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Portland Criminal Defense Attorney Blog

This is the blog for James F. O'Rourke, Jr. and Associates. In this blog we will present information, commentary and our own opinions and philosophy regarding the areas of law in which we practice. It is the purpose of this blog to be informative, helpful and thought provoking. The dynamic interface between the individual and the government is the law. What we mean by that is that when the government sets certain goals, it creates laws to achieve those goals. Those laws touch the lives of the people under the jurisdiction (power) of the government. As criminal defense lawyers, it is our job to make sure that the people we represent receive all of their rights and protections under the law. In some cases, that involves advocating for changes in the law or reinterpretation or correct application of the existing law. As personal injury lawyers, it is our job to make sure that our clients receive all their rights under the law and to secure compensation for the people we represent for injuries and damages they suffer which are caused by the intentional, reckless or negligent acts or omissions of others.

Purchasing Prescription Drugs Over the Internet Can Lead to Serious Criminal Drug Charges

As a Portland Drug Crimes Lawyer, I have seen people get into trouble by acquiring prescription drugs through the internet.  It may seem like a good idea to purchase prescription drugs over the internet or purchase them in foreign countries.  After all, they advertise steep discounts on common drugs and delivery to your home by mail, which is convenient.  However, there are some clear reasons that people should avoid internet drug sales and purchasing drugs in foreign countries.

First, the vast majority of internet drug transactions are illegal.  More importantly, the DEA constantly monitors these companies and takes action against them, both at home and abroad.  They ultimately discover a companies customer list.  If a person has purchased narcotic drugs that transaction constitutes a felony possession of a controlled substance if the drug is a schedule II opiate.  If one gives or sells the drug to another person, that can be a felony drug delivery with serious legal consequences.  If a person delivers drugs to another person and that person overdoses and dies, the seller can be liable for serious Federal charges under the Len Bias Law and a long prison sentence.

Second, a person ordering these drugs has no idea of what they are actually receiving.  Pills that purport to be oxycodone could be another kind of opiate or contain no medication at all.  These drugs are almost never the product of mainstream drug manufacturers.  The drugs are made on commercial pill presses and the makers can imitate the markings of real drugs.  It is common for a drug to purport to be hydrocodone (Vicodin) and actually turn out to be Darvon, a drug that can be dangerous for people who suffer from cardiac arrhythmia or cardiac abnormalities.  Codeine is another cheap and common substitute for any drug that purports to be an opiate.

These illicit “prescription” drug manufacturers make their products in an unmonitored environment with no quality control.  The substitutions of ingredients they make can cause problems for individuals who are allergic to the substituted compound or people who have other health problems that are aggravated by the substituted drug.  These suppliers use crude binders, such as lactose, that can cause gastrointestinal problems.  No one knows the conditions under which the drugs are made and other contaminants are often present in the “offshore” drugs.

As a Portland Criminal Defense Attorney, I caution my clients not to use these sites to acquire drugs.  Obtaining of drugs through these sites is illegal and the risk of getting something other than you ordered is substantial.

Defense of DUII and Criminal Cases in Gresham Oregon

As a Gresham Criminal Defense Lawyer, it is important to understand the structure of the court system in Multnomah County.   The Multnomah County Circuit Court has two courthouses dedicated to handling adult criminal cases.  The primary courthouse is in Downtown Portland on Fourth Avenue.  This building was completed in 1914 and renovated many times over the years.  Most of the criminal and DUII cases are resolved in the main courthouse.  There are also four courtrooms in the Multnomah County Detention Center that handle arraignments and DUII Diversion matters.

For many years, certain criminal cases have been resolved in a satellite Circuit Court located in Gresham.  Last year, the old Gresham courthouse facility was replaced with a new courthouse located on 184th and Stark in Gresham.  The East County Circuit Court handles misdemeanor criminal matters that occur east of 122nd Avenue.  This Court resolves DUII cases, Diversions, Reckless Driving cases and Domestic Violence cases that happen in the eastern part of Multnomah County.  These cases can include prosecutions for misdemeanor violations of the Portland and Gresham City Codes.

The East County Circuit Court has special rules that govern how cases are managed in that system.  These differences can influence whether or not a person might want to move their case to the main courthouse and follow the rules for downtown cases.  It important to consult with an attorney prior to your first court appearance in order to determine whether the case should be moved.  Cases can be moved at the first appearance only.  After that, the case remains in the East County Circuit Court.

