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.