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Category: Oregon Laws

Alternatives to Straight Jail Sentences In Felony DUII Cases in Oregon

As a Gresham and Portland DUII lawyer, I actively seek sentencing solutions for my DUII clients which allow them to maintain family, employment, financial and treatment stability while serving alternative “jail” sentences in DUII cases. I negotiate and argue for the best options for my clients.

Treatment courts can be a good option for the resolution of a Felony DUII case or a case where the client is exposed to a lengthy jail sentence.

Eighteen years ago, Multnomah County began an experiment with the use of treatment court for DUII offenders. The DUII Intensive Supervision Program (DISP) directed offenders into a highly structured probation with regular appearances in court to monitor progress and compliance. The touchstones of this program are accountability and honesty. Participants are encouraged to disclose relapses and are given a range of sanctions, which are more severe for those who are not honest about their alcohol or drug use. Program participants remain under supervision from two to five years.

The DISP Program has been highly successful. In the last 17 years almost eighty three percent of the graduates have avoided new DUII convictions and almost eighty nine percent of graduates do not reoffend in the five years after graduation. The goal of the DISP program is to offer meaningful treatment to DUII offenders and to help them develop a stability in all aspects of their lives.

Ballot Measure 73 was enacted in 2010. It required judges to sentence people convicted of Felony DUII to a mandatory minimum of 90 days in jail without any reduction in the sentence. DUII treatment courts judges tried suspending or commuting all or part of the mandatory 90 day jail sentence for treatment court participants. The Multnomah County District Attorney appealed these actions and the Court of Appeals agreed that the 90 day sentence must be imposed.

The DISP Court judges have presented Senate Bills 356 and 357to the 2015 legislature, online phentermine prescription consultation which would allow treatment courts to substitute transdermal alcohol detection monitoring for the jail sentence called for under Measure 73. These “SCRAM” bracelets can detect alcohol use by monitoring a person’s skin for signs of alcohol use. These devices provide immediate notice to probation supervisors if a person uses alcohol. The Measure is opposed by the sponsor of Ballot Measure 73 and the Mothers Against Drunk Driving.

buy adipex online malaysia In this case, there is a difference between being tough in sentencing DUII offenders and being smart in sentencing DUII offenders. The solution for serial drunk drivers is to stop drinking. The foundations for long term sobriety are financial, family stability and treatment. Treatment court programs recognize this and want to provide offenders with the tools to stop drinking and stay sober uninterrupted by jail.

As a 36 year Gresham and Portland DUII lawyer I support the mission of treatment courts in promoting public safety by helping people achieve long term sobriety. I support Senate Bills 356 and 357.

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.

No Warrantless Forced Blood Draws in Ordinary Oregon DUII Cases, Says U.S. Supreme Court

When Tyler McNeely was stopped by a Missouri police officer he must have known that he was in big trouble.  He had two prior DUII convictions and a third conviction would be a felony.  The officer smelled alcohol and asked him to perform field sobriety tests.  McNeely refused a portable roadside breath test.  When he was arrested he told the officer that he would refuse to take a breath test at the police station.  The officer transported Mr. McNeely to a hospital and, over McNeely’s objection, had a hospital lab technician draw blood.  The officer did not even try to secure a warrant and instead relied on the “exigent circumstances” exception to the warrant requirement.  The theory was that since alcohol dissipates from a person’s blood stream over time, there was an emergency that required immediate action in order to preserve the evidence of intoxication.

McNeely was tried and convicted in a Missouri trial court.  The Missouri Supreme Court reversed his conviction, finding that the mere fact that alcohol dissipates is not enough to justify an emergency forced blood draw, particularly in an ordinary DUII.

The question raised in this case is an important one.  Some state courts have determined that the mere fact that alcohol dissipates is not enough, standing alone, to establish exigent circumstances in a DUII investigation.  Other states, including Oregon, have held that alcohol dissipation establishes an exigency automatically, essentially adopting an exigency per se rule.

The United States Supreme Court agreed to review McNeely’s case in order to settle the split between the states, once and for all.

The U.S. Supreme Court issued their opinion in Missouri v. McNeely on April 17, 2013.  The Court noted that it had previously allowed forced blood draws without a warrant in the 1966 case of Schmerber v. California.  However, Schmerber was a much different case, factually, and involved a serious DUII accident, with injuries, and it was shown in that case that it was not possible to get a warrant in time to get an accurate blood alcohol test.

