Portland Criminal Defense Attorney Blog

Recent Oregon Supreme Court ruling articulates “bright line rule”

Questions about the legality of a search or a seizure can be maddeningly complex.  Very small variations in the facts can lead to wildly different results.  Most persons accused of crimes are frustrated when they ask their attorney whether a search or seizure was legal and the attorney answers “maybe, it depends on how the evidence unfolds at the hearing.”

However, every so often Oregon Appellate Courts articulate a rule that is so clear that it becomes known as a “bright line rule.”  The result is a statement of the law that is so clear and unequivocal that everyone including Oregon Criminal Defense Lawyers, prosecutors, judges and the police, understand the rule.

Such is the case with the recent Oregon Supreme Court ruling in State v. Rodgers and State v. Kirkeby, two cases that were consolidated for argument and decided together.  The question in both cases was whether a police officer performing a routine traffic stop can stray from writing a ticket and ask questions about the presence of drugs or weapons, or even ask for permission to search a persons car, based only on a hunch that the driver is involved in criminal activity.

The answer, according to the Rodgers/Kirkeby case, is an emphatic “no.”

The Oregon Supreme Court ruled that a police officer conducting a traffic stop must have a “reasonable suspicion” of criminal activity or the presence of weapons before he can begin asking questions about drugs or weapons or ask for consent to search.  Under Oregon law, a “reasonable suspicion” is a suspicion by a police officer, based on specific facts, that a reasonable person would agree gives the officer a reason to make an inquiry unrelated to the reason for the stop.

Bright line rules are good for everyone.  They give clear legal guidance to the police so that they can conduct themselves accordingly during a traffic stop.  They also give prosecutors, defense lawyers and judges a clear standard to use to determine when the police have gone too far.

As an Oregon Criminal Defense Attorney James F. O’Rourke, Jr. Represents persons charged with crimes in Oregon courts.  He carefully reviews every case to determine whether the actions of the police conform with the standards set by the Constitution.

Oregon Legislature creates “Super DUII” Minimum Fine

The 2009 Oregon Legislature created a new mandatory minimum fine for people who have such a high blood alcohol concentration (BAC) that they are deemed “Super DUII.”  Generally, the minimum fines for DUII are based on whether or not a person has a previous DUII conviction: a first conviction draws a fine of $1,000; a second $1,500; and a third $2,000.

The Legislature has now enacted a provision that requires a $2,000 minimum fine for anyone who was arrested and had a breath test result showing a BAC (Blood Alcohol Concentration) over .15.

The thinking here is dubious at best.  As an experienced Oregon DUII Lawyer I can state from experience that enhancing penalties has little effect in deterring people from driving under the influence.  Most people have no idea what the penalties for DUII are in Oregon until they get a DUII.  Even if they do know about the large fines, we have to remember that a DUII offense is almost always the product of diminished judgment caused by drinking.  Deterrent information is not useful to people under the influence of intoxicants – alcohol.

Finally, it seems particularly misguided to tie the amount of the fine to a person’s BAC.  Most DUII drivers are unaware of the degree of their intoxication and cannot estimate their BAC based on consumption.  Since a person will be unable to tell the difference between whether they are at a BAC of .12 or .15 it seems unfair to treat them differently in terms of a fine.

James F. O’Rourke is an experienced Portland DUII Lawyer.

Polygraphs can be used in certain Oregon court proceedings

Contrary to popular belief, polygraph examination can be used in certain court proceedings.

Since 1984, when the Oregon Supreme Court decided State v. Brown, court’s in Oregon have been forbidden from allowing the admission of a polygraph test, even if the parties agree to admit the results into evidence, in the course of a civil or criminal trial.   But, not every proceeding is a trial.

Polygraphs are routinely used by the courts to determine compliance with conditions of probation.  Convicted sex offenders are often asked to confirm that they have not viewed pornography or had unauthorized contact with minors by the administration of a polygraph examination.  Many probations for persons on intensive supervision for DUII require the probationer to confirm abstinence from alcohol and drugs by polygraph.  Morever, since the Court of Appeals ruled in State v. Hammond that a judge can use a failed polygraph to find a person in violation his or her their probation, a judge can also use a passed polygraph to find a person not guilty of being in violation of his or her probation.

