Oregon DUI Lawyer Blog

Oregon uses the Intoxilyzer 8000 for its alcohol breath testing machines. Nearly every driving under the influence of intoxicants case involves an Intoxilyzer 8000. From Portland to Joseph, every community has at least one Intoxilyzer available for the police to use in DUII investigations. This represents a huge outlay of taxpayer money and a huge public reliance on the machine. Unfortunately, the machines simply do not work that well.

CMI, the maker of the Intoxilyzer, claim that the 8000 uses a slope detector to differentiate between mouth alcohol and breath alcohol. In theory, a slope detector works be measuring the rate of change in the alcohol reading. If the rate is too fast, the slope detector is supposed to determine that the alcohol must be coming from the mouth not from the lungs.

Slope detection is important for protecting the public. Because a driver is presumed to be intoxicated if he has a BAC of .08 or above, it is important to make sure no false positives are possible. The slope detector is supposed to insure that mouth alcohol cannot lead to an artificially high reading.

The slope detector on the Intoxilyzer 8000 does not work. Scholarly research has demonstrated that the slope detector does not work. A more dramatic demonstration can be seen in the video clip attached to this post. Unfortunately the quality is not very good. The results are striking however. Bear in mind, the CMI claims this type of result should not be possible with their machine.

Regardless of the breath test results, an Oregon DUII lawyer should challenge the Intoxilyzer 8000 anytime there is a change of mouth alcohol.

Oregon traffic law requires that drivers maintain a safe distance from emergency vehicles and ambulances. This means when a driver sees a police man or other emergency vehicle on the side of the road, the driver must either move over a lane to give more room or slow down. Starting on January 1, 2010, this law will be expanded. Next year, the law will also apply to tow trucks and roadside assistance vehicles. Slowing down will also be clarified to mean 5 miles below the posted speed limit.

These revisions strike me a common sense. Drivers should be giving extra room and slowing down whenever they see someone on the side of the highway. Standing on the shoulder of a highway, whether as a cop or a tow truck driver, is extremely dangerous. Having laws to protect those people is probably a good idea.

As a traffic attorney, I will be curious to see how this revised law is enforced. Whenever the traffic code is revised, it gives the police more reasons to pull people over. Because a traffic stop is often the beginning of a criminal investigation, this changed law could give the police more opportunities to open criminal traffic investigations.

Historically, the police could probably have stopped a driver for failing to slow for a tow truck operator under the negligent or reckless driving statutes. If these stops led to criminal investigations, however, a skilled criminal defense lawyer would likely challenge the stop as unlawful. With this new revision, such challenges will be more difficult.

In any event, the best way to avoid getting pulled over to drive safely.

The holidays often see a spike in drunk driving arrests, but there was a new twist this year. On Christmas Eve, Portland Police responded to a report of a fight in SE Portland. While the police were dealing with a group of people, a 30 year old man stole a marked police car. The man apparently just got into the police car and started driving away.

Police followed the man a few blocks to the OMSI parking lot where he crashed the car. According to news reports, the man was charged with DUII, Reckless driving, hit-and-run, criminal mischief, and unauthorized use of a police car.

In an earlier, post I advised against kicking a police officer. Today I would like to expand that advice. One should not steal a police car. No matter how festive one is feeling on New Yeats Eve, taking a cop car for a joy ride will almost certainly not be received with holiday cheer.

Likewise, people are well advised not to drink and drive on New Years. No matter how sober you feel, however, don't take a cop car.

As an Oregon DUI lawyer, I end up handling a lot of traffic violation matters in addition to driving under the influence cases. For that reason, a recent Multnomah County Circuit Court case caught my attention. The case is non-binding, meaning it has no presidential effect. Nevertheless, it is interesting and instructive.

The case arose when a man driving in Portland made a last minute turn and hit a bicyclist. The driver was cited for failing to yield to a rider in a bicycle lane. At the time of the collision, the bicycle was in the intersection. Although there is a painted bike lane on both sides of the intersection, the pain does not extend through the intersection itself. For that reason, the traffic violation was dismissed.

The case would likely not have been dismissed had the driver been cited for a different violation. This result points to an essential truth about criminal defense. Just because someone did something wrong, it doesn't mean they are guilty of the crime with which they are charged. In this case, hitting a bicyclist was likely the result of a violation - but the not violation charged.

This truth is not only important in traffic violations. Criminal laws are written with specific elements. In order to prove someone's guilt, the government must show that the person committed each of those specific elements. When the government charges a crime when it cannot prove each of the elements, the accused should be acquitted. This is as true in a serious crime as it is in a mere traffic violation.

When someone is pulled over for DUI, it is far easier and cheaper to have him blow into a tube than it would be to draw his blood and have that blood analyzed in a laboratory. For that reason, breath testing is very attractive to law enforcement. Earlier this month I wrote about how alcohol breath testing machines generally work. Today I would like to focus on one specific part of that operation, partition ratios.

