Oregon DUI Lawyer Blog

Oregon DUI law took a turn for the sensible this month. The Oregon Court of Appeals held in Oregon v. Bevan that vertical nystagmus or VGN evidence is improper. VGN is the involuntary jerking of the eyes up and down. Although the test is not validated the same way HGN is, police routinely check for VGN.

When VGN is present, police often testify that the presence indicates extreme amounts of alcohol or that the person has consumed more alcohol than usual. The court of appeals in Bevans ruled that such testimony is improper because it is not backed up with scientific validation.

This result is a welcome turn towards science. In DUI cases, the government often cloaks its testimony in science to make it seem irrefutable. When that science is challenged, the government sometimes claims that such challenges go to the weight of the evidence not its admissibility. This is a classic example of trying to have it both ways.

In this case, the Court of Appeals held the government to a logical position. If the government wants to introduce scientific evidence, that evidence must be based in science. This result should not come as a surprise. There is well established case law laying out the basis for allowing scientific evidence. Far too often, however, it seems that there is an DUI exception to the rules. This case, along with the earlier Court of Appeals case of Machuca, indicate a trend away from this historical unwritten exception.

A woman in Virginia was stopped by police at a DUI checkpoint. When police heard strange noises coming from the woman's trunk, the woman told them she was carrying a goat. Police opened the trunk and found a bound live goat.

This case turns out to have an international aspect. The woman told police that she was getting the goat as a gift for her Kenyan friends. Additionally, the woman told the police that she was a native of the United Kingdom. The driver told police that it is common practice to carry goats in the trunk across the pond.

Notwithstanding the odd goat rescue, DUI checkpoints are controversial. Criminal defense lawyers, civil libertarians, and people who generally don't like to be stopped by the police typically oppose DUI checkpoints as an invasion of privacy. Law enforcement, prosecutors, and organization such as MADD typically support DUI checkpoints as a way to deter drunk driving.

The federal constitution does not prohibit DUI checkpoints. Therefore, the debate over whether or not to allow them is held at the state level. In the pacific north west DUI checkpoints are unflavored. Neither Oregon nor Washington allows for checkpoints. Anecdotal evidence indicates that transporting goats in trunks is also out of vogue here.

As I have posted previously, I have long supported the idea of requiring video recorders in all police cars. There is simply no better evidence then a recording of what actually happened. In the DUI context, I have seen numerous cases, where the arresting officer's report sounded much worse then the way events appeared on video. Moreover, video protects police from unfounded claims of misconduct. Indeed I would happily see higher fines assessed against people convicted of crimes in Oregon, if we could use that money to pay for in-car cameras.

Rather than installing video cameras in police cars, however, a trend seems to be developing to criminalize video taping police. Three states have now outlawed video taping police even on a public street, as Wendy McElroy argues in this her column about Target= "_blank"stopping the taping of police misconduct.

The only possible rationale for these laws appears to be to prevent citizens from documenting police misconduct. Such an attempt to criminalize documenting the truth is outrageous in a democracy. Far from moving towards better accuracy and transparency, the government in these three states appears to be actively avoiding accountability. Although this trend is currently confined to the East Coast, Oregonians should be vigilant against any similar movements here.

Today the United States Supreme Court made it more difficult to assert a Miranda violation. Under Miranda, police must advise a defendant of his rights to counsel and to remain silent when he is taken into custody. Today in Berghuis v. Thopkins, the high court held that a defendant must assert his rights.

In Thopkins, the defendant did not say that he wished to remain silent. Instead, the defendant mostly remained silent throughout lengthy interrogations. Towards the end of interrogation, however, the defendant did answer "yes" to a question about whether or not he prayed to God for forgiveness for his crime. The court ruled that because the defendant did not assert his right to remain silent, there was not a Miranda violation.

This ruling applies to federal confession law arising out of the 5th amendment. State law, such as the Oregon Constitution, also give rise to confession law. In a case brought in state court, a confession must be analyzed under both sets of laws. Under Thopkins, it will now be more difficult to get a statement suppressed under federal analysis.

As a practice matter, this case highlights the importance of asserting your rights. Whether or not your silence would be analyzed as an invocation of rights under Oregon law, it is best to say that you are invoking your rights. That way, there can be no question. Of course, the best practice is to immediately invoke your right to counsel and ask to speak with a criminal defense lawyer.

Scientists have come up with a breath test that can reportedly detect methamphetamine in the breath. During the test, subjects wear a mask for 10 minutes. Their breath is then filtered, and small particles of drugs can be detected. Reports indicate that researchers are already hopeful that this technology could be used in DUI cases.