Recently, the Oregon Court of Appeals determined that polygraph results can be admitted in the course of hearing conducted under the Administrative Procedures Act (APA).  In Waisanen v. Clatskanie School District, the Court dealt with a teacher who appealed his dismissal for having sexual contact with student some 30 years previously.  The former student came forward, reported the incidents and passed a polygraph.  The polygraph results were admitted at the teachers termination hearing and the appeal of his termination.  The Court of Appeals noted that under the APA evidence that “prudent people rely on in their serious affairs” is admissible.  A passed polygraph, in these circumstances, met that standard of admissibility.

Mr. O’Rourke’s experience as an Oregon Criminal Defense Attorney is that polygraph examinations can be useful in defending clients in criminal prosecutions.  A polygraph result may not be admissible at trial, but a passed polygraph, conducted by a well trained polygrapher, can do much to influence a District Attorney’s decision to bring charges or not.  We have also had success using polygraph results in defending our client’s in probation violation proceedings, as well as in sentencing hearings criminal charges.

Marijuana to Be Reclassified in Oregon

Marijuana Will Be Reclassified in Oregon From a Schedule 1 Drug to a Lower Classification

In 1970, the Unites States Congress passed the Comprehensive Drug Abuse Prevention and Control Act which completely revamped the way that drugs were controlled in the United States.  One of the major features of the act was to place both prescription and illicit drugs into one of five “schedules” which determined the severity of punishments for unlawful possession, delivery or manufacture of these drugs.  The primary criteria for scheduling drugs was to rank them based on their accepted medical usefulness and their potential for abuse and addiction.  Schedule 1 drugs have no recognized medical use and severe potential for abuse and addiction and Schedule 5 drugs have recognized medical uses.

There was some measure of hysteria at the time drugs were placed in the schedules.  Many in the political establishment saw marijuana as an extremely dangerous drug.  As a result marijuana was placed in Schedule 1 based on a conclusion that it had a high potential for abuse, had no accepted medical use and could not be used safely even under medical supervision.  Essentially, the federal government treats marijuana the same as heroin.  The states, by and large, adopted the federal schedules in setting the severity of penalties under the laws of the individual states.

With a growing number of states legalizing marijuana for medical use the Schedule 1 classification for marijuana has created an anomaly.  Under the Oregon Medical Marijuana Act, Oregon voters have expressly recognized that marijuana does have medicinal uses and can be used safely.  Yet, Oregon law still punishes illegal manufacture, delivery and possession of marijuana as though it were a Schedule 1 drug with no medical use and a high abuse potential.

In 2009 the Oregon Legislature passed a new law directing the Oregon State Board of Pharmacy to hold hearings and reschedule marijuana in accord with the current knowledge of its medical usefulness and its true potential for abuse.  In the same law the legislature also order the Board of Pharmacy to classify methamphetamine as a Schedule 1 drug.

In May of 2010, the Board accepted public comments and took testimony to gather information on the appropriate schedule for marijuana.  The Board will likely issue their decision in June of 2010.  If the Board places marijuana in Schedule 3 or lower, it could force changes in the criminal code and lower the penalties for manufacture or delivery of marijuana to the misdemeanor level.

The ultimate changes will have to be made by the legislature when they meet in 2011, since the specific laws setting the penalties for marijuana drug crimes will remain in place until changed by legislative act.

It does seem certain that the Schedule 1 designation for marijuana will soon be a thing of the past.  With better information and less hysteria the Board will be better able to make a rational assessment of marijuana’s uses and abuse potential.

As an Oregon Drug Crimes Lawyer, Mr. O’Rourke represents persons facing drug charges.  Mr. O’Rourke has been a Portland Drug Crimes Attorney since 1978.

Supreme Court takes next step in deciding how much protection gun owners have from regulation of their right to bear arms under the Second Amendment

This term, the United States Supreme Court will take the next step in deciding how much protection gun owners have from regulation of their right to bear arms under the Second Amendment. The issue this term is the constitutionality of the gun regulations of the City of Chicago.

The City of Chicago requires the registration of all firearms kept by citizens within the city boundaries. Moreover, the City requires that the registration be renewed, with payment of a fee, every year. Basically all of the applications for registration of a handgun are denied. If a person fails to register a firearm, or fails to renew a registration, the firearm is deemed “unregisterable” and illegal, even if the firearm is transferred to another person.