Alcohol concentration in breath is not equal to alcohol concentration in blood. Rather there is a ratio between the alcohol level in someone's breath and the alcohol in someone's blood. This ratio is called the partition ratio. Based on Henry's law, breath test manufactures assume that all people have a partition ratio of 2100 to 1.

There are, however, a number of factors that can affect an individual's partition ratio. Some of these are body temperature, atmospheric pressure, cell count in blood, physical activity, and hyperventilation. Surprisingly, when police arrest someone for DUI they do not take the person's temperature, or record the local atmospheric pressure. Both of these measurements would be simple to make with a thermometer and barometer. Other factors which might effect a person's partition ratio are not as easily measured.

As I have discussed earlier, it is well documented that breath testing is inaccurate up to 20% in either direction. This inaccuracy is largely because of partition ratios. If a person does not have a partition ratio of 2100:1, the results of the test will be inaccurate. The farther away from that assumed ratio a person is, the more inaccurate the test will be. Of course it is impossible to determine what someone's partition ration was when they were tested. This is because partition ratios not only differ from person to person. They also differ over time for any given person.

The U.S. Tax Court ruled last week that a driver could write off the loss of a car that he totaled during a drunk driving incident. According to reports, the driver in this case had a BAC of .09. In Oregon, that BAC would be considered intoxicated per se because it is over the presumptive limit of .08.

Although the case took place in another jurisdiction, the same presumptive limit applied there. Most people recognize that .09 is not a particularly high BAC. The tax court ruling is interesting, however, because the driver was per se intoxicated. Even so he was able to deduct the loss of his vehicle.

The tax court ruling hinged the mental state, what lawyers call mens rea. Losses are not deductable if the taxpayer had a mens rea of willful negligence. The judge in this case ruled that that driver was not willfully negligent by driving with a BAC of .09. In Oregon criminal law, driving under the influence of intoxicants is a strict liability crime. This means the government does not need to prove a mental state. The government must simply show that someone drove while intoxicated.

As a DUI lawyer, it has been many years since I have thought seriously about federal tax law. I do like this kind of cross over case though. The fact that DUI cases end up influencing other areas of law is one of the aspects that makes DUI practice so exciting. One should talk to an experienced tax professional about the nuances of any tax decision, although I doubt this recent tax court decision will encourage anyone to drink and drive.

Driving under the influence is often a crime with very little evidence. The only witness is typically the officer. If there is no breath test, the only evidence of intoxication is the testimony of the officer. Most people accept this without a worry because there is no motive for police to lie. Four cops in Florida were caught doing just that though.

Thanks to an in-car recording, four police officers were caught on tape plotting to frame a woman for DUI. One of the officers had rear ended the woman after she came an abrupt stop. Rather then take the possible consequences of being involved in an accident, the police decided to accuse the woman of DUI and to coordinate their reports to make the charges look stronger.

Could something like this happen in Portland? What about the rest of Oregon? We would all like to think it wouldn't, but there is really no way to know. The officers who were caught in Florida were caught because the police car was equipped with recording equipment. Some police cars in Oregon do have recording devices, but most do not.

This case is another example of why cameras in police cars are so valuable for the public. Unbelievably, the police in this case must have known they were being recorded. Imagine how brazen police could be if they knew there would be no independent evidence of their actions.

In car videos also protect the police and help convict the guilty. It is impossible to falsely claim police misconduct when there is a video showing what actually happened. And as a DUI attorney I have seen plenty of otherwise good cases go bad once a video of the intoxicated client is played.

So why don't we have video cameras in all police cars in Oregon? The government says such cameras are expensive. I doubt that they actually are, although budges are tight. Cynically, I suspect the government resists putting cameras in cars precisely because they capture independent evidence of what actually happens in the field.

Although I have seen videos that sink cases, there are many examples of recordings with helps my cases. I have seen police fail to properly read the Miranda warnings if they read them at all. I have seen police stumble themselves when demonstrating the field sobriety tests. I have even seen police put things in their reports which simply did not happen on the video.

For all these reasons, protecting the police from false accusation, gathering independent evidence, and protecting the public from bad police work, we need to install cameras in every police car in Oregon.

In Oregon, and everywhere else I've been, prosecutors and police love roadside agility tests, which they call Field Sobriety Tests. I have already discussed why you should not take these tests. Even if your refusal to take the tests is used against you in Court, it is still better than these unfair tests.

Today I will discuss why the results of FSTs should be considered irrelevant in cases without a BAC. Contrary to popular beliefs, including the beliefs of most prosecutors, cops, and judges, the FSTs are not designed to detect impairment. They are only designed to show a probable correlation with a breath test result.

