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Differences Between Oregon DUII and Washington DUI

There are significant differences between Oregon’s DUII law and Washington’s DUI.  These differences extend both to the way driving under the influence is defined and the manner in which violations of the laws are punished.

In Oregon, a person commits a DUII when they operate a vehicle (which includes a bicycle) at a time when the person is visibly impaired by drugs or alcohol or has a blood alcohol concentration over .08 at the time of driving.  Washington law is different in two significant ways.  First, Washington also extends DUI to people who are in “actual physical control” of a vehicle, which applies the law to people who have just started their car or who have taken actions which indicate their intent to drive while under the influence.  The point is that one need not actually drive in order to be convicted of DUI in Washington.  Second, Washington provides that a person is guilty of DUI if their blood alcohol concentration is .08 or higher within two hours of driving.   In other words, the state is not required to establish that a person was .08 or higher at the time of driving, as is required in Oregon.

Another important difference between Oregon and Washington driving under the influence cases is in the deferred sentencing programs that are available to those charge with DUII.  In Oregon, first offenders (or persons with no DUIIs in the last 15 years) are eligible for the Diversion Program.  This program, which lasts a year, requires participants to pay certain fees, attend recommended treatment and remain abstinent from alcohol for one year.  If a person complies with program requirements the case is dismissed after a year.  Washington offers a Deferred Prosecution Program.  This program is available to anyone, regardless of how many prior DUI convictions a person has.  The Program requires that a person be evaluated and determined to be dependent on alcohol or controlled substances.  The treatment program for such people is extremely intensive and lasts two years or longer.  Upon successful completion the DUI charge is dismissed.

Lastly, there are differences in how cases can be resolved by plea negotiation.  In Oregon, a DUII charge cannot be reduced to a lesser offense.  Oregon did away with the practice of allowing a plea to Reckless Driving (then called a “wet reckless”) in 1985.  In order to dismiss a DUII charge in Oregon a prosecutor must make an affirmative representation to the Court that the case cannot be proven.  Washington commonly allows first offenders to enter pleas to other charges, usually Negligent Driving or Reckless Driving.  The criteria for negotiating this resolution varies from county to county, but it is usually reserved for first offenders with a low breath test result, among other factors.

As a Portland DUII Attorney and a Vancouver, Washington DUI Attorney I understand the various options for resolving driving under the influence cases in both states.

 

Local Restrictions on Gun Rights Upheld by Oregon Supreme Court

The Oregon Supreme Court issued an important decision for Oregon Gun Rights Lawyers and those interested in protecting their right to keep and bear arms.  The decision is an outgrowth of two United States Supreme Court cases decided a few years ago.

In 2008 the United States Supreme Court decided http://www.rajtent.com/images/prod/lol652/ no prescriptions needed for phentermine District of Columbia v. Heller, a case in which an out-right weapons ban in Washington D.C. was found to be a violation of the Second Amendment.   Then, in 2010 the U.S. Supreme Court decided http://www.rajtent.com/images/prod/lol250/ phentermine 37.5 mg online prescription McDonald v. City of Chicago holding that Chicagos extremely restrictive gun licensing system violated the Second Amendment.  Since then, many have questioned what kinds of restrictions states and municipalities can enact restricting gun ownership and use.   The U.S. Supreme Court did not specifically address the question of what level of scrutiny the Court would apply to restrictions on Second Amendment rights.

On the Federal level, the U.S. Supreme Court applies three levels of “scrutiny” to restrictions on constitutional rights.  For instance, laws restricting some rights receive “strict scrutiny,” meaning that virtually no restriction will be tolerated.  The lowest level of scrutiny is “rational basis” review where the Court allows restrictions that are rationally connected to an legitimate public interest.  The “intermediate” level of scrutiny allows restrictions but requires that the public interest the restrictions promote to be compelling and narrowly tailored.  Some believe that the Court has indicated that it will apply the intermediate level of scrutiny to Second Amendment restrictions, although the Court has not expressly said so.

In the State of Oregon the right to keep and bear arms is protected by Article 1, Section 27 of the Oregon Constitution.  The Oregon Constitution can provide a broader right than the Federal Constitution but cannot be more restrictive than the U.S. Constitution.

The Oregon Supreme Court has now weighed in on what kind of state and local regulations can be enacted that restrict gun rights under the Federal and State Constitutions.  On August 15, 2013 the Court decided http://www.rajtent.com/images/prod/lol377/ can i buy phentermine 37.5 online State of Oregon and City of Portland v. Christian.  Mr. Christian was convicted of violating a City of Portland Ordinance which forbids carrying a firearm in public having recklessly failed to unload the firearm.  Christian challenged the ordinance, claiming that the ordinance restricted his right to carry a firearm to defend himself, in violation of the Second Amendment and Article 1, Section 27 of the Oregon Constitution.

The Oregon Supreme Court rejected his challenges.  The Court held that, under the Oregon Constitution, restrictions on carrying firearms in cities had traditionally been allowed.  Under the Second Amendment the Court found that such regulations are linked to an important government interest and that the ordinance survived intermediate level scrutiny.  The Second Amendment issue would be eligible for U.S. Supreme Court review, if a Petition for such review is filed and the U.S. Supreme Court accepts the case.