There is no question that this law violates the Second Amendment, under the analysis set out by the United States Supreme Court in District of Columbia v. Heller, where the Court struck down a similar outright ban on handgun ownership. But the question is whether the Second Amendment applies to regulations by states?

That is the question that the United State’s Supreme Court will answer this term in McDonald v. City of Chicago. In that case, Mr. McDonald applied to register a handgun, which was denied. He appealed. Mr. McDonald’s appeal was joined with several other appeals from other individuals, some of whom had tried to register handguns, and others who had tried to register firearms deemed “unregisterable.” The case was advanced and argued by the National Rifle Association.

As a technical matter of constitutional law, the question is whether the right guaranteed by the Second Amendment applies to the states through the Fourteenth Amendment as are other important rights, such as freedom of speech and the right to a jury trial. Under the Fourteenth Amendment, other rights have been deemed to be so “rooted in our traditions and our conscience” that they become fundamental rights which cannot be denied without due process of law.

Based on the oral argument on this case on March 2, 2010, it appears that the majority of the Supreme Court is ready to apply the Second Amendment to the states. If the Court decides to apply the Second Amendment to the states, the result would be that Chicago’s outright ban on handguns and enormously burdensome and costly registration system will be declared null and void.

There are still more battles to be fought on this front. Even if the Court applies the Second Amendment to the states and recognizes gun ownership as a fundamental right, there will still be a question as to what level of regulation cities and states can impose on gun ownership.

One thing is certain, gun rights advocates will continue to challenge burdensome regulations that interfere with gun ownership rights. It may take several years to answer all of the questions about how much protection gun owners enjoy under the Second Amendment, but the battle is now appears to be half won.

As an Oregon Criminal Defense Lawyer, Mr. O’Rourke represents persons charged with crimes involving firearms and persons seeking Restoration Of Gun Rights In Oregon.

When Can a Police Officer Stop Your Vehicle?

A police officer has the right to stop your vehicle if he has probable cause to believe you have violated a traffic law, including both driving and equipment violations.

Many DUII cases begin after police officers have pulled people over for touching or driving across fog lines or center lines on the road, which constitutes the traffic infraction of Failure to Drive Within a Lane.

In a recent case from Washington County, the Oregon Court of Appeals decided the issue of whether having your vehicle touch a fog line or center line, without crossing over it, constitutes Failure to Drive Within a Lane and gives a police officer probable cause to make a traffic stop.

In that case, the defendant was convicted of driving while under the influence of intoxicants (DUII). A police officer saw the defendant come out of a bar at about 1:00 a.m. and drive away. As the officer followed, defendant’s truck tires went onto the double center line, then shortly after that, he observed the pickup’s right tires drive briefly onto the white fog line. The tires never completely crossed over the lane lines. Where defendant drove onto the fog line, the officer later described, “[y]ou can’t really go over the fog lines on that location without going off the road. The fog line’s real close to the edge of the roadway, so the tires just drove onto the fog line”.

As defendant negotiated a curve a bit further down the road, the officer saw defendant’s right tires drive onto the fog line two more times. At that point, he had been following defendant for “[m]aybe a half mile to a mile.” The officer then stopped defendant for failure to drive within his lane and on reasonable suspicion of DUII.

During the stop, the officer smelled alcohol on defendant’s breath. He also noticed that defendant had poor enunciation and bloodshot eyes and that he was swaying and stumbling. He had defendant perform field sobriety tests, which defendant failed. He also administered a breath test to defendant, which disclosed a blood alcohol content of 0.15. Defendant was charged with DUII.

Defendant went before the court and challenged the officer’s stop of his car because the stop violated his right to be free from unreasonable searches and seizures. He asserted that the officer did not have probable cause to believe he was intoxicated after running his tires over the lane markers a total of four times during that stretch of driving. But the trial judge sided with the state and rejected the defense challenge, saying that driving onto the lines four times gave the officer sufficient reason to stop defendant.

The Court of Appeals, in State v. Vanlom, in an opinion released on Dec. 16, 2009, agreed with the trial judge. A police officer is “‘not required to eliminate all possible lawful explanations for conduct that reasonably appears to violate the law,’” and it is enough “[i]f the officer observed an action that he believed was an infraction and that belief is objectively reasonable.”

