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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 phentermine overnight fedex 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.