Oregon DUI Lawyer Blog

When Portland police stopped a pickup for a minor traffic violation last week it turned into the biggest ecstasy seizure in Portland police history. Reports indicated that the traffic stop was for failure to maintain a lane of travel. This traffic violation is a police favorite when looking for drunk driving.

After the stop, police say they obtained consent to search the vehicle. As an Oregon defense attorney, I always tell people "never consent to a search." In order to conduct a search, police must have a warrant. There are only a few exceptions to this general warrant requirement. The easiest exception for the police is consent. Do not give it.

People sometimes ask why they shouldn't consent if they have nothing to hide? That is like asking why we should care about free speech if we have nothing to say. The warrant requirement is in the Constitution because our founders recognized it as a vital right to protecting our democracy. We people routinely waive their rights, those rights are cheapened.

In a previous post I discussed whether or not to take the field sobriety tests or the breath test. Now let me stress the importance of not giving consent to a search. Next to exercising the right to remain silent and requesting a lawyer, not consenting to searches is among the top things people can do to protect everyone's rights.

A few days ago I wrote about the DUI arrest of Alexa Kerry. Prosecutors have now decided not to bring charges against her. They did, however, refer to it is a close case despite a .06 BAC.

As an Oregon DUI lawyer, I have defended cases with BAC readings as low as .06. With that in mind, I can see how a zealous prosecutor might consider this a close case. I am happy to see that reason won out over zeal in this case though.

The question remains why a judge found it necessary to impose $5,000 bail on this case. It goes to show how serious even an arrest for DUI can be. Just for being arrested, and despite a very low BAC, Ms. Kerry was required to post thousands of dollars in bail.

There is an interesting piece in the New York Times this morning detailing the growing political consensus about the importance of criminal defense. The article indicates that a variety of conservative groups are calling for more limits on criminal law and are supporting the rights of the accused.

During the recent past, valuing criminal defense has largely been seen as a liberal position. Today's article indicates that many conservative groups are arguing for tighter controls on the government in the criminal justice system. These groups include such conservative luminaries as the Edwin Meese III, Dick Thournburgh, the CATO institute, the Heritage Foundation, the U.S. Chamber of Commerce, and the Federalist Society.

As an Oregon criminal defense lawyer, this trend is encouraging to me. I have long found it interesting that supporting the rights of the accused is generally viewed as a liberal position. Protecting the rights of the accused is a fundamental tenant of American democracy. Classifying criminal defense as the exclusive province of one political ideology seemed like classifying national security or transportation as a political position. People might disagree with the means, but surely we should all agree that it is important.

Moreover, I know a lot of criminal defense lawyers who are politically conservative and a lot of prosecutors who are politically liberal. It never made sense the practice was seen as belonging to a political ideology when the practitioners do not.

I doubt this recent trend will mean that criminal defense lawyers become the most popular people in the community. Ours is a profession who's unpopularity seems fairly well entrenched. It is nice to thing that thinking people on all sides of the political spectrum recognize the importance however.

Alexa Kerry, Senator John Kerry's daughter, was arrested for DUI last night. According to news reports, Ms. Kerry was given field sobriety tests before she was arrested. Ultimately she had a breath alcohol concentration (BAC) of .06.

These results show how unreliable the FSTs can be. As in Oregon, the presumptive limit in California is .08. After giving Ms. Kerry the field sobriety tests, the police apparently believed that Ms. Kerry was under the influence. Otherwise there would be no basis for an arrest.

This case shows one of the fundamental problems with field sobriety tests. Field sobriety tests are standardized and lab certified. Prosecutors routinely argue that performance on field sobriety tests should be used as the basis for criminal convictions for DUI. However, FSTs are designed to look for a correlation to a BAC not to look for intoxication.

Field sobriety tests are certified by the National Highway Safety Administration. During lab certification, subjects are dosed with a quantity of alcohol. Then testers are asked to administer the FSTs to the subjects. Testers then attempt to identify those subjects who are intoxicated. The testers are not told how much alcohol the various subjects have consumed. According to these lab certifications, the FSTs are accurate at .10. Meaning, that if the standards are followed, the tester should be able to identify someone was a BAC of .10 using the FSTs.

The problem with this lab certification is that it is based on statistics. The certification is essentially saying that there is a statistical correlation between certain performances on the FSTs and a certain BAC. As a matter of scientific research, such a correlation may be interesting for a variety of reasons. As the basis for a criminal prosecution, however, it is frightening.

Ms. Kerry's case demonstrates that police can and do arrest people who have BACs well under .10 even after administering the FSTs. In such cases, prosecutors often attempt to argue that the performance on the FSTs shows intoxication despite the low BAC. This argument fails to understand the presence of outliers.

Field sobriety tests are not designed or certified to show intoxication. They are only certified to show a correlation with a specific BAC. When someone like Ms. Kerry fails the FTS but has a low BAC, she is a statistical outlier. This result says nothing about Ms. Kerry's level of intoxication. It only shows that the FSTs are not perfectly correlated to BAC.

In all states, including Oregon, breath tests are used as per se evidence of someone's guilt for the crime of DUI. There is no other crime where someone is presumed guilty if a machine says he has a measurement over a certain level. What makes this reality even more disturbing is that breath test machines are inherently inaccurate.

Breath test machines work by measuring the alcohol concentration in a subject's breath. Whether or not that actually do this particularly well is a matter for a later post. Even if these machines are able to accurately measure a person's breath alcohol concentration, however, research indicates that breath and blood alcohol levels can be vastly different.