The phrase ‘within a single lane’ does not mean ‘on’ the lines that mark or divide the lanes. Rather, the statute requires that drivers stay ‘within’ the lines that mark the lanes. Defendant drove onto the lane lines four times over a relatively short distance. In fact, according to the officer’s description, when defendant first drove onto the fog line, he nearly drove off the road, given how close the line was to the edge of the roadway. Because there was no evidence that something beyond defendant’s control prevented him from operating his vehicle in his lane without touching the lane lines, that officer had probable cause to stop defendant for a violation of the law that requires drivers to drive between the lines.

Oregon DUII Lawyer James F. O’Rourke is experienced in litigating stop issues. If the stop is found to be illegal this can lead to the Court refusing to allow the admission of some or all of the evidence gathered by the police during the stop, which can cause the dismissal of the case. This is particularly important in DUII and Drug cases.

2009 Legislature Restricts Use of Cell Phones While Driving

On January 1, 2010, Oregon joined the growing number of states restricting the use of cell phones while driving. The 2009 legislature expanded Oregon’s cell phone driving restrictions in the wake of new data showing that distracted driving was a major problem on Oregon highways. In fact, texting while driving has been shown to be more dangerous that driving under the influence of intoxicants (DUII).

Prior to 2010, the cell phone restrictions applied only to persons under 18. The thought previously was that young drivers lacked the skill and experience to deal with the distraction of using a phone while driving. Now the thinking is that even adults are a risk when distracted by a cell phone.

Curiously, the new law appears to forbid dialing your phone, even if you have a hands free accessory. It allows one only to turn the device on or off or to activate functions, but no dialing. So, pull out your cell phone manuals and figure out how to use the voice activated dialing features of your device.

The new law forbids the use of a cell phone while operating a motor vehicle. There is an exception for a person who is using a hands free device that allows them to keep both hands on the steering wheel.

There are also exceptions for emergency personnel and for people who are using a device in the course and scope of their employment. The exception for employment related use is ambiguous. Do they mean just delivery drivers or does the exception apply to a lawyer who is talking to a client on his way to court? This will be an area for litigation in traffic court.

Also, Prosecutors may argue that in some circumstances where cell phone use results in observable bad driving, the incident should be charged as Careless Driving or the crime of Reckless Driving As a Portland Criminal Defense Lawyer, Mr. O’Rourke represents persons charged with violating ORS 811.507, Operating a Motor Vehicle While Using a Mobile Communication Device, ORS 811.140 Reckless Driving and ORS 811.135 Careless Driving.

2009 Oregon Court of Appeals Upholds Protection Against Unlawful Search and Seizure

Every day in Oregon police officers have encounters with drivers and passengers of vehicles during routine traffic stops. Often the police will develop a suspicion that the stopped drivers or passengers have drugs in their possession either in the vehicle, on their persons or in their belongings (backpacks, suitcases etc). The police officers may try various tactics to get people to give permission to search to search the vehicle, their property or their persons for drugs.

There are State and Federal constitutional protections of a person’s right to privacy – the right to be left alone – including the right to be free from unreasonable searches and seizures. If the police violate those rights the State cannot use whatever they find as evidence in court.

On December 9, 2009, the Oregon Court of Appeals issued its decision in State v. Mathis, which was a case which involved a traffic stop that turned into a drug investigation. In that case, the police violated the passenger’s right to not have her person seized and the drugs the police found in her purse were not allowed into evidence because her consent to the search was given in the during an unlawful seizure. Since the drugs were not allowed into evidence, there was no evidence to convict her of a drug possession crime.

The defendant was a passenger in a car stopped by the police in Salem. Officer Simons initiated the stop after he observed the driver commit several traffic violations. Ultimately, Simons arrested the driver for driving under the influence of intoxicants. Meanwhile, the passenger remained in the car. She was not ordered out of the car nor told to remain in the car.

Other officers arrived, and one of them tried to determine if the passenger was impaired by drugs. He asked her to get out of the car. Although the passenger did not appear to be under the influence of controlled substances, Banks was “curious” to see if the passenger possessed any illegal drugs on her and asked her if she had any drugs. The passenger replied that she did not. Banks then asked permission to frisk the passenger. She told Officer Banks that she did not want to be touched, but turned out her pockets to show Banks their contents. At that point, Banks decided that he would not let her go until he determined whether or not she possessed drugs.

Banks next requested permission to search her purse. Without responding, the passenger started to rifle through her purse. Banks, fearing that she may have had a weapon in her purse, told her to stop and asked again if he could search her purse. The passenger said, “[N]o.” Banks then asked her, “If I call a drug dog here[,] is he going to alert on your purse?” The passenger told Banks to “[c]all a drug dog.”