This test differs from alcohol breath testing in a key ways. The test does not measure the concentration of drugs. Unlike alcohol testing, which purports to determine the concentration of alcohol in the bloodstream, this testing only detects the presence of drugs. Indeed researchers say the test can detect drugs after the effects of the drugs have worn off.

This difference limits the usefulness of such a test in the DUI context. In drunk driving prosecutions, the government must prove that the driver was under the influence of alcohol or drugs. Without knowing the concentration of the drugs, the government's proof is not straightforward. This is particularly true since the scientists themselves indicate that the test works well after the drugs are active on a person.

Prosecutors and legislators are unconcerned with the problems with alcohol breath testing. Therefore, there is no reason to think, either group will be bothered by problems with drug breath testing. If this technology is marketed to law enforcement, it's use is the near future seems very likely.

A move is afoot to increase DUI penalties in Oregon. A proposed bill to the Oregon Legislature would increase penalties for DUI. Under the terms of the proposed legislation, a third conviction would carry a mandatory 90 day jail sentence. This change is encouraged by Steve Doell from Oregon Crime Victims United.

In a related proposal, Kevin Mannix is sponsoring an initiative to make a third offense a felony. Currently a fourth DUI is a felony. Mannix is a former state legislator and gubernatorial candidate. Other suggestions include allowing for police road blocks, and lowering the presumptive intoxication limit.

Because I practice DUI defense in both Oregon and Washington, I have had an opportunity to compare the two different systems. Washington has a graduated penalty system that is one of the harshest in the nation. On a second offense, a driver is looking at between 30 and 45 days minimum. On the third offense, a driver is looking at 120 days minimum. These penalties are much harsher than the minimum penalties required in Oregon.

The Washington system is different in one key respect, however. There, prosecutors can negotiate DUI cases. This ability to negotiate means that many second and third offense cases do not go to trial in Washington. When someone is faced with the possibility of a harsh mandatory sentence if he is convinced, often a negotiated resolution seems attractive.

Due to my experience in Washington, I predict unintended consequence if Oregon increases DUI penalties without allowing for negotiated settlements. I predict that far more cases will end up going to trial. Many of these cases will result in convictions. If prosecutors were allowed to negotiate, many of those trials could have been avoided. Without the ability to negotiate, the incentive to go to trial will be high, and the court will be burdened with an increased caseload.

I advise most of my Oregon clients to take their second or third offense cases to trial. The way I see it, there is very little to lose in taking a case to trial when the prosecutor is only offering what a judge will likely give after trial anyway. That being said, a lot of people in the Oregon system do plea guilty to a second or third offense DUI. Partly this is because other lawyers may have different philosophies and advise their clients differently. Partly it is because some clients really do just want to get their cases over with.

If the penalty for a second or third DUI is guarantied to be harsh, there will be more of an incentive to take those cases to trial. If convicted, a person will get a harsh sentence. The person cannot just get her case over, however. If a person pleads guilty, she will still get a harsh penalty. With no negotiations and harsh mandatory sentences, the only way possible way to avoid a harsh sentence will be to take a case to trial.

I take Doell and Mannix at face value on their proposals. I imagine they really are trying to make Oregon a better and safer place. I doubt, however, that they have considered the burden that these measures would place on the criminal courts. When Oregonians consider changing DUI laws, they should also consider the practical affect those changes will have on the criminal courts.

In the recent case of Oregon v. Klien, the Oregon Court of Appeals articulated the limits of a traffic stop. In Klien, police stopped a bicyclist at night for not having proper lighting. After running his identification, police asked Klien if he had any drugs on him. Eventually, Klien admitted to having some drugs. This led to his arrest and prosecution for possession of methamphetamine.

The Court held that once the basis for the original stop has expired, the police contact must end. By inquiring about drugs, the office impermissibly extended the traffic stop. In doing so, officers violated the Oregon Constitution. Therefore, the court held that the evidence of methamphetamine must be suppressed.

This ruling is significant for most crimes involving cars. Whether DUI or possession of a controlled substance, in nearly all cases the initial police contact arises out of a traffic stop. Klien emphatically states that when police conduct such traffic stops, they cannot use the stop as a fishing expedition.

This ruling is also significant because it may give rise to an argument I have long advocated. Under the holding of Klien, it may be unlawful for police to call in a special DUI officer. Since all officers are capable of conducting a DUI investigation, it is arguably unlawful to extend an investigation simply to bring in a special officer for that purpose.

