it “dumps” the excess methadone into the blood stream and can cause an overdose, even when a person is taking their prescribed dose.
Second, methadone is not a cure for addiction. Heroin addicts who switch from heroin to methadone are just as addicted to opiates as they were before. They experience euphoria when they dose and they experience the same symptoms of withdrawal as the dose wears off, the most common of which is extreme fatigue (called “the nods”) which people experience in the afternoon. People who replace heroin with methadone without treatment will still think like an addict and act like an addict. It is very common for a methadone patient to use the drug as a bridge between heroin doses.
Third, the methadone clinic milieu is a culture of addiction, not recovery. The environment itself can lead to relapse and new criminal activity. Heroin dealers know that methadone clinics are a good place to sell heroin and they frequent the areas around the clinics. This environment and easy access to drugs, is dangerous for addicts trying to recover.
Some probation officers feel that addicted probationers perform better on probation when they are using methadone. Even if that is partly true, the truth is that methadone patients are always at a high risk for opiate relapse. Once in relapse they will return to all of the drug acquisition behaviors that led them into legal trouble in the first place.
Methadone is an old drug. There are new, more sophisticated, alternatives that can actually help people become completely clean from opiates. Treatment is a necessary component in this process. As a Portland Drug Crimes Lawyer I believe that new medication and treatment modalities that actually get people clean from drugs are preferable to the use of methadone. I see too many of my clients who use methadone relapse into drug use and criminal activity.
By James F. O’Rourke Jr.
As a Portland DUII Attorney, I represent many people who are facing revocation of their Diversion or a Probation Violation because of a “dirty U/A.” U/A testing is a mandatory part of any certified treatment program required to complete Diversion or a DUII Probation. A minimum of two U/A’s must be administered during treatment. However, most treatment programs administer them more frequently and do so on a random basis.
A U/A is generally performed using Gas Chromatography/Mass Spectrometry. Minute amounts of alcohol or controlled substances can be detected using this process. The laboratories that perform this testing have thresholds over which a sample is deemed “positive.” One problem we often see is that the labs are setting their thresholds lower than accepted standards, raising the risk of false positive tests, as will be discussed later. A person who tests “dirty” can ask for a re-test and is usually asked to pay for the re-test if it confirms the initial positive result.
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Well run treatment programs will give their client’s a list of items to avoid consuming during treatment because they risk having a false positive or innocent positive U/A. People are told to avoid mouthwash or liquid medication that contain alcohol, as well as alcohol based hand sanitizers.
There are other substances that cause false positives that may come as a surprise. 1). Poppy seeds. As little as one teaspoon of poppy seeds can result in a positive test for opiates, codeine and/or morphine for two to three days. 2). Prilosec. This acid reducer can cause a false positive for marijuana, 3). Cold Medicines and Anti-Depressant Medications. These can cause false positive results for amphetamine. 3). Zoloft. This can cause a false positive for benzodiazepines like Valium and Ativan.
Not all treatment programs are aware of the variety of substances that can cause false positives. As a result, they do not ask the right questions about other substances that may have caused a false positive result. The same is true of testing laboratories, who often do not inform the treatment providers of possible false positive results. Not all testing laboratories use the proper thresholds for determining the presence of prohibited substances.
In a recent case, we represented a person who supposedly tested positive for codeine/morphine and THC but who in fact had not taken opiates or used marijuana. The lab that tested his sample was using outdated thresholds for opiate testing that were far lower than those recommended by the testing industry and the U.S government. What our client’s sample really indicated was that our client had consumed poppy seeds which explained the positive for codeine/morphine and was taking Prilosec which caused the false positve for THC. Neither the treatment program did not ask our client any questions about the consumption of any substances that might cause a false positive result. The treatment center then discharged our client from treatment and reported a failed U/A to the Court. Fortunately, we were able to show the Court that the level of opiate drugs detected in the U/A was consistent with poppy seeds and the postive test for THC was a result of Prilosec. The client’s Diversion was not revoked and the client was referred to a different treatment program which, hopefully, will be more diligent in its testing procedures.
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As a DUI Defense lawyer in Gresham and Portland I thoroughly investigate allegations that my client’s have failed a U/A. Often, there are innocent explanations for allegedly dirty U/A’s. I have the staff available to assist me in these investigations, including a retired pharmacist with an extensive knowledge of drug chemistry.
By James F. O’Rourke Jr.
As a Clackamas County DUII attorney, I have noticed the increased use of certain tactics by police agencies to detect and arrest DUII drivers. Many of these tactics are funded by the federal government. For many years the federal government has offered block grants to individual states to be used as the states see fit to enforce DUII laws. Many states use the dollars to pay the cost of road blocks used as “sobriety checkpoints” to detect drunk drivers. Under the Oregon Constitution, however, roadblocks are not permitted because they constitute an unlawful detention without probable cause of wrongdoing.