If you are cited for a DUII or other misdemeanor crime in Gresham, you will likely be ordered to appear in Court about 30 days after your arrest.  During this time the police reports will be prepared and reviewed by the District Attorney’s Office.  The District Attorney will decide what charges should be filed and will normally file those charges a few days before your arraignment.  People should remember that the charges on the citation they received from the arresting officer are just suggestions to the District Attorney as to what the officer thinks should be charged.  The District Attorney may bring fewer or different charges.  The DA may chose to add charges.  For instance, in a DUII case with an accident, a police officer may only cite a person for DUII and Reckless Driving.  However, after review the District Attorney could choose to add charges of Recklessly Endangering Another Person, Criminal Mischief in the Second Degree (for the property damage) and/or an Assault charge if another person was injured.

As a Gresham DUII lawyer with over 35 years of experience, I know the intricacies of the Multnomah County and Gresham court systems.   This experience pays off for my clients and I always try to get the best possible disposition that satisfies my client.

 

New Rules For Oregon’s DUII Diversion Program

The 2013 legislature made two changes to Oregon’s Diversion Program. The changes were sponsored by the Oregon Criminal Defense Lawyer’s Association and the Oregon District Attorney’s Association. As a Portland DUII Attorney I support these changes.

Diversion is a deferred sentencing program in which a person enters a plea of guilty or no contest to DUII, but the sentencing is deferred for one year. A program participant is required to complete certain requirements, the main one being treatment, with the promise that the case will be dismissed at the end of the one year period if the person complies. The period can be extended once for 180 days.

A diversion participant must pay many expenses. There are court fees for entering the program, fees for a drug and alcohol evaluation and the cost of treatment itself. Many people struggle to pay these costs and end up needing more time to pay off their obligations.

More Time To Pay Costs

House Bill 2627 allows the Court to give a person a little more time to pay the court costs, if the balance is under $500.00. The maximum length of a Diversion agreement is one and a half years. This bill allows the Court, at the end of a year and a half, to set a court hearing outside of the year and a half period to allow a person to pay the remaining court costs. HB 2627 does not specify how long a period of time the Court can allow, but it will likely be one or two months. In the past, the Court had no authority to go beyond the one and a half year limit. I have seen many people terminated from the Diversion Program simply because they could not afford to pay court casts. This is a sensible change that shows consideration for people who are struggling to pay Diversion costs.

Defendants Now Pay Restitution

HB 2627 also allows the Court to impose a restitution obligation if a person caused an economic loss to another person during the course of their DUII. This was not possible in the past because Diversion eligible DUIIs never had a formal sentencing in which the Court could make a determination that restitution was appropriate. Now, the Court can hold a restitution hearing as a part of a Diversion agreement and enter a Judgment against the Diversion participant for any economic loss they have caused to another person.

The best part of this change is that a diversion participant cannot be terminated from the program just because they still owe restitution monies at the end of their Diversion. If a person does owe restitution money at the end of their case, the Court will enter a money judgment against the participant for the unpaid balance. This can then be paid in installments or sent out to a collection agency.

As an Gresham DUII Lawyer I am always pleased to see defense lawyers and prosecutors work together on matters of mutual interest. These changes provide assistance to people with financial hardships and restitution to persons who suffered an economic loss as a result of a DUII driver.

Oxycontin: The Gateway To Heroin And Measure 11 Crime

In my last blog I discussed the hypothetical client named “John.”  John was prescribed Oxycontin after an on the job injury.  Like many clients, he became addicted to this dangerous drug.  Here is the story of how that happened.

John’s Portland, Oregon doctor handed out Oxycontin like candy, raising his dosage over time to the maximum of 80 milligrams per dose.  John’s doctor eventually realized he was over prescribing and got worried about getting in trouble with the medical board.  He prescribed John a month worth of Percocet, a lower dose opiate, and terminated john as a patient.  His doctor did not follow the protocol for titration (a gradual reduction in dosage) or refer him to other doctors who could replace the opiate medicines with another, less harmful, drug.  John began using heroin and sold heroin to pay for his own habit.  He was caught dealing heroin after six months.  He had a number of criminal charges and the district attorney is asking for prison.  This is a common Oxycontin scenario.

