Measure 11 Defense Attorney in Portland, Oregon

Measure 11 Escape Clause

There is an Escape Clause from the mandatory minimum sentences for certain Measure 11 charges for persons convicted of:

Assault In The Second Degree (Assault Two) as defined in ORS 163.175(1)(b) for crimes committed on or after October 4, 1997.

Kidnapping In The Second Degree (Kidnapping Two) as defined in ORS 163.225 for crimes committed on or after October 4, 1997.

Manslaughter In the Second Degree (Manslaughter Two) as defined in ORS 163.125 for crimes committed on or after October 4, 1997.

Robbery In The Second Degree (Robbery Two) as defined in ORS 164.405 for crimes committed on or after October 4, 1997.

Rape In The Second Degree (Rape Two) as defined in ORS 163.365 for crimes committed on or after January 1, 2002.

Sexual Abuse In The First Degree (Sex Abuse One) as defined in ORS 163.427(1)(a)(A) for crimes committed on or after January 1, 2002.

Sodomy In The Second Degree (Sodomy One) as defined in ORS 163.395 for crimes committed on or after January 1, 2002.

Unlawful Sexual Penetration In The Second Degree as defined in ORS 163.408 for crimes committed on or after January 1, 2002.

If a person is convicted of one of these crimes, we can still get out of Measure 11 if we prove certain facts and persuade the Court that there are substantial and compelling reasons which justify a lesser sentence.

Explanation of Measure 11 Crimes

Measure 11 Robbery

The definition of robbery under Oregon law is complex and there are many ways in which the crime of robbery can be proven.  In essence, robbery is the taking or keeping of the property of another by the use or threatened use of force.  The lowest form of robbery is Robbery In The Third Degree, which is a Class C Felony.  Robbery In The Third Degree is not a Measure 11 offense.

Different factual circumstances can elevate a Robbery in the Third Degree to Robbery in the First or Second Degree, both of which are Measure 11 offenses.

If, during the course of a robbery,  a person represents by word or conduct that the person is armed with a dangerous or deadly weapon, regardless of whether the person actually has a dangerous or deadly weapon, the offense becomes Robbery In The Second Degree.  In addition, if a person commits a robbery and is aided by another person who is physically present, the offense is elevated to Robbery In The Second Degree.  Robbery In The Second Degree is a Measure 11 offense with a 70 month mandatory minimum prison sentence.

A robbery is elevated to Robbery In The First Degree if, during the course of a robbery, a person a person is: armed with a deadly weapon; uses or attempts to use a dangerous weapon; or causes or attempts to cause serious physical injury.   Robbery In The First Degree is a Measure 11 offense with a 90 month mandatory minimum prison sentence.

Even minor theft cases can become robberies.  For example, two young people stealing beer from a grocery store commit the crime of Theft In The Third Degree, a low misdemeanor.  However, if they shove their way past a security guard trying to stop them, it becomes a Robbery In The Second Degree.  The punishment increases from a possible 30 days in jail to a mandatory 70 months in prison.

The most common factual scenario for Robbery In The Second Degree is when a person takes property with a simulated weapon,  a toy gun or by claiming to be armed with a weapon.

The most common factual scenario for Robbery In The First Degree is when a person takes property while in possession of, or threatens the use of a firearm or a knife.  Firearms and knives are, by definition, “deadly weapons” because they are specifically designed for inflicting serious physical injury.  “Dangerous weapons” are common items which can be used in a manner that can cause serious physical injury.  Examples of dangerous weapons include vehicles, heavy boots (when used to kick another person) or even a common sidewalk, if one slams another person on the pavement.

Measure 11 Assault

Assault in the First and Second Degree fall under the mandatory minimum sentencing provisions of Measure 11.  Under Measure 11, the Court is authorized, and sometimes required, to impose a sentence for a specific period of months.  That sentence must be fully served with no reductions for good behavior or participation in prison programs.

A person commits the crime of Assault in the First Degree if they intentionally cause serious physical injury to another be means of a deadly or dangerous weapon.  A person commits the crime of Assault in the Second Degree if the person causes physical injury to another by means of a Deadly or Dangerous weapon.

A deadly weapon is an object that is specifically designed for and can be used to cause death or serious injury.  Included in this class of weapons would be guns and knives.  A dangerous weapon is an object that, while not designed to cause death or serious physical injury, can be used in such a manner that it can cause serious physical injury.  Examples of this kind of weapon have included steel toed boots (when used to kick someone) any heavy object that can be used as a club and even the pavement on a sidewalk (when a person’s head is slammed into a wall).

The most common factual scenario for Assault in the First Degree and Assault in the Second degree is a physical altercation.  Often these altercations involve mutual combat.  However, the moment that a person arms himself with a weapon, he very likely defeats any claim of self-defense, because an attack with a weapon against an unarmed person can be a disproportionate response to any perceived threat.  The problem in these cases is that the seriousness of the offense is determined by the severity of the injuries, which a person may not anticipate at all.

For instance, if two people agree to engage in mutual combat and one person slams the other person’s head on the concrete, causing injuries, that person can be charged with Assult in the Second degree, even if the injuries are not very serious.  Assault in the Second Degree carries a 70 month prison term under Measure 11.  If the injuries are more serious, causing a concussion or a skull fracture, the person can be charged with Assault in the First Degree.  Assault in the First Degree carries a 90 month prison term under Measure 11.

Measure 11 Crimes are serious criminal charges with serious potential consequences. Get advice from an experienced lawyer before you make any decisions or say anything to anyone.

Call us for a free Measure 11 telephone consultation at (503) 506-2836 or you can tell us about your case here.