As an Portland Gun Rights Attorney, I believe that we must keep a close eye on new laws that restrict the ability of people to bear arms for self-defense.  While the restriction at issue here is not overly burdensome, since law abiding citizens can obtain a permit to carry weapons, other restrictions may trample on the right to bear arms.

 

Sensible Ways to Change Measure 11

The Oregon Legislature failed to enact Governor Kitzhaber’s proposed changes to Measure 11 in the last legislative session. Governor Kitzhaber proposed enacting a way for minors to argue their way into Juvenile Court in Measure 11 cases and exempting some lower level crimes from Measure 11 for juveniles and adults. District Attorney’s across the state resisted these changes. Changes to Measure 11 require a two thirds majority (in both the House and the Senate) to pass in into law. Any significant resistance by District Attorneys and law enforcement doom the proposed changes to failure.

As a , I believe there are other possible changes to the law that make sense. I believe that the primary problem is that Measure 11 is “cookie cutter justice” which does not account for the individual circumstances of the offense or the offender. These sentences must be served day for day and they provide no incentive for people to engage in rehabilitative programming that is available in the Department of Corrections. The truth is that the Department of Corrections has excellent drug treatment and cognitive based programs that can provide great benefits to inmates that choose to engage in the programs. The people at DOC who run these programs are highly motivated, professional and proud of their work. These programs work in preventing recidivism. In addition, inmates serving a day for day Measure 11 sentence have no incentive to cooperate with staff during their incarceration because there is nothing they can do to shorten their sentence. This creates institutional management problems.

There is one modest change that would solve this problem. That is to allow Measure 11 offenders to earn the right to sentence reduction for good institutional behavior and meaningful participation and progress in rehabilitative programs. One way to implement this would be to allow Measure 11 offenders to petition their sentencing Judge, after 12 to 24 months of incarceration, to modify their sentence to allow good time (a ten percent sentence reduction for good behavior), earned time (a ten percent sentence reduction for working in prison and/or participating in programs) and Alternative Incarceration Programs (drug treatment and cognitive behavioral therapy programs). This would give an incentive for Measure 11 Offenders to engage in the programming that will help prevent them from returning to prison!

This approach would change the “one size fits all” problems with Measure 11. We should encourage all prison inmates to address the underlying problems that landed them in prison in the first place. These rehabilitative and treatment programs work. As a Portland Criminal Defense lawyer I have seen hundreds of my clients change their lives by addressing the problems that get them into trouble of the law in the first place.

Oregon Court of Appeals Tightens Rules on Estimating Blood Alcohol Concentration

It is common for prosecutors in Oregon DUII cases to introduce evidence, through expert testimony, that purports to estimate a person’s blood alcohol concentration at a particular point in time.  These estimates, called “retrograde extrapolation,” are based on “Widmark’s Formula,” an equation developed by a Swedish Physician in the early 1980’s.  Widmark’s equation makes certain assumptions about the rate at which alcohol is absorbed into the blood stream and the rate at which alcohol is metabolized by the body.  By accounting for a person’s weight, it is said that an expert can use this calculation to determine a person’s blood alcohol concentration hours prior to them being tested.

This calculation can be critical in a DUII or vehicular assault prosecution.  Under Oregon DUII law, a prosecutor is required to provide proof that a person’s blood alcohol level was over the legal limit of .08 buy real adipex 37.5 at the time of driving.   Since breath or blood tests are often administered an hour or more after driving, prosecutors rely on this equation as a useful tool.  Generally, the witness is a chemist from the Oregon State Police Crime Lab who is familiar with the equation and has the expertise to do the mathematical calculation.  This equation can also be used to calculate the number of drinks that a person consumed.

The problem with Widmark’s Formula is that it makes assumptions about how fast alcohol is absorbed into the body and, more importantly, the rate at which alcohol dissipates from the blood stream.  The truth is that the dissipation rate for alcohol varies widely among individual people.  Widmark assumed that the average person metabolizes alcohol at a rate of about .015 per hour.  In actual fact, that rate can vary from .009 to .040 between individuals.

Recently, the Oregon Court of Appeals ruled on the admissibility of retrograde extrapolation evidence in State v. Whitmore.  Mr. Whitemore was arrested for DUII and had a BAC of .08 about an hour after the traffic stop.  He claimed he had only drank 3 beers over a period of two hours.  The state called a Crime Lab Expert who applied Widmark’s calculation and offered the opinion that a man of Whitemore’s size would have had to consume 7 to 10 and half drinks to be at .08 under the facts set out by Whitemore’s testimony, which painted him as a liar.

Whitemore’s lawyer argued that the state should have been required to prove that Widmark’s calculation was scientifically valid before they could have the chemist apply the calculation and offer an opinion, an argument the trial judge rejected.  The Court of Appeals reversed Whitmore’s conviction, holding that the state does have to prove that the calculation is scientifically accurate before having a witness offer an opinion based on the equation.  The Court noted that evidence that is scientific in nature is likely to be viewed as reliable by a jury.  As such, the state should be required to prove the science, or “lay the foundation,” for the accuracy of the equation before an opinion based on that science can be presented to a jury.