Oxycontin came onto the market in 1995.  At that time, Purdue Pharma, the manufacturer of the drug, claimed that this new formulation of oxycodone, was less prone to abuse and that it could be discontinued without withdrawal symptoms. They trained their sales people to make these representations to physicians as they marketed the drug.  Because it is a long acting pain reliever, it became a favorite of physicians for the treatment of long term pain caused by cancer and back injuries.

These representations turned out to be false.  Oxycontin has an extremely high addiction potential.  Withdrawal from long term use of this drug is particularly miserable.  Although Purdue Pharma stopped making these representations in 2001, thousands of lives had been affected.  Also in 2001, the FDA required a “black box warning” that specifically warned of the drug’s high abuse potential.  In 2007, Purdue Pharma pleaded guilty to making these misrepresentation and paid a fine of 634 million dollars.  Three high ranking executive at Purdue Pharma also pleaded guilty and paid millions in fines.

Purdue Pharma has made improvements to this drug.  They have developed a new formulation that can’t be crushed and injected.  It is being phased into the market.  Tie will tell if this safety feature can be defeated.

I have seen the effects of this drug first hand.  Oxycontin leads to a powerful addiction to opiates.  These addicts will do almost anything to acquire opiate drugs.  The craving to acquire and use opiates can become more powerful than the drive to eat or sleep.

As a result, I have seen people who commit crimes by forging prescriptions, stealing from their employers, using and selling heroin and even committing robberies to get opiate drugs.  The end up being charged with forgery, theft, identity theft and even Measure 11 robbery.

Like John in my hypothetical, as a Portland Measure 11 Defense Attorney, I have seen many people with no prior criminal record or addiction history become addicted to opiates and commit crimes as a result of taking legally prescribed pain medications.  Some persons forge or alter prescriptions and get charged with forgery or identity theft.  Others turn to heroin and get charged with delivery or possession of a controlled substance.  Too many resort to robbery, like John, and get charged with Measure 11 robbery.

Of course, these people are devastated and feel like their lives are over.  Fortunately, that is not true.  As a Portland Drug Crimes Lawyer, I have helped many persons through the criminal case process and they have been able to keep their positions in society.  Almost none of my clients are convicted of Measure 11 crimes.

 

Dealing with Measure 11 Cases of Honest Addiction

As a Portland Criminal Defense Lawyer, I see many people who come by their legal problems as a result of the drug addiction driven criminal behavior.  I see many cases where a client has become addicted to opiates as a result of taking prescribed medication in the course of legitimate medical treatment.

Many criminal cases unfold like this.  A person suffers an injury and is prescribed opiate based medications.  The person uses these medications as prescribed and becomes addicted.  They begin to use the medications to avoid withdrawal and use them to cope with life stress.  Often their doctors cut people off suddenly or do not follow the proper medical protocols to titrate (gradually reduce dosage) a person off of the medications.  Often people will try to get the drugs on their own.  Prescription drugs are very expensive on the street and most people run out of money quickly.  Some people acquire the money by theft, forging prescriptions, identity theft and even robbery.  Some turn to heroin as a substitute.

Heroin is cheap and easy to obtain in Portland.  We see people using this drug who one would never expect to see using heroin.  We see people with no criminal history at all engaging in the purchase and sale of heroin in order to support their habit.

Many of our clients have no criminal history and are unaware of the serious punishments and consequences involved in criminal conduct.  Forging prescriptions necessarily involves identity theft.  Repeated acts of identity theft can be added together in a single charge (Aggravated Identity Theft) and lead to a prison sentence.  A Robbery conviction can bring Measure 11 sentences of 70 to 90 months, with no time reduction.

We know how to help our clients access appropriate resources and get into treatment.  We understand how to build a strong mitigation plan and explain exactly how Finally, we present our client’s cases to the district attorney and to the Court and almost none are convicted of Measure 11 crimes.

