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.
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.
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.
Every day in Oregon police officers have encounters with drivers and passengers of vehicles during routine traffic stops. Often the police will develop a suspicion that the stopped drivers or passengers have drugs in their possession either in the vehicle, on their persons or in their belongings (backpacks, suitcases etc). The police officers may try various tactics to get people to give permission to search to search the vehicle, their property or their persons for drugs.
There are State and Federal constitutional protections of a person’s right to privacy – the right to be left alone – including the right to be free from unreasonable searches and seizures. If the police violate those rights the State cannot use whatever they find as evidence in court.
On December 9, 2009, the Oregon Court of Appeals issued its decision in State v. Mathis, which was a case which involved a traffic stop that turned into a drug investigation. In that case, the police violated the passenger’s right to not have her person seized and the drugs the police found in her purse were not allowed into evidence because her consent to the search was given in the during an unlawful seizure. Since the drugs were not allowed into evidence, there was no evidence to convict her of a drug possession crime.
The defendant was a passenger in a car stopped by the police in Salem. Officer Simons initiated the stop after he observed the driver commit several traffic violations. Ultimately, Simons arrested the driver for driving under the influence of intoxicants. Meanwhile, the passenger remained in the car. She was not ordered out of the car nor told to remain in the car.
Other officers arrived, and one of them tried to determine if the passenger was impaired by drugs. He asked her to get out of the car. Although the passenger did not appear to be under the influence of controlled substances, Banks was “curious” to see if the passenger possessed any illegal drugs on her and asked her if she had any drugs. The passenger replied that she did not. Banks then asked permission to frisk the passenger. She told Officer Banks that she did not want to be touched, but turned out her pockets to show Banks their contents. At that point, Banks decided that he would not let her go until he determined whether or not she possessed drugs.
Banks next requested permission to search her purse. Without responding, the passenger started to rifle through her purse. Banks, fearing that she may have had a weapon in her purse, told her to stop and asked again if he could search her purse. The passenger said, “[N]o.” Banks then asked her, “If I call a drug dog here[,] is he going to alert on your purse?” The passenger told Banks to “[c]all a drug dog.”
Banks arranged to have a drug detection dog brought to the scene from The Dalles. He told the passenger that a drug dog was en route, but did not tell her how long it would take to arrive. Banks then told her that, “if she had a small amount of drugs in her purse and if she was cooperative and provided them to us[,] that she would be treated more than fair.” The passenger said “okay,” handed her purse to Banks, said that she thought she had some methamphetamine in her purse. Banks found a small amount of methamphetamine in her wallet.
The Court of Appeals said that Officer Banks’ search of the passenger’s purse was unlawful. His conduct of informing the passenger that a drug dog was on its way was a show of authority such that any reasonable person would believe that he or she was not free to leave. Accordingly, defendant had been unlawfully “seized” for purposes of Article I, section 9, of the Oregon Constitution by the time that she handed her purse to Officer Banks and indicated that there was methamphetamine inside.
Drug charges are serious matters in Oregon. Consult with an experienced Portland Criminal Attorney before you make any decisions about pleading guilty to a drug crime charge.
Eligibility requirements for Oregon’s DUII Diversion Program have again been changed by the Oregon Legislature. Alterations to Oregon DUII laws are among the most common areas for new legislation, resulting in changes every two years.
Oregon’s DUII Diversion Program was created in 1979, at the same time the Legislature changed the law to make all DUII’s a criminal offense. Prior to 1979, a DUII with a breath test under .15 was not a criminal offense. In 1979 they lowered the maximum blood alcohol level to .10 and created Diversion as an alternative.
Diversion is a one year deferred sentencing program. The accused is found guilty of DUII but not sentenced for one year. During that one year period the person is required to have an alcohol evaluation and complete treatment as directed at their own expense. There are fees for entry into the program and a mandatory Victims Impact Panel.
Under current law a person who is arrested for DUII is eligible for Diversion if there are no injuries to other people associated with the offense, the person has no pending charge of DUII murder, manslaughter, aggravated vehicular homicide, criminally negligent homicide or assault involving a motor vehicle and the person does not hold a commercial drivers license.
Under current law there is also a “10 year rule,” which means that a person is ineligible if, in the last ten years they have:
A. been convicted of DUII in Oregon or any other state;
B. they have been convicted of an alcohol related driving offense other than DUII in another state; or
C. if they have participated in a DUII Diversion Program or Diversion-like program of any kind for any crime in the last ten years.
The 2009 legislature has now made two significant changes in the law. First, they extended the “10 year rule” to a “15 year rule.” More significantly, the legislature added an additional disqualification: a person must not have been convicted of any other traffic crime in the last 15 years.
The change in the “10 year rule” has been proposed in several past legislative sessions. However, the “no other traffic crimes” restriction is a major change in existing law. This would mean the persons convicted of criminal Driving While Suspended or Reckless Driving would be ineligible for Diversion, as well as anyone convicted of any other major traffic crime.
When Diversion was created in 1979 the legislature was concerned about offering incentives to people to explore rehabilitative alternatives to conviction of a crime. These changes are further evidence of the shift away from an emphasis on rehabilitation toward a “punishment first” philosophy. This change was sponsored and recommended by the Oregon District Attorney’s Association.
This post relates to persons receiving an Oregon DUII.
