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Category: Criminal Defense

Probation Officers Should Not Direct Addicts on Probation to Take Methadone – There are Better Options

As an Attorney who defends drug cases in Portland and Gresham, I deal with many clients who use methadone to prevent opiate withdrawal.  Methadone has been available in the United States since 1947.  This drug is a synthetic narcotic that is used, primarily, as a replacement drug for people addicted to heroin, morphine or other opiate drugs.  It is also used for long term management of chronic pain.  Methadone has a  potential for abuse and addiction that is similar to heroin or morphine.

An entire industry has arisen around methadone in its use to control withdrawal symptoms in opiate addicts.  Methadone clinics serve thousands of addicts on a daily basis, administering doses of the drug directly to clients.

Used in a proper treatment model, methadone can be quite useful.  When an addicted person transfers their need for heroin to methadone, engages in treatment and gradually reduces the dose of the drug (called titration) the person can end up drug free and clean and sober after a period of time.  Proper titration can take months.

The problem is that many programs simply administer methadone, fail to have clients engage in meaningful treatment and continue people on methadone indefinitely.  This is an incredibly bad idea for a number of reasons.

First, methadone is dangerous.  The drug is a powerful respiratory and cardiac depressant.  Mixing methadone with other depressant drugs, like Xanax or alcohol, can cause a person to pass out and stop breathing.  Used long term, methadone can build up in a person’s body fat.  When the body fat becomes saturated it “dumps” the excess methadone into the blood stream and can cause an overdose, even when a person is taking their prescribed dose.

Second, methadone is not a cure for addiction.  Heroin addicts who switch from heroin to methadone are just as addicted to opiates as they were before.  They experience euphoria when they dose and they experience the same symptoms of withdrawal as the dose wears off, the most common of which is extreme fatigue (called “the nods”) which people experience in the afternoon.  People who replace heroin with methadone without treatment will still think like an addict and act like an addict.  It is very common for a methadone patient to use the drug as a bridge between heroin doses.

Third, the methadone clinic milieu is a culture of addiction, not recovery.  The environment itself can lead to relapse and new criminal activity.  Heroin dealers know that methadone clinics are a good place to sell heroin and they frequent the areas around the clinics.  This environment and easy access to drugs, is dangerous for addicts trying to recover.

Some probation officers feel that addicted probationers perform better on probation when they are using methadone.  Even if that is partly true, the truth is that methadone patients are always at a high risk for opiate relapse.  Once in relapse they will return to all of the drug acquisition behaviors that led them into legal trouble in the first place.

Methadone is an old drug.  There are new, more sophisticated, alternatives that can actually help people become completely clean from opiates.  Treatment is a necessary component  in this process.  As a Portland Drug Crimes Lawyer I believe that new medication and treatment modalities that actually get people clean from drugs are preferable to the use of methadone.  I see too many of my clients who use methadone relapse into drug use and criminal activity.

“Aid and Assist” and Fitness to Proceed to Trial Hearings in Portland, Oregon

I know that a person charged with a crime must have the mental capacity to stand trial.  A person must understand the nature of the charge, the possible punishment for the crime, have a basic knowledge of the legal system and be able to work with an attorney in order to assist in the defense of the case.

There are times when a person is does not possess the minimum ability to stand trial.  Sometimes this is due to mental illness.  Other times it is due to developmental disability.  The inability to stand trial may be temporary, such as in cases of treatable mental illness.  There are also times when a condition is permanent.  Oregon law sets out the procedure for determining whether or not a person is “fit to proceed” and sets out a procedure for determining whether or not a person’s incapacity is permanent.

It is particularly important for a criminal defense lawyer to consider whether or not a client is fit to proceed when defending a Measure 11 case.

When a defense lawyer or a Judge has reason to believe that a person charged with a crime is not fit to proceed “aid and assist” proceedings are initiated.  The decision as to whether or not a person is capable of proceeding to trial is left entirely to the Judge presiding over the case.  The Judge selects an expert to evaluate the defendant and offer an opinion on the person’s fitness to proceed.  Generally, these evaluations are done at the Oregon State Hospital.  A person is usually transported to the Oregon State Hospital for a period of 30 days for an evaluation.  However, the Court is not required to send a person to the State Hospital and can direct the defendant to an appropriate placement in the community subject to monitoring and supervision.


These evaluations are designed to measure a person’s baseline intellectual ability and are designed to detect a person who is faking or exaggerating their disability.  Different tests are used depending on the persons age and the nature of their disability.  Some testing is specifically designed for people who are afflicted with mental retardation and developmental disabilities.

After the evaluation, the expert renders an opinion on the defendant’s fitness to proceed.  If a person is not fit to proceed, the expert advises the Court on possible plans to assist a person in regaining the ability to stand trial.  In cases with mental health issues, medications can sometimes help restore a person’s mental capacity.  Cases of low intelligence and developmental disabilities are more challenging.  There are types of education that can be attempted, focusing on how the legal system works and how a lawyer can help the defendant.  These efforts to “treat until fit” can last from 90 to 180 days.