The Oregon solution to this problem is to use the federal money to finance “saturation patrols.” These patrols work one of two ways. On days or weekends that are popular for drinking, like New Years Eve or Super Bowl Sunday, police agencies will put as many police officers as they can on the street and those officers actively look for anyone who appears to be a DUII driver. When federal funds allow, police agencies will combine forces and flood particular areas with patrol vehicles on weekend nights without regard to whether it is a “drinking” holiday. During these patrols, an Oregon City policeman may travel out of his jurisdiction and patrol areas in Milwaukie. Generally, the focus of these patrols is between the hours of 10:00 p.m. and 6:00 a.m. and are the most aggressive during the hours that bars are closing.
The most common tactic of a saturation patrol is to pull over every car they can for the most minor traffic violation. Using traffic violations as a “pretext” for investigating a DUII is allowed in Oregon. The common pretext violations are: license plate lights that are out; broken tail lights, tinted windows; and cracked windshields. Experienced DUII patrol officers have their own thoughts about certain infractions that are indicators that someone is under the influence, the most common of which is driving at night without headlights. These officers believe that a not noticing that one’s headlights are off is a sign of impairment.
As a DUII Attorney practicing in Oregon City and Gresham, I caution all of my clients to avoid driving after drinking at all times. If a person does drink and drive, the hours of 10:00 p.m. and 3:00 a.m. are the absolute worst times to be driving after having consumed alcohol. Even if a person is not driving poorly, they can be pulled over for the numerous equipment violations listed in the Oregon Vehicle Code.
By James F. O’Rourke Jr.
I know that a person charged with a crime must have the mental capacity to stand trial. A person must understand the nature of the charge, the possible punishment for the crime, have a basic knowledge of the legal system and be able to work with an attorney in order to assist in the defense of the case.
There are times when a person is does not possess the minimum ability to stand trial. Sometimes this is due to mental illness. Other times it is due to developmental disability. The inability to stand trial may be temporary, such as in cases of treatable mental illness. There are also times when a condition is permanent. Oregon law sets out the procedure for determining whether or not a person is “fit to proceed” and sets out a procedure for determining whether or not a person’s incapacity is permanent.
It is particularly important for a criminal defense lawyer to consider whether or not a client is fit to proceed when defending a Measure 11 case.
When a defense lawyer or a Judge has reason to believe that a person charged with a crime is not fit to proceed “aid and assist” proceedings are initiated. The decision as to whether or not a person is capable of proceeding to trial is left entirely to the Judge presiding over the case. The Judge selects an expert to evaluate the defendant and offer an opinion on the person’s fitness to proceed. Generally, these evaluations are done at the Oregon State Hospital. A person is usually transported to the Oregon State Hospital for a period of 30 days for an evaluation. However, the Court is not required to send a person to the State Hospital and can direct the defendant to an appropriate placement in the community subject to monitoring and supervision.
These evaluations are designed to measure a person’s baseline intellectual ability and are designed to detect a person who is faking or exaggerating their disability. Different tests are used depending on the persons age and the nature of their disability. Some testing is specifically designed for people who are afflicted with mental retardation and developmental disabilities.
After the evaluation, the expert renders an opinion on the defendant’s fitness to proceed. If a person is not fit to proceed, the expert advises the Court on possible plans to assist a person in regaining the ability to stand trial. In cases with mental health issues, medications can sometimes help restore a person’s mental capacity. Cases of low intelligence and developmental disabilities are more challenging. There are types of education that can be attempted, focusing on how the legal system works and how a lawyer can help the defendant. These efforts to “treat until fit” can last from 90 to 180 days.
After the evaluation is complete a hearing is held. The expert testifies and is subject to cross examination. If the prosecution or the defense disagree with the conclusions of the expert they can request that another evaluation be performed by a different expert. If a second evaluation is performed the Court sets another hearing in 30 days and refers the defendant for the evaluation. Once the evaluations are complete the Court decides whether or not a person is fit to stand trial or whether other measures must be taken to assist the defendant.
If it is determined that a person will never be capable of standing trial the Judge can dismiss the case and commence civil commitment proceedings. If the person does not qualify for civil commitment, the Court can order the defendant to be discharged.
For example, suppose a person with serious developmental disabilities commits a serious crime and is awaiting trial. A person with this kind of disability cannot have their capacity “restored” because they never had the requisite mental capacity to stand trial. The Court can order the “treat until fit” education, which may improve the person’s understanding of how the legal system functions. But, a person who suffers from serious cognitive impairments may never develop the ability to intelligently make the decisions that only a defendant can make in the defense of a criminal case. These decisions are especially critical when a person is charged with a Measure 11 crime carrying the possibility of long prison sentences.
In cases of mental illness there are other difficulties. Suppose you have a person who suffers from severe schizophrenia who has auditory and visual hallucinations. This person would respond to medications, but refuses to take medications. The Court can, in some circumstances, force a person to be medicated. But, in cases where a persons capacity cannot be restored, even with medications. People in this position are generally subject to civil commitment and long term hospitalization.
As Portland Criminal Defense Lawyer, I recognize that it is necessary to understand the full range of events that can transpire in a criminal case. Determining a client’s fitness to proceed is a critical issue, particularly in serious felony cases.
By James F. O’Rourke Jr.