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James O'Rourke - Criminal defense lawyer Portland Oregon

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Combination DUII – Alcohol and Controlled Substances

Oregon law has special requirements for DUII prosecutions that are based on an allegation that the person was under the influence of a combination of alcohol and a controlled substance. In order to proceed on that theory the state is required to make that allegation specifically, in writing, in the charging instrument.

These hybrid DUII charges have become more common in recent years as law enforcement has become better trained to screen for drug intoxication. Every police agency now has one or more “Drug Recognition Experts;” officers who are specially trained to detect drug use. The testing is very detailed and involves taking vital signs, observing pupil response to light and looking for other physical signs of drug use. It is not unlike having a basic physical examination at your doctor’s office. A trained Drug Recognition Expert who properly administers the battery of tests is allowed to offer an opinion at trial, as an expert, that a person was under the influence of a certain type of drug and alcohol.

While a Drug Recognition Examination is important in a DUII/Drug prosecution, it is not absolutely necessary for the state to obtain a conviction. In a recent case, the Oregon Court of Appeals held that an admission to recent drug use with alcohol use can support a conviction even without a Drug Recognition Expert. In State v. Harmon (Decided December 15, 2010), the Court dealt with a case where an officer observed a subject who appeared “dazed” and performed poorly on field sobriety tests. Also, the defendant admitted to consuming marijuana four hours before the arrest, as well as consuming alcohol, although there was not a strong odor of alcohol on his breath.

The Court of Appeals held that the admission of consumption of marijuana four hours before, the admission of drinking and the poor field sobriety tests was enough for a jury to find that person guilty of DUII, even though there was no Drug Recognition Examination or testimony of a Drug Recognition Expert. This was true even though the jury had no evidence before it on how marijuana and alcohol interact to produce intoxication.

The lesson is to exercise care when using any amount of alcohol when taking controlled substances, including those prescribed by a doctor. The police are waiting and trained to detect and prove that your impaired by a combination of alcohol and drugs.

As Portland DUII and Drug Crime attorneys, we at James F. O’Rourke, Jr. and Associates are committed to the vigorous defense of DUII cases based on impairment cause by the cumulative effects of alcohol and controlled substances.

Oregon Bans “Spice,” Feds File Notice to Follow Suit

On October 14, 2010 the Oregon State Board of Pharmacy completed its evaluation of the “synthetic marijuana” that is sold in shops as “Spice” or “K2.” These substances were first marketed as incense in 2008, but have come to be widely used as a substitute for marijuana. These “synthetic cannabinoids” were developed for research purposes but have not been approved for human consumption by the Food and Drug Administration.

The Board found numerous instances of persons suffering from hallucinations, high blood pressure, irregular heartbeat, seizures and vomiting among people smoking the “incense.” Given the risk to public health, the Oregon Board classified synthetic marijuana as a Schedule 1 controlled substance, meaning that the substance has no legitimate medical use. The rule took effect on October 15, 2010.

This action effectively makes the possession of any amount of “spice” a Class B Felony, subject to the same penalties for the possession of substances such as heroin.

On November 24, 2010, the Federal Drug Enforcement Administration filed a notice of intent to make a temporary rule placing synthetic marijuana in Schedule 1, making possession of the substance illegal under federal law. The new rule takes effect 30 days from the date of the announcement and will remain in effect for one year while Congress decides whether or not to make the changes permanent,

As Oregon Drug Lawyers we at James F. O’Rourke, Jr. And Associates have over thirty years of experience representing persons accused of drug crimes in State and Federal Courts.