Banks arranged to have a drug detection dog brought to the scene from The Dalles. He told the passenger that a drug dog was en route, but did not tell her how long it would take to arrive. Banks then told her that, “if she had a small amount of drugs in her purse and if she was cooperative and provided them to us[,] that she would be treated more than fair.” The passenger said “okay,” handed her purse to Banks, said that she thought she had some methamphetamine in her purse. Banks found a small amount of methamphetamine in her wallet.

The Court of Appeals said that Officer Banks’ search of the passenger’s purse was unlawful. His conduct of informing the passenger that a drug dog was on its way was a show of authority such that any reasonable person would believe that he or she was not free to leave. Accordingly, defendant had been unlawfully “seized” for purposes of Article I, section 9, of the Oregon Constitution by the time that she handed her purse to Officer Banks and indicated that there was methamphetamine inside.

Drug charges are serious matters in Oregon. Consult with an experienced Portland Criminal Attorney before you make any decisions about pleading guilty to a drug crime charge.

2009 Legislature Makes Substantial Changes in Oregon DUII Diversion Eligibility, Effective January 1, 2009.

Eligibility requirements for Oregon’s DUII Diversion Program have again been changed by the Oregon Legislature. Alterations to Oregon DUII laws are among the most common areas for new legislation, resulting in changes every two years.

Oregon’s DUII Diversion Program was created in 1979, at the same time the Legislature changed the law to make all DUII’s a criminal offense. Prior to 1979, a DUII with a breath test under .15 was not a criminal offense. In 1979 they lowered the maximum blood alcohol level to .10 and created Diversion as an alternative.

Diversion is a one year deferred sentencing program. The accused is found guilty of DUII but not sentenced for one year. During that one year period the person is required to have an alcohol evaluation and complete treatment as directed at their own expense. There are fees for entry into the program and a mandatory Victims Impact Panel.

Under current law a person who is arrested for DUII is eligible for Diversion if there are no injuries to other people associated with the offense, the person has no pending charge of DUII murder, manslaughter, aggravated vehicular homicide, criminally negligent homicide or assault involving a motor vehicle and the person does not hold a commercial drivers license.

Under current law there is also a “10 year rule,” which means that a person is ineligible if, in the last ten years they have:

A. been convicted of DUII in Oregon or any other state;

B. they have been convicted of an alcohol related driving offense other than DUII in another state; or

C. if they have participated in a DUII Diversion Program or Diversion-like program of any kind for any crime in the last ten years.

The 2009 legislature has now made two significant changes in the law. First, they extended the “10 year rule” to a “15 year rule.” More significantly, the legislature added an additional disqualification: a person must not have been convicted of any other traffic crime in the last 15 years.

The change in the “10 year rule” has been proposed in several past legislative sessions. However, the “no other traffic crimes” restriction is a major change in existing law. This would mean the persons convicted of criminal Driving While Suspended or Reckless Driving would be ineligible for Diversion, as well as anyone convicted of any other major traffic crime.

When Diversion was created in 1979 the legislature was concerned about offering incentives to people to explore rehabilitative alternatives to conviction of a crime. These changes are further evidence of the shift away from an emphasis on rehabilitation toward a “punishment first” philosophy. This change was sponsored and recommended by the Oregon District Attorney’s Association.

This post relates to persons receiving an Oregon DUII.

2009 Legislature Makes Changes in Oregon Felony DUII Law, Effective January 1, 2009.

In 1999 the Oregon Legislature created the new crime of Felony DUII. Under that law, persons who were convicted of their fourth DUII in a ten year span had the offense elevated to a Class C Felony rather than a misdemeanor. However, the law was drafted so as to exclude DUII convictions in Juvenile Court (”Juvenile Adjudications”).

Effective January 1, 2010, Juvenile Adjudications for DUII will be counted as one of the three “predicate offenses” in the ten year period for the purposes of charging Felony DUII.

In larger counties, this change may not make much of a difference. For instance, in Multnomah County, persons over 16 who commit traffic crimes have long been remanded to adult court, bypassing the Juvenile Court process. This “standing remand order” automatically transfers all juveniles accused of traffic crimes into the adult process.

This post relates to Oregon DUI laws.