I wrote about this argument in an article I published for the Washington Association of Criminal Defense Lawyers a few years ago. Although it is not as common in Oregon for officers to specialize in DUI, the Klien decision adds strength to an objection in any case in which the investigation is extended.

A group of Chinese College students from Nanjing University of Finance & Economics recently invented a device they are calling the "Stop Prompted By Drunk." The device is a small sensor which is mounted in the car. The sensor detects the alcohol concentration in the ambient air of the car. If the concentration raises above a specified limit, the device prevents the car from starting.

Proponents of this new device claim that it is both cheaper and better than similar devices currently on the market. It may be cheaper, but claims of superiority seem dubious at best. Current ignition interlock devices require the driver to blow into a tube. A small machine then measures the alcohol concentration in the breath.

Given the problems with full size alcohol measuring devices, small devices are always tricky. At least with current models, however, the device is measuring the driver's breath. The Stop Prompted By Drunk device proposes measuring alcohol in the air. This alcohol could be caused by passengers, by open containers of alcohol, or denatured alcohol found in substances like hand sanitizer.

One advantage of the new device is that is frees the driver to operate the vehicle. In current interlock devices, the device occasionally requires the driver to give a breath sample while the vehicle is moving. This requires the driver to blow into the tube while operating the vehicle. This maneuver seems at least as dangerous if not substantially more dangerous than talking on a cell phone.

One of the things I love most about DUI defense is the people I meet. Unlike many crimes, people from all walks of life are charged with driving under the influence. Anyone who has a few drinks in a bar then drives away could conceivably be charged. Indeed, more and more I am seeing people charged with breath alcohol levels under the legal limit.

In Oregon, a person does not have to have a breath alcohol of .08 in order to be under the influence. If a person's breath alcohol is above .08, he is under the influence as a matter of law. Even with a breath alcohol under a .08, however, a person can still be charged with DUI if his ability to drive is effected to a noticeable and perceptible degree.

This is important to keep in mind on a day like May 5th. There are a few days throughout the year where it is customary to go out for a few beers. Cinco de Mayo is one of those days. This means there will be lots of people out this evening having a few drinks then driving home. If you are not intoxicated, there is nothing wrong with driving after drinking. Police and prosecutors continue to push the boundaries of this distinction however.

As a practical matter, it is safer and easier to simply not drink and drive. It is far easier to avoid a DUI charge by simply not driving after drinking them having to fight a trumped up DUI charge. This is particularly true in Oregon where prosecutors cannot plea bargain DUI charges.

If you are charged with a DUI, on Cinco de Mayo or any other day, remember that a charge is only a charge. The State still has to prove their case. A skilled criminal defense lawyer can help you hold the State to their burden.

In Oregon it is illegal to drive while under the influence of intoxicants. These intoxicants can be alcohol, controlled substances, or the combination of alcohol and controlled substances. One question that sometimes arises is whether or not it matters if the driver has a prescription.

It does not matter if the controlled substances are prescribed. It is nevertheless illegal to drive if the controlled substances affect the driver's ability to a noticeable and perceptible degree. It is illegal to possess many prescription pain killers without a prescription. If someone has a prescription, simply having the pills is not illegal. If the pain kills affect the person's ability to drive, however, it is illegal for that person to drive while taken them. This is true even though the medicine is prescribed.

This is also the case for prescription marijuana. While a person with a prescription for marijuana is exempt from the possession laws, he still cannot drive while under the influence of marijuana.

Some prescription medications do not intoxicate people by themselves. When mixed with alcohol, however, the combined affects are greater than alcohol alone. When this is the case, a jury is allowed to consider the possible side affects of the medication when determining intoxication. This can lead to convictions for DUI well under the legal limit of .08.

Recently, I reported on coach Kathryn Adelman Naro's DUI charge. In that post, I noted that family patterns of alcohol abuse are common. These patterns have long led people to speculate that there is a strong genetic component to addiction. This is to say, alcoholism and addiction are genetic disorders which compel the behavior of addication. This belief is often referred to as the disease theory of alcoholism or the disease model.

The scientific and medical communities largely accept the disease model of addiction. The American Medical Association, the American Psychiatric Association, The American Hospital Association, The American Public Health Association, and a variety of equally impressive sounding associations all endorse the disease model. Addiction research continues to support these findings.

Nevertheless, the disease model remains controversial. During sentencing in the Naro case, Washington County Judge Bailey said that he did not believe alcoholism was a disease. As articulated in this column from the Oregonian, Judge Bailey's statement flies in the face of Oregon public policy regarding addiction treatment.

The Judge's position on addiction is not surprising in the context of the criminal justice system. If addiction is truly a disease, then the appropriate response to criminal addictive behavior is necessarily complicated.