Dr. Michael P. Hlastala, Ph.D., a professor of Physiology, Biophysics and of Medicine Pulmonary and Critical Care Medicine at the University of Washington conducted experiments comparing breath test results to blood results. His research into this area shows that the results can vary by as much as 20% plus or minus.

This is a staggering figure when applied to a DUI case. Imagine a defendant who has a blood alcohol concentration of .067%. According to Dr. Hlastala's finding, it is perfectly possible for that person to register a .08 on the breath test. Such a reading would be used as per se evidence that the person was intoxicated even though his actual blood alcohol was well under the legal limit.

In Oregon, as in all states, the police use field sobriety tests to make an arrest decision. Once someone is arrested for DUI, he is then asked to take a breath test. In a previous post I talked about why it is a bad idea to take the field sobriety tests. Today, I would like to focus on why I usually advise people to take the breath test.

This advice is somewhat more controversial. I do know some DUI lawyers who say people should not take the breath test. In most cases, however, I think it is generally a good idea. I believe it is actually easier to defend a DUI when the test was taken.

As a caveat, I will say that I believe someone should only take the breath test if he is read the implied consent warnings. This caveat is probably too technical for the average person who has just been arrested for DUI. That is why, as always, a person should ask to speak to an experienced DUI attorney before making any decisions.

When the police arrest someone for DUI, they read that person a form called the implied consent warning. On this form, the police warn the person that if he refuses to take a breath test the penalties will be worse than if he takes the test but fails. As I discussed in an earlier post about State v. Machuca, Portland Police are no longer reading this form in every case.

If someone is read that implied consent form and refuses to take the test, the prosecutor will argue at trial that the person must have known they would fail. It is true that the government won't have a number to show the jury, but they will get to use their favorite argument, that the person knew they were guilty. This argument can be very effective with jurors.

On the other hand, a skilled DUI lawyer may be able to get the results of that test suppressed. If that happens, the government will not have a number to show the jury and they won't be able to make their favorite refusal argument either. Even if the breath test does come in, I believe it is easier to show how unreliable the tests are then to explain why someone didn't take the test.

Of course if someone does refuse to take a breath test, he should still talk to an experienced DUI lawyer. Every case is different, and there are many types of defenses.

In the ever-changing area of Oregon DUI law, things just got a bit more interesting. On September 30th, The Court of Appeals held that the Implied Consent Warning is coercive. In State v. Machuca, the court held that because the defendant was threatened with economic harm and loss of privileges, his consent was not voluntary.

Machuca was a blood draw case, but the same reasoning should apply to breath test cases. The court of appeals did justify a test under the exigent circumstances exception to the warrant requirement.

So far, the shakeout from this decision is unclear. Many trial judges are still allowing breath tests into evidence. I believe there is a strong argument that exigent circumstances should never apply to a breath test. There is a statutory waiting period required before any breath test. This waiting period negates the concept of exigency. Even if exigency does properly apply to breath or blood tests, it is unclear why to police shouldn't at least have to try to obtain a telephonic warrant.

The Multnomah County District Attorney, the Portland City Attorney, and the Portland Police Department have decided to stop reading implied consent warnings initially during DUI investigations. Instead, Portland Police are now going to try to get the arrested person to consent to the test without warning them about the consequences. Without reading the implied consent warnings, the DMV should not be able to suspend a drivers' license administratively. This is one nice side effect of the Portland policy.

More litigation in this area is needed, and the Oregon Supreme Court has already agreed to hear the case. Briefing is due in this case by December. Oral arguments will likely be heard early next year.

One question I get a lot as a DUI lawyer is what to do if pulled over for DUI in Oregon? Most people want to know whether or not they should take the roadside tests and whether or not to take the breath test. In the post, I will address the roadside tests.

Roadside tests are often called standardized field sobriety tests or FSTs. These tests are designed by the National Highway Traffic Safety Administration (NHTSA). There are three parts the tests: the HGN, the walk and turn, and the one leg stand. Some arresting officers at a DUI stop throw in a few other tests as well. But those other tests are not standardized.

The first phase of the standardized test is the horizontal gaze nystagmus test or HGN. This is the test where the arresting officer passes a pen in front of the subject's eyes. The test is designed to look for a jerking of the eyes called nystagmus. In order to be valid, the office must follow a very precise protocol. Many officers cannot explain these protocols when questioned by an experienced DUI attorney.

Consuming alcohol does cause horizontal gaze nystagmus in most people. Because of that fact, police and prosecutors love to point to the HGN test as evidence that someone was drinking. What police and prosecutors often fail to mention is that there are many types of nystagmus. Simply observing eye jerking does not prove the source of that jerking.

Moreover, laboratory studies have found HGN in people with breath alcohol concentrations as low as .04. This level is half the presumptive limit in Oregon. Basically, the HGN is a worthless test that proves nothing more than that a person may have drank half the legal limit.

The second test in the FSTs is the walk and turn. In this test, someone is asked to walk heel-to-toe along a line. Often an office asked someone to just imagine a straight line if there isn't one on the ground already.

Most people who take this test think they are just being tested on whether or not they can walk heel to toe. The cop is really looking to see how well someone can follow complicated directions. It is considered failing if someone doesn't take the exact right number of steps, if they don't make a special type of turn, or if they don't bring their heels within an inch of their toes. This test is inherently unfair because people are never told what they are actually being tested on.

The last test is the one leg stand test. In this test the person is asked to stand on one foot for thirty seconds. Again, the cop never tells the person that he is actually looking for the way he stands, whether he looks at his foot, or how well he estimates 30 seconds.

None of these tests are fair. They are designed to fail. You should not take these test even if you have had nothing to drink. If you are asked to take these tests, you should politely refuse. If you are arrested, immediately ask to speak with a qualified DUI lawyer.