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Category: Major Traffic Crimes

Criminal Law Changes Try To Flat Line Prison Population Growth

phentermine 10mg 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.

Legislature Approves Some of Governor Kitzhaber’s Prison Reform Bill

House Bill 3194 started out as an ambitious plan to modify Measure 11 and to end the mandatory prosecution of juveniles in adult court.  Unfortunately, none of the changes to Measure 11 survived during the amendment process.

Significant changes were made in the way some crimes are punished and in the process in which prison inmates are released back into the community.

HB 3194 removes marijuana and hashish from the sentencing enhancements for manufacturing or delivering “substantial quantities” or in the course of a “commercial drug offense.”  As a result, the seriousness of these crimes for the purposes of Oregon’s sentencing guidelines is dramatically reduced.  It will be very difficult for a person to be sent to prison for a marijuana manufacturing or delivery crime, regardless of quantity.  This was good news for Oregon Drug Crimes Lawyers.

HB 3194 also lowers the crime seriousness of Felony Driving While Suspended, as long as the underlying suspension did not result from a vehicular homicide.  In addition, Robbery in the Third Degree and Identity Theft have been removed from the minimum sentence provisions of the Repeat Property Offender’s Act.

HB 3194 also makes some positive changes in formulating release plans and supervising inmates when they are released from prison.  In the past, some prison inmates were eligible to request “transitional leave,” where an inmate would be released early at the end of a prison sentence and live in a structured environment while they find work and a place to live.  Now the Department of Corrections is required to formulate transitional leave plans for eligible inmates.

The Bill also gives a sentencing judge the authority to order that a person be released to a “re-entry court” upon their release from prison. A re-entry court would have the authority to set conditions of supervision, monitor the former inmate and impose jail sanctions for violations of supervision conditions.  This change allows a re-entry court judge, rather that the Parole Board, to supervise and monitor released inmates.

HB 3194 also requires the Department of Corrections to use scientific tools to determine the risks and needs of released inmates.  These “Risk/Needs” tools are very effective in identifying underlying problems, such as drug dependence, and other destabilizing factors that lead former prison inmates to re-offend.  Also, the Department of Corrections is required to track outcomes and determine what strategies and programs actually work in reducing recidivism.

As a Portland, Oregon Criminal Defense Lawyer, I support these changes in sentencing rules and in the manner in which inmates are released.  The assistance in reintegrating released inmates into the community should be particularly effective in keeping people from returning to prison and keeping track of “what works” is just common sense.

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.

Random License Plate Checks by Police May Be Unconstitutional – A Potential Impact on Many Drug Cases and Oregon DUII Cases

The Oregon Supreme Court issued two unusual rulings in a pair of cases on January 10, 2013 that were pending before the Court. State v. Davis and State v. Lumpkins were “affirmed by an equally divided court,” meaning that the original rulings were affirmed because the votes on the court were tied. This is a fairly rare occurrence and happens only when the seven member Court is short one member, creating the possibility of a tie vote.

Both Davis and Lumpkins dealt with the issue of whether or not the police could randomly run license plates from their computerized mobile data terminals to find criminal activity. These random license plate checks are a routine practice for almost all police agencies. The objective, as stated by the police, is to identify stolen vehicles, people who are driving while suspended and people who have outstanding warrants. In fact, the Portland Police and the Washington County Sheriff’s Office each have a special unit that uses license plate recognition technology. This technology allows the police to simply drive through a parking lot and run every plate automatically through DMV and the Law Enforcement Data System.

The attorneys for both Lumpkin and Davis moved to suppress all evidence gained in these stops based on random license plate checks. They advanced two arguments.

First, they argued that random license plate checks were searches that required a warrant or an exception to the warrant requirement under Article I, Section 9 of the Oregon Constitution and that these searches require probable cause or a reasonable suspicion that some violation of the law was occurring.

Second, they argued that these completely random searches violated the “privileges and immunities clause” of Article I, Section 20 of the Oregon Constitution. Both Davis and Lumpkin argued that by randomly and arbitrarily commencing a criminal investigation people were being singled out for investigation and treated differently from other members of the public. At the very least, they argued, the police should have some sort of systematic policy governing when license plates should be checked.