After the evaluation is complete a hearing is held.  The expert testifies and is subject to cross examination.  If the prosecution or the defense disagree with the conclusions of the expert they can request that another evaluation be performed by a different expert.  If a second evaluation is performed the Court sets another hearing in 30 days and refers the defendant for the evaluation.  Once the evaluations are complete the Court decides whether or not a person is fit to stand trial or whether other measures must be taken to assist the defendant.

If it is determined that a person will never be capable of standing trial the Judge can dismiss the case and commence civil commitment proceedings.  If the person does not qualify for civil commitment, the Court can order the defendant to be discharged.

For example, suppose a person with serious developmental disabilities commits a serious crime and is awaiting trial.  A person with this kind of disability cannot have their capacity “restored” because they never had the requisite mental capacity to stand trial.  The Court can order the “treat until fit” education, which may improve the person’s understanding of how the legal system functions.  But, a person who suffers from serious cognitive impairments may never develop the ability to intelligently make the decisions that only a defendant can make in the defense of a criminal case.  These decisions are especially critical when a person is charged with a Measure 11 crime carrying the possibility of long prison sentences.

In cases of mental illness there are other difficulties.  Suppose you have a person who suffers from severe schizophrenia who has auditory and visual hallucinations.  This person would respond to medications, but refuses to take medications.  The Court can, in some circumstances, force a person to be medicated.  But, in cases where a persons capacity cannot be restored, even with medications.  People in this position are generally subject to civil commitment and long term hospitalization.

As Portland Criminal Defense Lawyer, I recognize that it is necessary to understand the full range of events that can transpire in a criminal case.  Determining a client’s fitness to proceed is a critical issue, particularly in serious felony cases.

Oregon Supreme Court Lifts Limits on Prosecutorial Discretion

Portland Property Crimes Attorneys should take note of a recent Oregon Supreme Court decision which makes a significant change in Oregon Law.

By way of background, in 1982 the Oregon Supreme Court issued its opinion in phentermine 30mg buy online australia State v. Freeland, a case which set clear limits on prosecutorial discretion.  In buy phentermine hcl 15mg Freeland, a district attorney charged a person with a crime by taking the case to grand jury, rather than allowing him a preliminary hearing which would have occurred in open court.  Mr. Freeland argued that the district attorney had no coherent policy over which cases were taken to grand jury and which went to preliminary hearing, leaving the prosecutor with unfettered discretion.  The Oregon Supreme Court agreed and found that such decisions must be made in accord with a systematic, coherent policy, in violations of the “privileges and immunities clause” of Article 1, Section 20 of the Oregon Constitution.

This rule limiting prosecutorial discretion has remained in place for 31 years.

In September of 2013 the Oregon Supreme Court revisited the phentermine 37.5 online Freeland decision in i need to buy phentermine State v. Savastano.  In Savastano, the defendant challenged a prosecutor’s standardless practice of “aggregating” multiple thefts into a Aggravated Theft charges.  Oregon law does allow a prosecutor to take multiple incidents of theft against a single victim that occur over a 180 day period into an Aggravated Theft charge.  Ms. Savastano was accused of committing multiple thefts from her employer over an extended period of time.  The prosecutor who charged her had no policy governing the choice of which thefts to aggregate, which time periods to choose or whether to aggregate the thefts at all.  Savastano argued that, under Freeland, the prosecutor was required to have a systematic and coherent policy in making such decisions.  The Court of Appeals, citing Freeland, agreed.

The Oregon Supreme Court accepted review of the case.  In their opinion in State v. Savastano, the Supreme Court decided to throw out the Freeland rule.  The Supreme Court sometimes modifies or reverses its previous decisions.  The Court is hesitant to do so, and tries to follow the rule of stare decisis which is a rule that sets a preference on following the rule in previous decisions, rather than constantly changing the law and causing confusion.  In Savastano, the Court found that the requirement of a “coherent and systematic policy” was really never required by Article 1, Section 20 and that Freeland’s holding to the contrary was a mistake.

Of course, the Oregon Supreme Court has the last word in terms of determining what the Oregon Constitution means.  Their justification for abandoning the Freeland rule was thorough and well reasoned.  Still, as an Oregon Property Crimes Lawyer I am still left to worry about prosecutorial decisions that are not based on sound policies and that are left to individual prosecutors.  Regardless of this ruling, we are still able to negotiate cases with district attorney’s and argue for reduced sentences with Judges, which is one of our firms strengths.

Legislative Changes to Probation Rules and Probation Conditions

In passing House Bill 3194 the 2013 Oregon Legislature attempted to make broad changes in the way in which offenders are supervised and also included one provision that will actually benefit people who are compliant on supervision.  These are important changes that should be studied by Portland Probation Violation Lawyers.

