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James O'Rourke - Criminal defense lawyer Portland Oregon

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Expungement in Oregon – Oregon Legislature Now Allows Expungement of Certain Sex Crimes Convictions

Oregon Law has allowed for people to “expunge,” or seal, the record of their arrest and conviction for certain crimes. Generally speaking, misdemeanors and Class C Felonies can be expunged from a person’s record after a period of time, either three or ten years, depending on the circumstances. Some offenses, such as traffic crimes and crimes involving child abuse can never be removed.

Sex crimes have long been excluded from expungeable offenses. However, in this legislative session, the Legislature approved House Bill 3327, which allows for some sex offenses to be expunged.

House Bill 3327 allows for two classes of sex offenses to be expunged.

The new law allows misdemeanor sex offenses where the sexual contact was consensual and where there was less than five years difference in age to be expunged. However, the offender must have received relief from sex offender registration and have no other convictions for non-expungeable sex crimes. This new provision also applies to the Class C felony crimes of Rape in the Third Degree and Sodomy in the Third Degree.

The legislature also chose to allow certain people to expunge Class C felony sex crimes under certain conditions. First, the Class C felony sex crime must have been committed when a person was under 16 years of age. Second, the offense must have involved a person less than three years younger and the victim must have been over the age of 12. Third, the act must have been consensual. Fourth, the person must not have any convictions for non-expungeable sex crimes.

As an Oregon expungement lawyer, Mr. O’Rourke sees this is a positive step forward in recognizing the importance of allowing people to remove crimes from their record if the offenses are aberrations from a normally law abiding life or when the offense or offenses are long in the past. This is particularly true of sex offense convictions from a person’s youth, which is what the new law is tailored to address. A sex crime conviction can be very difficult to explain to a prospective employer, even if there are significant mitigating circumstances.

There are other anomalies in the expungement statute that await legislative action. For instance, a person convicted of Felony Driving While Suspended cannot ever remove that felony from their record, effectively branding them as felons forever, when people with far more serious convictions can erase their records. James F. O’Rourke, Jr. and Associates hopes that the legislature will continue to expand the expungement statute to allow deserving people relief from the stigma of a criminal conviction.

Military Service is Now a Sentencing Guidelines Mitigating Factor

Since 1989, Oregon has followed a set of sentencing guidelines in order to determine the proper sentence for a felony criminal offender. These guidelines rank the seriousness of a particular felony crime and take into account a person’s prior criminal history. The crime seriousness and scored criminal history produce a “presumptive sentence” which is set range of penalties that are deemed an appropriate starting point for a felony sentence.

However, a Court is not bound by the presumptive sentence. The Court can consider aggravating factors and increase the presumed sentence or mitigating factors which the Court can rely on to impose a lesser sentence.

In the current 2013 legislative session veterans advocates advanced a bill that would allow Courts to consider evidence regarding a person’s military service as a mitigating factor at sentencing. That bill, Senate Bill 124, was unanimously passed both by the House and the Senate in late May. Governor Kitzhaber signed the Bill into law on June 6, 2013. The new law went into effect immediately and applies to all criminal cases that occurred before or after the passage of the bill. As a result, the new law is effective immediately and can be used to benefit veterans as of June 6, 2013.

There are good reasons to add military service to the list of mitigating factors. First, military service is relevant to show good character and a willingness to provide service to others. Second, veterans, particularly combat veterans, are sometimes adversely affected from their military experiences. Often, Post Traumatic Stress Disorder has played a role in the underlying crime. As a Portland criminal defense lawyer, I have represented many veterans with PTSD who self medicate with alcohol or drugs. These individuals should be treated differently than people who are recreational users of alcohol or controlled substances since they are, for all practical purposes, self-medicating a service connected disability.

This new mitigating factor will come into play in a number of different types of felony crimes from drug charges to DUII. At James F. O’Rourke Jr. and Associates, we have always highlighted our clients military service, and the personal difficulties that are a product of that service, in discussions with prosecutors and with the court at sentencing. As a Portland criminal defense attorney, this is just a part of the comprehensive presentations our office makes in criminal cases. Most judges and prosecutors have responded positively to military service. The legislature showed compassion and common sense in formalizing military service as a mitigating factor.

Oregon Supreme Court Approves Portland Criminal Lawyer’s “Sleep Driving” Defense to DUII

The Oregon Supreme Court decided State v. Miller in 1990, holding that involuntary intoxication was not a defense to DUII.  The Court determined that DUII was a “strict liability” offense and that the legislature had deliberately written the DUII statute to dispense with the requirement that the state prove that a person had intentionally, knowingly or recklessly become intoxicated.

Now, twenty three years later, the Oregon Supreme Court decided State v. Newman, holding that, while the state does not have to prove intent to become intoxicated,  the state does have to prove that the act of driving itself was intentional, knowing or reckless.

In 2007, Mr. Newman went to dinner with friends.  Knowing that he would be drinking, Mr. Newman walked to the restaurant and his friends drove him home and he went to sleep.  He was arrested later that evening for DUII when he was observed driving erratically by the Portland Police.

At trial, Mr. Newman sought to introduce evidence from a physician that he suffered from “sleepwalking disorder” which is a recognized mental health disorder.  The physician testified that a person in a “sleepwalking” state would not be capable of performing the voluntary act of driving because, in this state, people are not truly conscious.   Mr. Newman wanted to testify that, while he had sleepwalked in his home, he had never driven before while asleep.

The trial court refused to allow such evidence to be admitted, finding that DUII was a strict liability offense and, as such, was not relevant.  Mr. Newman was convicted of Felony DUII after a trial to the court.

Mr. Newman appealed and the case made its way to the Oregon Supreme Court.  The Supreme Court recognized its holding in Miller in 1990 finding that the intoxication element of DUII did not require proof of intent.  However, the Court noted that it had never addressed the issue of whether the driving element of DUII required proof of intent.

The Supreme Court observed that Oregon law requires that the element of any crime requires proof of a ‘voluntary act” as a “minimal requirement” in order for a person to be found guilty of a crime.  Under the circumstances of Mr. Newman’s case, it was possible to prove that he was in an unconscious state at the time of driving and that his actions were not a product of his intoxication.  The Court found that if he proved that his driving was an unconscious act, and therefore not a voluntary act, a jury could find him not guilty of DUII.  The Court reversed his conviction and remanded his case for a new trial.

This case provides an avenue for an entirely new defense to the charge of DUII.  As a Portland Oregon DUII Lawyer, I explore all possible defenses to DUII.