In McNeely’s case, the Court soundly rejected the argument that alcohol dissipation establishes a per se exigency in a DUII investigation.  The Court noted that drawing blood from a person is a highly invasive procedure.  The Court was clearly troubled with the thought of granting police this authority in a routine DUII investigation.  The Court held that while alcohol dissipation was one factor that could be considered in determining whether an emergency existed, there had to be other factors present.  While the Court did not expressly set those factors out, the severity of the crime being investigated is undoubtedly a factor.   More importantly, the Court held that the police must demonstrate that they could not have obtained a warrant in a timely manner.   The Court noted that technological advances have made things like telephonic warrants possible and that type of warrant can be obtained fairly quickly.  Also, most jurisdictions have a judge assigned to review warrants 24 hours a day.

This is be an important case for Oregon DUII Attorneys.  This case over rules the Oregon Supreme Court which had adopted an exigency per se rule.  The Portland Criminal Attorneys at James F. O’Rourke, Jr. and Associates work to protect our clients’ constitutional rights in DUII investigations.

Oregon Measure 11 Defense Lawyer Supports Proposed to Measure 11 Changes

Governor Kitzhaber and others are proposing the first significant changes to Measure 11 in over a decade.  The Governor’s concern is driven mainly by projected prison costs over the next ten years and the likely need to build and staff more prisons if changes are not made to this 1995 law.

House Bill 3194 proposes a number of modifications.

First, the bill would completely eliminate mandatory minimum sentences for persons convicted of Sexual Abuse in the First Degree, Assault in the Second Degree and Robbery in the Second Degree.  Persons convicted of these crimes would be sentenced under the existing sentencing guidelines and the length of a prison term would be based on a person’s prior record.

Second, the bill would end mandatory adult prosecution of 15, 16, and 17 year olds who are charged with Sexual Abuse in the First Degree, Assault in the Second Degree and Robbery in the Second Degree.  Currently, juveniles accused of these crimes are automatically transferred to adult court.   Ordinarily, a juvenile is entitled to a hearing in juvenile court and could contest being remanded to adult court.  If passed, this bill would restore that process for juveniles accused of these crimes.

Third, juveniles who are sentenced under Measure 11 would automatically be eligible for “Second Look,” which allows juveniles to have a judge review their sentences when they have completed one half to three quarters of their sentence.  If a juvenile has demonstrated good institutional behavior and has made progress with programs, the court has the authority to release the juvenile conditionally and allow them to complete their sentence on probation.

These changes are being opposed by many District Attorneys.  Several District Attorneys believe that the projected expenses for the Department of Corrections over the next ten years are overstated.  The supporters of House Bill 3194 believe that leaving Measure 11 unchanged will require the construction of at least one new prison and require hundreds of millions of dollars of new spending.  The supporters of HB 3194 believe that the changes would allow the Department of Corrections to reduce its budget by five percent over the next ten years, rather than increase the budget.

Changing Measure 11 will be a real challenge, since any modifications of Measure 11 must be approved by a two thirds majority of both the House and the Senate.

As an Oregon Criminal Defense Attorney who represents persons charged with Measure 11 crimes, I support the changes proposed in House Bill 3194.

U.S. Supreme Court Upholds Property Rights And Limits Searches By Drug Sniffing Dogs

This is an important ruling for Oregon Drug Crimes Attorneys as it applies to searches in Oregon.

In 2006 Joelis Jardines’ Florida home was approached by two Miami-Dade police detectives.  The two detectives approached the front door, but they did not knock.

Under ordinary circumstances, there is nothing unusual, or illegal, with the police entering a person’s property to approach the front door.  The police are granted the same right to enter property that a peddler or a girl scout exercises when they sell their wares.  In fact, the police refer to such investigatory contacts as a “knock and talk.”

The problem in Jardines case was the dog the Detectives brought with them.  Their four legged friend was no ordinary animal, but a highly trained drug sniffing canine.  The dog “alerted” at the front door, indicating that one of several illicit drugs was present in the home.  The Detectives retreated from the porch and obtained a search warrant based on the dog’s observations.  When they executed the warrant, the Detectives found growing marijuana on the premises.

The case, Florida v. Jardines, made its way to the United States Supreme Court.  The case was decided on March 26, 2013.

The majority opinion was written by Justice Antonin Scalia, perhaps the most conservative person on the Supreme Court.  Justice Scalia observed that the Court has long held that a person’s residence and the surrounding area are private and protected from unreasonable intrusions by the government.  He noted that, while the police are allowed to approach a front door of a person’s home, they are not allowed to engage in conduct that is beyond that which a person would expect from a visitor.

Applying that concept to the conduct of these Florida Detectives, Justice Scalia held that bringing a police dog on a visit to a person’s front door goes far beyond the scope of the customary invitation one gives to those knocking on their door.

Justice Scalia stated: “[I]ntoducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else.  There is no customary invitation to do that.  An invitation to engage in canine forensic investigation assuredly does not inhere in the very act of hanging a knocker.  To find a visitor knocking on the door is routine (even if sometimes unwelcome); to spot that same visitor exploring the front path with a metal detector, or marching his bloodhound into the garden before saying hello and asking permission, would inspire most of us to – well – call the police.”

