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James O'Rourke - Criminal defense lawyer Portland Oregon

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Oregon DUII Diversion and Active Duty Military Personnel – Law Change for Oregon Criminal Defense Lawyers

Prior to 2011 active duty military personnel, who were charged with DUII were forced to make a hard choice between two unpleasant options.

Many military service members had active duty commitments which prevented them from completing the DUII Diversion Program in the twelve to eighteen months allowed by Oregon Law. See ORS 813.230. This was particularly true for reservists getting called up to active duty and all active duty personnel scheduled for deployment.

They had to choose between entering the DUI Diversion Program to avoid conviction and thereby give up eligibility for deployment, which, most often ends a military career or to give up the right to DUII Diversion and plead guilty and take a criminal conviction with all its consequences including a permanent criminal record.

Most of us who work in the criminal justice system were unhappy that military personnel were in effect being punished more severely than civilians because they were performing a service commitment to our country.

In 2011, Veteran Advocates lobbied the Oregon Legislature to support a bill designed to address this problem. The Legislature responded by enacting into law a bill which modified the laws relating to DUI Diversion to allow the courts to accommodate the needs of active duty military personnel so that they could participate in DUII Diversion.

First, the legislature changed the law to forbid courts from denying entry into the DUII Diversion program simply because the person’s active duty military obligations prevented them from completing the program on the standard Diversion time line. Courts are now authorized to expand the time to complete Diversion for as long as necessary to accommodate active duty service obligations. In addition, the courts are authorized to allow military personnel to complete military treatment programs to satisfy the Diversion treatment requirements.

As an Oregon DUII lawyer, we at James F. O’Rourke, Jr. and Associates have experience representing members of the U.S. Military in DUII and other criminal matters. We understand that criminal cases have serious implications for service members and we strive to minimize or eliminate the impact of a criminal case on a service members career.

As a Portland Criminal Defense Attorney, Mr. O’Rourke has helped a number of military personnel through the Oregon criminal justice system on all kinds of charges to get results which allowed them to continue their careers.

We have helped many veterans returning from overseas duty deal with criminal problems in Oregon. Often, there is a connection between their active duty experiences and criminal conduct. We have represented many veterans who suffer from PTSD.

Persons in Oregon DUII Diversion must have and ignition interlock device installed in any vehicle they drive, including vehicles owned by their employers

In 2011 the Oregon Legislature amended ORS 813.602(2) as follows:

“The court shall require as a condition of a driving while under the influence of intoxicants diversion agreement that an approved ignition interlock device be installed in any vehicle operated by the person during the period of the agreement when the person has driving privileges.”

This law change requires a judge to order persons in DUII Diversion to have an ignition interlock device in any vehicle they drive. However, the legislature did not give courts the authority to waive that requirement for people who drive their employer’s vehicles. Thus, every person in Oregon DUI Diversion who drives an employer’s vehicle must install an ignition interlock device in their employer’s vehicle. This creates obvious problems, since employers do not want to pay the expense of installing and renting such devices. People in DUI Diversion are often faced with the choice of violating their DUII Diversion agreement by driving a vehicle without an approved ignition interlock device or losing their jobs.

The Legislature needs to act now to fix this unintended problem. They can do this one of two ways.

First, they could simply authorize a judge to exempt employer owned vehicles from this DUII Diversion requirement. This would place a burden on courts to evaluate each case and determine whether or not an employer exception is appropriate in a given case.

Second, the Legislature could do what it should have done in the first place: have DMV administer this requirement. Ignition interlock devices have been required for persons convicted of Oregon DUI for decades. DMV has administered that program quite well and has a process in place for a person to apply for an employer-owner vehicle exemption. It makes sense to have DMV run this program because it is an agency with policies already in place.

I expect a bill to fix this problem will be submitted when the legislature reconvenes in January of 2013. As a DUI Defense lawyer Portland, Oregon City and Beaverton, I represent many people who enter DUII Diversion each year. It is my hope that this law is changed early in the legislative session and made effective immediately.

Don’t Talk About Your Legal Issues By Phone or Text, The Police May Be Listening

Simply asserting your right to remain silent and right to counsel will not stop the police from trying to get you to admit to crimes. These admissions can be used in court. The only way to protect yourself is to speak only to your lawyer about your case. A lawyer can only protect your rights if you do not speak to other people about your case.

