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James O'Rourke - Criminal defense lawyer Portland Oregon

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Stopped for DUII – Why Are They Giving Me an Eye Test?

Most people who are stopped for DUII are baffled by the officer’s request to have them watch as he or she moves a pen back and forth across their field of vision. The test is known as the Horizontal Gaze Nystagmus Test and is used by DUII enforcement officers across the country.

In this test the officer is trying to observe a physiological phenomenon known as nystagmus, an involuntary jerking movement in the pupil as the eye tracks horizontally from side to side across the field of vision. The theory behind the test is that the officer can observe nystagmus at certain points in a person’s field of vision and correlate that to a person’s blood alcohol concentration. In the law enforcement community, this is the most important test to determine if a person is under the influence. Generally, it will be the first field sobriety test administered. Most officers believe that they can actually predict a person’s actual blood alcohol concentration from this test.

The HGN test is not without controversy. Because it is scientifically based test the prosecution must demonstrate that the results of the test are accurate and reliable in order to get them admitted into evidence, which involves laying an exacting foundation for the admission of the officer’s conclusion that his or her observations prove a person was under the influence.

The Oregon Supreme Court has previously held that, generally speaking, there is sufficient proof that an HGN test can provide proof of intoxication and a properly trained officer can so testify in court, if the test was be properly administered according to the “scientific protocols.”

The Oregon Court of Appeals dealt with the issue of what happens when the test is not properly administered. In State v. Ingram (Decided November 17, 2010) the Court dealt with a case where the arresting officer admitted that he had not followed his training in administering the HGN test and had not observed testing protocols. In Ingram, the Court of Appeals determined that, since the evidence is scientific in nature, failure to follow scientific protocols rendered the entire test inadmissible. The Court’s holding holds DUII officers to the requirements that they follow their training and perform the correct procedures in conducting the test.

As Oregon DUII Attorney’s we at James F. O’Rourke, Jr. and Associates vigorously assert our client’s right to have the HGN test evidence kept out of court if the police fail to follow the correct procedures for administering the test.

Measure 73 Passes By Wide Margin – Persons with 2 DUII Convictions within 10 Years of the Date of a New DUII Citation will be Charged with a Felony DUII

Ballot Measure 73 passed with 57 percent of the vote on November 2, 2010. The Measure, which, among other things, expands those subject to the charge of Felony DUII, will go into effect 30 days after the election; December 2, 2010.

Measure 73 makes DUII a felony if a person has two prior DUII convictions within ten years of the current offense.  The measure also mandates a minimum 90 day jail sentence for all persons convicted of felony DUII.

The measure was opposed by most newspaper editorial boards because of the cost of the measure at a time when the state has a three billion dollar budget deficit. The Secretary of State estimates that the measure will cost an additional 1.4 million the first year and that could balloon to as much as 29.1 million in the fourth year and every year thereafter.

Frankly, I believe the costs are underestimated. The number of people who receive a third DUII in ten years is larger than one might think. People pick up multiple DUIIs because they have a problem with drugs or alcohol that is out of control. It is not uncommon for people with alcohol problems to pick up DUII crimes in clusters. I suspect the number of Felony DUIIs will increase dramatically.

Most persons who receive a third DUII within 10 years do not need to be imprisoned to stop drinking and/or drinking and driving. Most are able to stop with the help of residential and/or community based out-patient treatment. Imprisonment is an extreme, expensive and somewhat ineffective solution to repeat DUII conduct. There are excellent in-custody alcohol and drug treatment programs, but the legislature has placed so many restrictions on entry into these programs that they are underutilized and underfunded. Plus, community based treatment is more effective in treating alcohol and drug dependency and preventing repeat DUII conduct.

As Oregon Felony DUII lawyers we work with our clients to prepare individual sentencing mitigation plans that help persuade judges that a severe punishment for Felony DUII is not necessary. More importantly, we help our clients break the cycle of multiple DUIIs.