Consider the story of a hypothetical client named “John.”  John became addicted to heroin and committed a robbery with a firearm to get money to support his heroin habit.  He was facing a 90 month Measure 11 sentence that required that he serve every day, hour and minute of the sentence.  We put together a sentencing mitigation plan.  John’s plan involved treatment of the addiction and a psychological evaluation to show that John was not dangerous.  We use these tools to persuade a district attorney that the focus of the sentence should be rehabilitation, rather than a strictly punitive Measure 11 sentence.  The goal of John’s plan was to structure a sentence that had a short prison term and access to programs that would help him reduce his sentence even further by actively engaging in rehabilitation.

As a Portland Measure 11 Lawyer, I know how to develop mitigation plans based on honest addiction and present these facts to the district attorney.  Just because you are charged with a Measure 11 offense does not mean that you will serve the mandatory minimum Measure 11 prison term.  Strong advocacy in mitigation can sway a district attorney from a Measure 11 sentence.

In most cases, the district attorney decides if the case is subject to a Measure 11 sentence.  My staff and I have worked very hard to develop respectful relationships with prosecutors who work on Measure 11 cases.  Our decades of experience and hard work pay off for our clients.  Almost none of our clients end up with Measure 11 sentences.

Clarification of The Rules for Expungement – Contempt is Not an “Offense”

In Oregon, certain criminal convictions can be expunged (set aside and sealed) after a period of time.  The rule is that a person must be free from criminal convictions for ten years preceding the filing of the motion, not counting the offense one is trying to remove from a criminal record.  This is an important process.  Felony and misdemeanor convictions can have a devastating impact on finding employment and housing.  Being able to clear one’s record after a period of law abiding behavior is important.

As a Portland expungement lawyer, I have encountered problems for clients that have been found in contempt of court.  Some counties treat a contempt conviction as a disqualifying crime for expungement purposes and some do not.  The mixed results between counties has been frustrating for my clients and everyone else trying to navigate the expungement process.  This process is expensive and the costs (for filing fees and a background check fee) amount to $320.00.  This is not an amount of money most people want to spend on an uncertain result.

For many years, I have argued that contempt itself is not an “offense” because it is neither a felony nor a misdemeanor.  The results have been mixed.  Recently, I had a client who wanted to appeal an adverse decision on this “contempt as an offense” issue.

On October 9, 2013, the Court of Appeals issued its decision in State v. Coughlin.  In that case, a client had been found in contempt for violation of a restraining order within the ten years of applying for an expungement.  The Trial Court determined that contempt was a disqualifying offense under the expungement statute.  We appealed.  The Court of Appeals agreed that contempt is not an “offense” or a “crime.”  The Court noted that in virtually all of its previous decisions characterizing the nature of a contempt conviction it had found that contempt was not a crime.  The Court of Appeals held that a contempt conviction does not, by itself, bar a person from an expungement.  Accordingly, the Court of Appeals reversed and remanded the case to the Trial Court for reconsideration.

After 35 years of being an Oregon expungement lawyer, it is good to see that the issue has been settled.  Now people can file for expungement with a degree of certainty that they will not be denied on the basis of a contempt conviction.  The patchwork of counties with different views of the issue are now settled.

“Bath Salts” May Be Sold in Stores, But They Are Illegal Drugs

In my experience as a Portland Criminal Defense Lawyer, I see people selling supposedly legal substitutes for illegal drugs.  Today, many “head shops” and internet companies market items marked as “bath salts” or “plant fertilizer” or “stain remover” as legal substitutes for cocaine and MDMA.  These crystalline powders have nothing to do with bathing, plants or removing stains and are actually illegal synthetic designer drugs with dangerous properties and side effects.

The drugs are based on a substance found in a natural plant called “Khat” (Catha Edulis) called cathinone.  Khat is native to the Middle East and Africa and has been used for its stimulant effects for thousands of years.  Khat is illegal in most countries except certain places in Africa and the Middle East.  The synthetic cathinone based drugs you see in stores are solely the product of modern chemistry.

These drugs are sold under the names “Vanilla Sky” and “White Knight” and are marked “not for human consumption.”  The chemists who create these substances make minor changes to the chemical structure of the drug and purport to avoid state and federal laws banning cathinone based substances.  By marking the item “not for human consumption” these merchants hope that they are avoiding federal laws which broadly ban not only cathinone, but cathinone analogues.