In 1999 the Oregon Legislature created the new crime of Felony DUII. Under that law, persons who were convicted of their fourth DUII in a ten year span had the offense elevated to a Class C Felony rather than a misdemeanor. However, the law was drafted so as to exclude DUII convictions in Juvenile Court (“Juvenile Adjudications”).
Effective January 1, 2010, Juvenile Adjudications for DUII will be counted as one of the three “predicate offenses” in the ten year period for the purposes of charging Felony DUII.
In larger counties, this change may not make much of a difference. For instance, in Multnomah County, persons over 16 who commit traffic crimes have long been remanded to adult court, bypassing the Juvenile Court process. This “standing remand order” automatically transfers all juveniles accused of traffic crimes into the adult process.
This post relates to Oregon DUI laws.
The 2009 legislature made changes in Oregon Law in order to bring the State into compliance with the rules of the Federal Motor Carrier Safety Administration. Since 2002, federal rules have prohibited any state from offering any type of “diversion” or similar program to a commercial license holder, even for citations received while the person was using a private vehicle. The restrictions includes all traffic offenses, even speeding tickets.
House Bill 129 amends ORS 801.307 and defines what it means to “hold a commercial driver’s license” in Oregon. Under the new law “hold” means that a person has a commercial drivers license that is not expired, or expired for less than one year. A person “holds” a CDL, even if it is suspended, as long as it is not revoked.
This change highlights one of the common traps for the unwary in DUII cases. We have seen many clients who have a CDL but have not driven commercially for years. Often they simply renew the CDL with the thought that they may use the privilege again one day. However, if such a person receives a DUII, they are barred from the DUII Diversion Program because of the dormant CDL.
Initially, there was substantial litigation about what was, and was not, a “valid” CDL, litigated in the context of what it meant to “hold” a commercial drivers license. Most of these dormant CDL licensees hadn’t filed the required medical certifications for years and could not have driven commercially at the time of their DUIIs. This issue has been mostly settled for DUII Diversion eligibility for the last two years.
This legislative change sets to rest all of the arguments for a dormant CDL holder who is cited for DUII. Unless your license has been expired for over a year, or has been revoked, you are a CDL driver, even if you haven’t been in a commercial vehicle for decades.
No one plans on getting a DUII. But, persons with a dormant CDL might want to think twice about renewing their CDL. That CDL you are not using will keep you out of alternative programs like DUII Diversion, as well as alternatives to speeding and seatbelt tickets.
This is a good example of a rule that is well intended but overly broad. Obviously, it is a good idea for employers and the public to know the true driving record of a person who regularly operates large commercial vehicles or handles dangerous cargo. But, when the law effects a person who is not an active commercial driver it crosses over into unfairness for an inactive commercial driver who is a first time offender.
This post relates to persons who hold a CDL from any state and received an Oregon DUI.
During the 2009 session the Oregon Legislature made a number of changes in the laws which affect persons charged with or convicted of the crime of DUII in Oregon. One of these law changes went into effect on July 1, 2009.
ASSAULT IN THE THIRD DEGREE ORS 163.165
Effective July 1, 2009, House Bill 3508 (in relevant part) amends ORS 163.165 to make Assault In The Third Degree committed by a person who is DUII a Class B Felony instead of a Class C Felony.
The maximum penalties for a Class B Felony are significantly greater than those for a Class C Felony.
Class C Felony: Prison for up to 5 years and a fine of up to $125,000.
Class B Felony: Prison for up to 10 years and a fine of up to $250,000.
House Bill 3508 also elevates the crime seriousness level for Assault III committed while DUII from a 6 to an 8 on the Oregon Felony Sentencing guidelines Grid.
Under the former law, if a person was convicted of DUII and Assault in the Third Degree arising from the same incident which occurred on or before June 30, 2009, the presumed sentence for the Assault III would have been presumptive probation.
Under the new law which applies to incidents which occur on or after July 1, 2009, the presumed sentence range would be at least 16 – 18 months prison with 3 years of post prison supervision.
This law change does increase the danger of prison incarceration for all defendants charged with committing this crime while DUII in Oregon and seriously increases the prison exposure for persons with criminal records.
We do not expect this to affect most of our clients who want to avoid prison sentences and who are willing to follow our advice about how to accomplish that goal.
Under the former law, for acts committed on or before June 30, 2009 a person charged with Assault In The Third Degree while DUII could get the charge dismissed pursuant to Civil Compromise, or if convicted could get the conviction expunged from his or her record after the expiration of the appropriate waiting period. For acts committed after June 30, 2009, Civil Compromise and Expungement will not available for persons who were DUII when they committed Assault in the Third Degree as it will be a Class B Felony.
There is no apparent reason for this law change except the misguided notion that increasing punishments somehow deters persons from driving while under the influence of intoxicants. The truth is that most people do not know about these laws until AFTER they get arrested, prosecuted and talk to a lawyer.
This new law punishes persons who commit Assault in the Third Degree while DUII more severely than those who commit the same crime, but not while DUII, even though they may be under the influence of intoxicants. For example, a person who recklessly injures another person, for instance, in a bar fight while under the influence of intoxicants is charged with a lower class of crime (Class C Felony), has a lower presumptive sentence and can get the charges dismissed though civil compromise and later can get the arrest or even a conviction removed from his or her criminal record.