Imagine the example of kleptomania. Everyone will agree that theft should be illegal. Someone who has kleptomania, however is compelled to steal due to a disease. Standard deterrence will not prevent a kleptomaniac from stealing. The humane and enlighten response to a kleptomaniac would be some sort of treatment to cure the disease. Simply punishing the behavior without recognizing the disease seems unjust.

The same is true to addictive behavior. When an alcoholic or drug addict commits a crime due entirely to their disease, standard punishments seem unwise and unjust. Crafting an appropriate response that both protects the public and treats the addict is difficult and costly. It is far easier to simply deny the existence of a disease.

In the context of DUI, like the Naro case, the disease model does not fully excuse the criminal conduct. Being intoxicated is not unlawful. It is the driving while intoxicated that is the problem. There are plenty of crimes, such as possession of controlled substances, where acting on the addiction is the criminal behavior. Many of these crimes are felonies, and the standard response is jail. While easier than acknowledging the disease, this response serves neither the public nor the suffering individual.

Thankfully, many jurisdictions throughout Oregon and the United States do have more appropriate responses to addiction. Through drug courts and diversion programs, there are some creative programs that recognize the disease of addiction.

Back in December, I reported on a man charged with DUI in a stolen Portland police car. This seems like the type of thing that would almost never happen. Only a few months later, however, lighting has struck again. Recently, another man was arrested in Salem DUI in a police car.

In this case, police first heard reports of a white mustang driving recklessly. When police found the white mustang, it turned out to be a stolen police car. An 18 year old man was passed out in the car at the time. The man was charged with unlawful use of a motor vehicle, driving under the influence, and reckless driving.

As I noted a few days ago, there is an affirmative defense to physical control. In this case, the man was not actually caught while driving. There may be circumstantial evidence of driving in this case. The news reports are not clear on that point. If this case is actually a physical control case, however, there could be a defense. That may not help with the unauthorized use of a police car charge however.

In Oregon, there is a companion statute to the DUI law. It is against the law to be in actual physical control of a motor vehicle while under the influence of intoxicants. Most lawyers refer to this crime as "physical control." The physical control statute helps prosecutors get around the proof problem presented by drunk people in cars who aren't actually driving when the police contact them.

I once had a case in which the driver was contacted by police on the side of the highway. The driver was obviously intoxicated. She had a half empty bottle of liquor with her in the car. The prosecutor charged DUI. A judge threw the case out because there was no evidence of driving. The judge even said that the prosecutor should have charged physical control. Of course, that case was less good lawyering from me then just a mistake of the prosecutors. The case does show why the physical control statute is there though.

One interesting wrinkle about physical control is that there is an affirmative defense of safely off the roadway. This means that even if the prosecutor can prove all the elements of physical control, a person is not guilty if, prior to being contacted by the police, the person moved the car safely off the roadway.

This affirmative defense makes perfect sense from a public policy standpoint. As a society we don't want to punish people who have done the responsible thing and gotten their car off the roadway rather than drive drunk. The affirmative defense also makes physical control cases very fun legally.

Previously I have posted about biking under the influence, driving a horse cart under the influence, and most recently driving a lawn mower under the influence. To demonstrate the old axiom that truth is stranger than fiction, a man was recently arrested in the UK for driving a toy Barbie car while under the influence.

According to the Telegraph, the battery-powered car had a top speed of 4 miles an hour. It was designed for 3 to 5 year old children. The man involved was modifying the car with his son for a auto mechanics school project. Apparently when done, the man could resist taking the toy our for a test drive.

In Oregon, a self-propelled battery-powered toy car is probably a "vehicle" for the purposes of the DUI statute. Therefore, the man could have been charged for DUI here too if he tried his test drive in Oregon.

Last December, I reported on the man in Sherwood Oregon who kicked a cop during a traffic incident. Now it has happened again - this time in Chicago. Although my readership is growing, I assume the Chicago kicker was not inspired by my earlier post. If so, he ignored my advice to never kick a cop.

In this recent case, the man was pulled over for DUI. The man then used his cell phone to call a relative. That relative then came to the scene to videotape police interaction. I have long held that video of traffic stops should be mandatory. Indeed, I would happily support a proposal to finance the installation of in-car recorders through higher criminal conviction fees. There is really no substitute for an actual recording of the police contact.

Of course, video does cut both ways. I have seen videos in which the roadside tests appear great. These cases are very helpful. I have also seen cases in which the driver is clearly intoxicated. These videos are less helpful. It is unclear whether or not the relative recorded the man kicking the cop in this case.