Most people assume that if an item is marketed for sale in the United States it must be legal.  This is a dangerous assumption.  Cathinone itself is a Schedule I drug, meaning it is a substance that has no legitimate medical use.  Possession or delivery of a cathinone based substance carries penalties on par with the possession or delivery of heroin.

Here is an example.  John buys “Vanilla Sky” over the internet based on the representation that he is purchasing a legal substitute for cocaine.  John decides to snort the drug in a parking lot, where he is observed by the police and arrested.  The police field test the powder, and it field tests positive for cocaine.  He is arrested for possession of cocaine.  However, when he appears in Court the crime lab has done a more sophisticated drug test and discovered that the substance is really synthetic cathinone.  John is indicted for possession of cathinone, a crime that is the is equal to possession of heroin and that can never be removed from his record.

Aside from the legal consequences, the use of these drugs is highly dangerous.  While these drugs may have physical effects like amphetamine, they also can cause hallucinations, seizures and delusions.  Poison control centers throughout the country continue to report high numbers of overdoses from synthetic cathinone.  The long term physical effects of synthetic cathinones are unknown.  These drugs are often sold by dealers who pass the drug off as MDMA (Ecstacy).

We have had many clients who naively think that they are purchasing and using a legal substance.  What they discover is that cathinone is a highly addictive substance and that, even though they purchased a powder that purports to be legal they are actually in possession of an illegal substance with legal consequences equal to the possession of heroin.

As a Portland drug crimes lawyer I have one practical piece of advice: if someone is selling you something that will get you “high” you should assume it is illegal.  Also, if you don’t know exactly what the drug is, you should assume that it is dangerous.

Supreme Court Says Reducing a Felony to a Misdemeanor Restores Gun Rights

Oregon law allows a Court to reduce Class C felony crimes to a misdemeanor. This can be done at the time of sentencing or later, after completion of probation. For many years, Courts in Oregon have held that people who reduce their felony to a misdemeanor after completion of probation do not have their gun rights restored. This was based on an interpretation of the Oregon law that forbids convicted felons from owning firearms. That law forbids anyone who “has been convicted of a felony” from owning a firearm. The Courts reasoned that a person who received a misdemeanor reduction after completion of probation had still “been convicted of a felony” for the time between the initial sentencing and the time the felony was reduced to a misdemeanor.

The Oregon Supreme Court disagreed with that reasoning in State v. Stark, decided on August 15, 2013. In that case, Mr. Stark had been convicted of a Class C Felony drug crime. After he completed his probation he asked the Court to reduce the conviction to a misdemeanor. The Court granted the request and issued an order reducing the crime to a misdemeanor. Two years later Mr. Stark was found in possession of a firearm. He was prosecuted for being a Felon in Possession of a Firearm. Mr. Stark went back to the Judge who reduced his felony to a misdemeanor and asked the Judge to enter an Amended Judgment (rather than an Order) reducing his felony to a misdemeanor and asked that the Judge make it retroactive to the date of his first sentencing, which the Judge did. Mr. Stark was convicted of being a Felon in Possession of a Firearm and he appealed argued that he was innocent because his felony conviction had been reduced to a misdemeanor.

The State cited older cases which held that people who have received a misdemeanor reduction after probation are still convicted felons under Oregon Law. The Oregon Supreme Court rejected that argument, holding that when a Court enters an Amended Judgment reducing a person’s felony to a misdemeanor that person is no longer a felon under Oregon law. This is a substantial change in Oregon law.

However, there is a catch. The Oregon Supreme Court affirmed Mr. Stark’s conviction because no Amended Judgment reducing his felony to a misdemeanor had been entered, only an Order, which was not enough. The Court noted that the Amended Judgment that was deemed “retroactive” by the prior Judge was not valid.

If you have had a felony reduced to a misdemeanor, we can now file an Amended Judgment and restore your gun rights. If you have an eligible felony conviction, we can take you through the reduction process and have it reduced to a misdemeanor conviction.

We have great success in misdemeanor reduction hearings. As an Oregon Gun Rights Lawyer, I help many people regain their Second Amendment Rights through a variety of different processes.

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 where can i buy phentermine hcl 30mg State v. Freeland, a case which set clear limits on prosecutorial discretion.  In duromine phentermine buy 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 http://www.rajtent.com/images/prod/lol608/ phentermine k 25 buy online Freeland decision in 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.