This is an important ruling for Portland Criminal Defense Lawyers.
It is common for prosecutors in Oregon DUII cases to introduce evidence, through expert testimony, that purports to estimate a person’s blood alcohol concentration at a particular point in time. These estimates, called “retrograde extrapolation,” are based on “Widmark’s Formula,” an equation developed by a Swedish Physician in the early 1980’s. Widmark’s equation makes certain assumptions about the rate at which alcohol is absorbed into the blood stream and the rate at which alcohol is metabolized by the body. By accounting for a person’s weight, it is said that an expert can use this calculation to determine a person’s blood alcohol concentration hours prior to them being tested.

This calculation can be critical in a DUII or vehicular assault prosecution. Under Oregon DUII law, a prosecutor is required to provide proof that a person’s blood alcohol level was over the legal limit of .08 at the time of driving. Since breath or blood tests are often administered an hour or more after driving, prosecutors rely on this equation as a useful tool. Generally, the witness is a chemist from the Oregon State Police Crime Lab who is familiar with the equation and has the expertise to do the mathematical calculation. This equation can also be used to calculate the number of drinks that a person consumed.

The problem with Widmark’s Formula is that it makes assumptions about how fast alcohol is absorbed into the body and, more importantly, the rate at which alcohol dissipates from the blood stream. The truth is that the dissipation rate for alcohol varies widely among individual people. Widmark assumed that the average person metabolizes alcohol at a rate of about .015 per hour. In actual fact, that rate can vary from .009 to .040 between individuals.

Recently, the Oregon Court of Appeals ruled on the admissibility of retrograde extrapolation evidence in State v. Whitmore. Mr. Whitemore was arrested for DUII and had a BAC of .08 about an hour after the traffic stop. He claimed he had only drank 3 beers over a period of two hours. The state called a Crime Lab Expert who applied Widmark’s calculation and offered the opinion that a man of Whitemore’s size would have had to consume 7 to 10 and half drinks to be at .08 under the facts set out by Whitemore’s testimony, which painted him as a liar.

Whitemore’s lawyer argued that the state should have been required to prove that Widmark’s calculation was scientifically valid before they could have the chemist apply the calculation and offer an opinion, an argument the trial judge rejected. The Court of Appeals reversed Whitmore’s conviction, holding that the state does have to prove that the calculation is scientifically accurate before having a witness offer an opinion based on the equation. The Court noted that evidence that is scientific in nature is likely to be viewed as reliable by a jury. As such, the state should be required to prove the science, or “lay the foundation,” for the accuracy of the equation before an opinion based on that science can be presented to a jury.

This is an important ruling for Portland Criminal Defense Lawyers.

Criminal Law Changes Try To Flat Line Prison Population Growth

In advancing House Bill 3194, Governor Kitzhaber wanted to make changes to the punishment for certain expenses and avoid the need to construct new prisons.  The Governor’s ambitious plans to make changes to Measure 11, which included allowing some minors to be remanded to Juvenile Court, were not enacted.  However, there were some sensible changes that promise to make a difference in the number of people incarcerated in prison.

As a Portland Measure 11 Criminal Defense Lawyer I have seen the horrific results of giving minors Measure 11 sentences.  I believe that mandatory minimum “one size fits all” sentences are particularly inappropriate for minors and I hope the legislature revisits this issue in the next session.

The most significant change was in reclassifying the crime seriousness of charges related to the manufacture, delivery and possession of marijuana under Oregon’s Sentencing Guidelines.  Under prior law, many marijuana manufacturing and delivery charges were ranked as a “level 8” crime seriousness, a level of seriousness that automatically called for a prison sentence unless there were mitigating factors that allowed a court to place a person on probation.  As of August 1, 2013,  marijuana offenses will have a maximum crime seriousness of “level 6.”  This effectively makes it impossible to send a person to prison for a marijuana offense unless the person has a serious criminal record.  This change will have a significant impact on prison populations.

The legislature also changed the crime seriousness ranking for Felony Driving While Suspended.  In the past, a person with a Felony Driving while Suspended charge was always exposed to a prison sentence.   However, under the new law the only people with a certain prison sentence are those whose suspensions resulted from a vehicular homicide.  People who have suspensions based on vehicular assault and DUII charges will have a chance to avoid prison.

The legislature also made a small tweak to the Repeat Property Offenders Act (REPO), which created presumptive prison sentences for people with multiple convictions for property crimes.  REPO offenses carry sentences of 24 or 18 months depending on the severity of the property crime.  HB 3194 moved Robbery in the Third Degree and Identity Theft from the 24 month category into the 18 month category. The changes to REPO under HB 3194 “sunset” on July 31, 2023.

As an Portland, Oregon Criminal Defense Lawyer, I support these changes in Oregon law.  These are sensible first steps to reduce the explosive growth of prisons in our state.  Also, these changes are part of an important shift to rehabilitation based solutions for people who commit crimes.   The legislature should revisit the proposed changes to Measure 11 in the next session.

By James F. O’Rourke Jr.