The ACLU filed a “friend of the court” brief. The ACLU pointed out that such practices raised grave concerns that people would be targeted by race or economic status. The police, they argued, could conduct these license plate checks simply because someone looked out of place or because their car looked like a “junker.” The ACLU argued that these checks need to be limited and controlled by some systematic policy in order to hold the police accountable if they used impermissible reasons for initiating a license plate check.

The State of Oregon argued that running a license plate is not a search and that people have no protected privacy interest in this information. Further, the State argued that there is no legal bar against a random license plate check and that there was no proof of any unequal treatment related to the random checks.

Both trial court judges in Davis and Lumpkin denied the Motions to Suppress. The Oregon Court of Appeals upheld the trial court rulings, although there was a dissenting opinion.

Because the Oregon Supreme Court could not produce a majority to affirm or reverse, the issue of the permissibility of random license plate checks remains unresolved. It may take several years for another case to rise from the trial court to the Supreme Court on appeal.

Until then, this issue will come up in Drug cases, DUII cases and all criminal cases which are based on a random license plate check.

As Portland criminal defense lawyers, we deal with many cases where the constitutionality of a traffic stop can be a critical issue. This is particularly true in cases involving drug charges and DUII. Mr. O’Rourke has been a Portland Oregon drug crimes defense lawyer since 1978.

Lifetime Drivers License Revocations – A Small Ray Of Hope

Since 2003, Oregon Law has provided that a person convicted of DUII for a third time must have their license revoked for their lifetime. The language of this statute could be interpreted to include all DUII convictions a person has received during their entire lifetime in any state.

DUII defense lawyers argue that not all prior DUII convictions should be counted for purposes of the lifetime revocation statute.

Over the years, Oregon law has provided for different penalties for DUII. In the 1970’s and early 1980’s, a person who drove with a blood alcohol concentration of .15 or less was subject only to a fine and the offense was treated as a non-criminal infraction. Persons with a blood alcohol concentration over .15 were subject to criminal penalties.

In 1985, the Oregon Legislature’s comprehensive revision of the Vehicle Code and amended many of the traffic laws. This legislation also lowered the maximum blood alcohol concentration to .10 (and later .08) and made all DUII charges crimes.

The 2003 lifetime revocation statute provides that the revocation is triggered by previous violations of ORS 813.010, the DUII statute that was renumbered in 1985.

DUII defense lawyers raised the question of whether pre 1985 convictions should or should not count as prior convictions for purposes of the lifetime revocation statute.
In State v. Kellar, ___ Or ___ (2011)(Slip Op, February 17, 2011) the Oregon Supreme Court directly addressed the first of these questions. The Supreme Court held that criminal violations of the pre 1985 DUII statute do count toward the lifetime revocation. The Court noted that there is still an open question as to whether or not non-criminal infraction DUII convictions would count, but declined to address the question because it was not necessary for them to answer it for the purposes of the Kellar case.

Eventually, this issue will be decided by the Appellate Courts in Oregon. Until then, the issue should be raised and argued whenever the State is trying to persuade a judge to count one of these convictions and impose the lifetime revocation.

If you are facing a lifetime revocation of your driving privileges because of an older DUII infraction conviction or have a conviction in another state which might be an infraction, you would be well advised to consult a lawyer to see if the older conviction really counts in calculating whether or not you have three qualifying DUII convictions.

As Oregon DUII lawyers, we at James F. O’Rourke, Jr. And Associates carefully examine all prior DUII convictions for irregularities which may prevent the convictions from being used to revoke driving privileges for life.

When Can a Police Officer Stop Your Vehicle?

A police officer has the right to stop your vehicle if he has probable cause to believe you have violated a traffic law, including both driving and equipment violations.

Many DUII cases begin after police officers have pulled people over for touching or driving across fog lines or center lines on the road, which constitutes the traffic infraction of Failure to Drive Within a Lane.

In a recent case from Washington County, the Oregon Court of Appeals decided the issue of whether having your vehicle touch a fog line or center line, without crossing over it, constitutes Failure to Drive Within a Lane and gives a police officer probable cause to make a traffic stop.