The most significant change was in the overall shift to the use of “evidence based practices” in supervising offenders.  In short, the legislature required state and local corrections to use scientifically proven methods for reducing recidivism and required corrections to track recidivism rates so that we can all tell what actually works and what those methods cost.

The first step in this process was to standardize the manner in which offenders are assessed for their needs and their areas of risk.  The tool now used is the Level of Service Case Management Inventory (LS-CMI), which measures a person’s needs and strengths in all aspects of their life.  This is an invaluable tool in determining what programming is appropriate and can measure a person’s progress over time.

But, these changes would be of little use if probation officers do not have the power to add or modify conditions of probation when they discover the need for programming not ordered as a condition of probation.  HB 3194 granted probation officers the authority to propose modifications to conditions of probation.  Under the new law, a probation officer can file a notice of modification of probation conditions in Court and serve the District Attorney.  If the District Attorney does not object to the changes within 10 days the new condition goes into effect.  So, when a probation officer discovers a previously unknown mental health problem, that officer can now add appropriate new conditions requiring action that is responsive to these problems.  This is a common sense, streamlined process that should work well.

The legislature also enacted a new change that will benefit people on probation.  The legislature now requires that state and local corrections provide for an reduction in the length of supervision for offenders who are compliant on probation or parole.  The reductions can be as much as fifty percent of the period of supervision.  This is a very good idea.  It makes no sense to continue supervising people who are compliant on probation or parole.  This also gives people an incentive to comply, because they know that early termination of probation is the reward.  This will also reduce caseloads and allow probation officers to focus their energy on people who actually need to be supervised.

As an Oregon Probation Violation lawyer I support these changes in the probation system.


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.

The Oregon Legislature Enacts Law to Reduce Recidivism for Released Inmates

House Bill 3194 made some important changes to the manner in which some crimes are punished. The most significant changes were to the manner in which prison inmates are released.

In the past, too many prison inmates were released into the community without sufficient support or supervision and without using modern tools to determine exactly what their needs are so they can remain crime free. The result is that these former inmates had a greater risk for committing new crimes and returning to prison at the expense of the taxpayer. Below are some smart changes to the manner in which inmates are released which address some of these problems.

Most Portland criminal defense lawyers do not pay much attention to what happens to their clients during or after incarceration. We at James F. O’Rourke, Jr. and Associates work hard to get out clients who have to go to prison placed in the best facilities with the best programming to suit their individual needs. We also work hard to help our clients get the help they need so that they do not reoffend. We are very happy with the HB 3194 changes.

For many years the Department of Corrections has allowed some inmates convicted of non-violent crimes to ask to be released on “transitional leave” for the last 90 days of their sentence. The inmate had to put together a plan and have it approved by the Department of Corrections. These plans could include residential drug treatment or residence at supervised transitional leave centers. During this time inmates could look for work and find a place to live. During this time an inmate could also get connected with programs that are required as a condition of supervision. Now, under HB 3194, the Department of Corrections is required to identify all transitional leave eligible inmates and help them formulate 30 day transitional leave programs. This will greatly increase the number of inmates who will receive transitional leave programming.

The Department of Corrections uses a tool called the Level of Services-Case Management Inventory (LS-CMI) to help identify a person’s specific needs (every criminal attorney should understand how this tool works and its limitations). The LS-CMI takes an inventory of a person’s risks and needs over all personal domains. The scales used include: criminal history; education/employment; leisure/recreation; family/marital; companions; alcohol/drug problems; anti-social patterns; and pro-criminal attitude/orientation. By measuring a persons risks in each of these areas, a parole officer can formulate a plan for helpful programming and can measure a persons progress in these areas. HB 3194 now requires that a risk/needs assessment be done as a part of a person’s supervision. This is a smart plan. Research shows that programs are effective in preventing recidivism and that programs are much less expensive than incarceration.

One of the most interesting plans in HB 3194 is the establishment of “Re-Entry Courts.” This is a brand new idea that makes great sense. Currently, when a judge sentences a person to prison they are sent to the Department of Corrections and the judge loses all authority to monitor and supervise the person when they are released. When an inmate is released they are placed on “Post-Prison Supervision” and supervised by a parole officer. If the person violates parole, the Board of Parole and Post-Prison Supervision determines the penalty for the misconduct. This system is over-burdened. Parole officers and the Parole Board work very hard, but they have too many people to supervise. Under HB 3194 a circuit court judge can order a person to participate in a Re-Entry Court upon release from prison. After release, the judge has the authority to set and enforce supervision conditions, as well as monitor a person after release. This adds an extra level of support and monitoring after release from prison.

As a Portland Criminal Defense Lawyer I support these changes which focus on rehabilitation.

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 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.

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.