The Oregon Supreme Court has decided that the Oregon Constitution’s protections do not protect a defendant from police questioning outside the presence of his attorney before arrest or outside compelling circumstances.

In State v. Davis (2011), the Defendant was under investigation for sexual abuse. He retained an Oregon Criminal attorney and that lawyer sent the police a letter on Mr. Davis’ behalf advising law enforcement that Mr. Davis was represented and should not be questioned outside the presence of the lawyer. Eight months after this correspondence, the detective working on the case learned that Mr. Davis was contacting the alleged victim through an instant messaging program. The detective had the alleged victim come into his office and he instructed her on what to type to elicit incriminating responses from Mr. Davis. Based on the incriminating responses obtained through those “pretext chats,” the police obtained a search warrant and gathered enough evidence to charge Mr. Davis with a crime.

The Oregon Supreme court held that despite the invocation of counsel, Mr. Davis was not protected from this police action by the Oregon Constitution. Under Article 1, Section 11, the guarantee of the right to counsel only applies in criminal prosecutions. Using textual, historical and case law analysis, the Court decided that the criminal prosecution had not yet been initiated as Mr. Davis had not yet been arrested or charged. Using a similar analysis under Article 1, Section 12 of the Oregon Constitution, the Court found that despite Mr. Davis’ invocation of his right to remain silent without the assistance of his attorney, he was not compelled to make incriminating statements because the circumstances of the pretext chats were not compelling. He was not in custody, nor were any threats or promises used to compel him to incriminate himself. The detective used sneaky investigation techniques and Mr. Davis was fooled into making incriminating statements. By it’s very nature, the pretextual contact with police was not compelling because Davis did not know he was talking to anyone but the alleged victim and she wasn’t threatening him.

What does this mean for the accused in Oregon? We tell our clients not to talk about their case to anyone but their Oregon Criminal Defense lawyer. We say: let your lawyer do the talking with the police.

Just Say No to Talking With the Police Without Your Portland Criminal Defense Lawyer

State v. Potter: If you already have an Oregon criminal defense attorney on one case and the police come to talk to you about another case, we recommend our clients assert your right to counsel and do not talk to them unless your attorney tells you to talk to them.  We warn our clients, if you do talk about the new case that is not connected to your original case, your right to counsel will not apply and your statements can not be excluded from evidence on the basis that you were denied your right to counsel.

If you are in custody, pending charges, and are represented by an attorney on one case, the police may try to talk to you about other cases without your lawyer present.  Unless those cases are similar and connected to your current charges, the right to counsel may not protect you.

The Oregon Court of Appeals decided in State v. Potter (2011), that when police questioned a man in custody on Identity Theft charges about related Identity Theft charges, the questioning was an interrogation and violated Mr. Potter’s right to counsel under Article 1, Section 11 of the Oregon Constitution.  Mr. Potter was involved with a group of people cashing fraudulent checks.  He was arrested by one detective and jailed.  He was appointed a Portland criminal defense attorney who was representing him on those charges.  While he was in jail, a second detective began investigating Mr. Potter for some other fraudulent check cashing and talked to the first detective as well as Potter’s wife before seizing Potter’s computer hard-drive and finally interrogating Potter himself.  The question the Court addressed was whether the two cases were related enough that the right to counsel on the first case protected Mr. Potter from interrogation in the second case.

The Court indicated that the proper inquiry was not whether the cases were “inextricably intertwined” but rather whether the cases were “factually unrelated.” If they were unrelated, then the questioning by the detective was constitutionally allowed.  By means of example the Court described a case where the defendant was arrested for Oregon DUII and driving a stolen car.  When officers questioned the defendant about the burglary from which the car was stolen and other burglaries, that was factually related to the crimes the defendant had already been charged with and so impermissible.  In Mr. Potter’s case, the Court found that the crimes were “remarkably similar.”  The two detectives working collaboratively in the same geographical area were investigating overlapping evidence (Mr. Potter’s computer) and the crimes were committed close in time and place.  All of those factors together meant the two crimes were factually related.  Because of that, Mr. Potter was entitled to “the benefit of an attorney’s presence, advice and expertise in any situation where the state may glean involuntary and incriminating evidence or statements for use in the prosecution of its case against defendant.” The detective should have called Mr. Potter’s Portland Criminal Defense Lawyer and requested permission to interview Mr. Potter.