This is a common sense ruling that firmly backs property rights.

James F. O’Rourke, Jr. is an Oregon Criminal Defense Lawyer who represents persons who have been arrested as a result of searches by drug sniffing dogs.

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.

Oregon Considers Increasing Treatment Time for DUII Offenders

The State Department of Human Services is considering making some significant changes in the length of treatment for persons convicted of DUII. Currently, a person convicted of DUII is required to participate in treatment for a minimum of 90 days, remain abstinent from all drugs and alcohol during that period of time and submit to urine testing to confirm abstinence.

Under the proposed rules, there would be a minimum of 50 hours treatment over six months for first offenders and 100 hours of treatment over one year for a person convicted of a second or subsequent DUII. These changes would substantially increase the cost of treatment for DUII offenders, who would be forced to pay for the added treatment sessions and the additional urine testing.

Increasing treatment duration can have positive effects for persons convicted of DUII who suffer from alcohol or drug dependence. However, a significant number of people who receive DUIIs are not in need of extended treatment, and only need education and a short exposure to the treatment environment.

At James F. O’Rourke, Jr. and Associates we carefully review our clients’ needs and history and help our clients select qualified treatment providers who meet their individual needs and satisfy the requirements of a DUII Diversion or treatment ordered after a conviction.

Combination DUII – Alcohol and Controlled Substances

Oregon law has special requirements for DUII prosecutions that are based on an allegation that the person was under the influence of a combination of alcohol and a controlled substance. In order to proceed on that theory the state is required to make that allegation specifically, in writing, in the charging instrument.

These hybrid DUII charges have become more common in recent years as law enforcement has become better trained to screen for drug intoxication. Every police agency now has one or more “Drug Recognition Experts;” officers who are specially trained to detect drug use. The testing is very detailed and involves taking vital signs, observing pupil response to light and looking for other physical signs of drug use. It is not unlike having a basic physical examination at your doctor’s office. A trained Drug Recognition Expert who properly administers the battery of tests is allowed to offer an opinion at trial, as an expert, that a person was under the influence of a certain type of drug and alcohol.

While a Drug Recognition Examination is important in a DUII/Drug prosecution, it is not absolutely necessary for the state to obtain a conviction. In a recent case, the Oregon Court of Appeals held that an admission to recent drug use with alcohol use can support a conviction even without a Drug Recognition Expert. In State v. Harmon (Decided December 15, 2010), the Court dealt with a case where an officer observed a subject who appeared “dazed” and performed poorly on field sobriety tests. Also, the defendant admitted to consuming marijuana four hours before the arrest, as well as consuming alcohol, although there was not a strong odor of alcohol on his breath.

The Court of Appeals held that the admission of consumption of marijuana four hours before, the admission of drinking and the poor field sobriety tests was enough for a jury to find that person guilty of DUII, even though there was no Drug Recognition Examination or testimony of a Drug Recognition Expert. This was true even though the jury had no evidence before it on how marijuana and alcohol interact to produce intoxication.

The lesson is to exercise care when using any amount of alcohol when taking controlled substances, including those prescribed by a doctor. The police are waiting and trained to detect and prove that your impaired by a combination of alcohol and drugs.

As Portland DUII and Drug Crime attorneys, we at James F. O’Rourke, Jr. and Associates are committed to the vigorous defense of DUII cases based on impairment cause by the cumulative effects of alcohol and controlled substances.

Oregon Bans “Spice,” Feds File Notice to Follow Suit

On October 14, 2010 the Oregon State Board of Pharmacy completed its evaluation of the “synthetic marijuana” that is sold in shops as “Spice” or “K2.” These substances were first marketed as incense in 2008, but have come to be widely used as a substitute for marijuana. These “synthetic cannabinoids” were developed for research purposes but have not been approved for human consumption by the Food and Drug Administration.

The Board found numerous instances of persons suffering from hallucinations, high blood pressure, irregular heartbeat, seizures and vomiting among people smoking the “incense.” Given the risk to public health, the Oregon Board classified synthetic marijuana as a Schedule 1 controlled substance, meaning that the substance has no legitimate medical use. The rule took effect on October 15, 2010.

This action effectively makes the possession of any amount of “spice” a Class B Felony, subject to the same penalties for the possession of substances such as heroin.

On November 24, 2010, the Federal Drug Enforcement Administration filed a notice of intent to make a temporary rule placing synthetic marijuana in Schedule 1, making possession of the substance illegal under federal law. The new rule takes effect 30 days from the date of the announcement and will remain in effect for one year while Congress decides whether or not to make the changes permanent,

As Oregon Drug Lawyers we at James F. O’Rourke, Jr. And Associates have over thirty years of experience representing persons accused of drug crimes in State and Federal Courts.