In that case, the defendant was convicted of driving while under the influence of intoxicants (DUII). A police officer saw the defendant come out of a bar at about 1:00 a.m. and drive away. As the officer followed, defendant’s truck tires went onto the double center line, then shortly after that, he observed the pickup’s right tires drive briefly onto the white fog line. The tires never completely crossed over the lane lines. Where defendant drove onto the fog line, the officer later described, “[y]ou can’t really go over the fog lines on that location without going off the road. The fog line’s real close to the edge of the roadway, so the tires just drove onto the fog line”.

As defendant negotiated a curve a bit further down the road, the officer saw defendant’s right tires drive onto the fog line two more times. At that point, he had been following defendant for “[m]aybe a half mile to a mile.” The officer then stopped defendant for failure to drive within his lane and on reasonable suspicion of DUII.

During the stop, the officer smelled alcohol on defendant’s breath. He also noticed that defendant had poor enunciation and bloodshot eyes and that he was swaying and stumbling. He had defendant perform field sobriety tests, which defendant failed. He also administered a breath test to defendant, which disclosed a blood alcohol content of 0.15. Defendant was charged with DUII.

Defendant went before the court and challenged the officer’s stop of his car because the stop violated his right to be free from unreasonable searches and seizures. He asserted that the officer did not have probable cause to believe he was intoxicated after running his tires over the lane markers a total of four times during that stretch of driving. But the trial judge sided with the state and rejected the defense challenge, saying that driving onto the lines four times gave the officer sufficient reason to stop defendant.

The Court of Appeals, in State v. Vanlom, in an opinion released on Dec. 16, 2009, agreed with the trial judge. A police officer is “‘not required to eliminate all possible lawful explanations for conduct that reasonably appears to violate the law,'” and it is enough “[i]f the officer observed an action that he believed was an infraction and that belief is objectively reasonable.”

The phrase ‘within a single lane’ does not mean ‘on’ the lines that mark or divide the lanes. Rather, the statute requires that drivers stay ‘within’ the lines that mark the lanes. Defendant drove onto the lane lines four times over a relatively short distance. In fact, according to the officer’s description, when defendant first drove onto the fog line, he nearly drove off the road, given how close the line was to the edge of the roadway. Because there was no evidence that something beyond defendant’s control prevented him from operating his vehicle in his lane without touching the lane lines, that officer had probable cause to stop defendant for a violation of the law that requires drivers to drive between the lines.

Oregon DUII Lawyer James F. O’Rourke is experienced in litigating stop issues. If the stop is found to be illegal this can lead to the Court refusing to allow the admission of some or all of the evidence gathered by the police during the stop, which can cause the dismissal of the case. This is particularly important in DUII and Drug cases.

2009 Legislature Restricts Use of Cell Phones While Driving

On January 1, 2010, Oregon joined the growing number of states restricting the use of cell phones while driving. The 2009 legislature expanded Oregon’s cell phone driving restrictions in the wake of new data showing that distracted driving was a major problem on Oregon highways. In fact, texting while driving has been shown to be more dangerous that driving under the influence of intoxicants (DUII).

Prior to 2010, the cell phone restrictions applied only to persons under 18. The thought previously was that young drivers lacked the skill and experience to deal with the distraction of using a phone while driving. Now the thinking is that even adults are a risk when distracted by a cell phone.

Curiously, the new law appears to forbid dialing your phone, even if you have a hands free accessory. It allows one only to turn the device on or off or to activate functions, but no dialing. So, pull out your cell phone manuals and figure out how to use the voice activated dialing features of your device.

The new law forbids the use of a cell phone while operating a motor vehicle. There is an exception for a person who is using a hands free device that allows them to keep both hands on the steering wheel.

There are also exceptions for emergency personnel and for people who are using a device in the course and scope of their employment. The exception for employment related use is ambiguous. Do they mean just delivery drivers or does the exception apply to a lawyer who is talking to a client on his way to court? This will be an area for litigation in traffic court.

Also, Prosecutors may argue that in some circumstances where cell phone use results in observable bad driving, the incident should be charged as Careless Driving or the crime of Reckless Driving As a Portland Criminal Defense Lawyer, Mr. O’Rourke represents persons charged with violating ORS 811.507, Operating a Motor Vehicle While Using a Mobile Communication Device, ORS 811.140 Reckless Driving and ORS 811.135 Careless Driving.