The Godmother of FSTs is Marcelline Burns of the Sothern California Research Institute. Although Dr. Burns has been preoccupied with trying to show the effectiveness of FSTs for decades, even she admits that roadside tests cannot show impairment. In a 1998 paper entitled, Validation Of The Standardized Field Sobriety Tests Battery At BACs Below 0.10. U.S. Department of Transportation, National Highway Traffic Safety Administration, DOT-HS808-839 (1998), Burns admitted, "It is unlikely that the complex human performance, such as that required to safely drive a car, can be measured at roadside."

This is an astounding statement from the government's leading FSTs researcher. Burns went on to say that the goal of FSTs is to "provide statistically valid and reliable indication of a driver's BAC rather than indications of driving impairment." Burns fully admits "SFSTs do not directly measure driving impairment."

These statements are useful in any case involving roadside tests. The government should never be allowed to say that the tests show anything about an accused's ability to drive. These statements should be even more powerful in cases in which there is no breath test result.

Because FSTs show nothing about someone's ability to drive, they are not probative of anything other then correlation to a BAC. If there is no BAC admitted into evidence, for what purpose can the FSTs be admitted?

There are two basic types of DUI cases that don't have breath test results. The first is a refusal case, where the accused did not take the breath test. The second is a case in which the accused did take the test, but a skilled DUI lawyer got the test suppressed. The analysis above regarding the relevance of FSTs should apply equally to both cases. Judges, being human, are likely to treat the two differently however.

In any event, this type of argument should be raised in all cases in which there are FSTs but no BAC. The best way to change erroneous popular beliefs is to continue pointing to the truth. The truth is FSTs cannot detect impairment.

Last Friday, I went to Seattle for a driving under the influence seminar. It was fun because I got to see a lot of my old friends from when I used to practice DUI law in Washington. It was also nice to get reenergized about DUI defense.

One of the speakers at the seminar was Stave Jones. Jones is a nationally recognized DUI defense lawyer. He is a board member for the National College of DUI Defense. Although I'm a member of the college, this was my first opportunity to see Jones speak.

The focus of Jones' talk was how to highlight all the normal behavior in a typical DUI arrest. When cops pull someone over for DUI they always write down all the bad stuff in the police reports. When you really think about all the things that happen during a traffic stop, however, there are tons of normal things that the cop doesn't bother to record.

For example, most people pull their cars over just fine. Most people get their license and registration with no problems. Most people are able to get out of their cars. And so on. All of these activities take coordination and concentration. Moreover, they are normal behaviors not overly complicated agility tests like the typical roadside tests.

This wasn't the first time I had heard this advice of course. In fact, the version I like using is a little different then the way Jones does it. I like to first lock the officer into his report, then ask about all the stuff he didn't put in his report. That way the officer can't just say he doesn't remember. The technique is basically the same as Jones'. Every good trial lawyer has to use his own style of course.

As is so often the case when listening to a great DUI lawyer though, it was really the passion for DUI defense that impressed me. This practice area is tough. Driving under the influence is an unpopular crime. It is always nice to be reminded that there are other dedicated people out there fighting the good fight every day.

Yesterday, after posting about the Amish man who was pulled over for driving his buggy while intoxicated, I had a discussion with some of my colleagues at the National College for DUI defense. The NCDD is an organization of some of the best DUI lawyers in the Country. I am privileged to be one of only a handful of Oregon DUI lawyers who are members.

A fellow member from Pennsylvania informed me that cases like this do arise in that state every so often. Because these cases have been litigated, the law in Pennsylvania is settled. It is not a DUI in Pennsylvania if one is in a horse drawn cart.

The fact that police are still arresting people for behavior that is settled as non-criminal is disturbing. The Amish man in this case will now have to defend himself against a charge that should never have been brought in the first place. Even if the charge is dropped, he will have to go through the stress and expense of facing a potential criminal proceeding.

People sometimes ask me how I can defense "those people." It is important to remember that "those people" are real people. People accused of DUI are often treated unfairly whether they are Amish or not. People usually assume they are guilty, and it is easy to make light of their plight.

My post yesterday shows that even a DUI professional can be tempted to overlook the real human drama involved in a driving under the influence charge. Facing a criminal accusation is a traumatic event in most people's lives. Most people lack the knowledge and skill to defend themselves against the government. And as this case shows, the government is often just plain wrong. I find it an honor to stand with "those people."

Police arrested an Amish man for driving his horse cart while under the influence last night. The man was reportedly asleep behind the reins in a slow moving buggy. Police responded to the buggy when an off-duty officer called in. The off-duty officer noted that the buggy was straddling the center line and that the horse was walking slowly.

Police had to bang on the buggy door to wake up the Amish man who had passed out. The man had bloodshot and watery eyes, showed signs of intoxication, and smelled of alcohol. Police report that the man had a breath alcohol reading of 0.18.

If this had happened in Oregon, it could probably be a prosecuted as a DUI. In Oregon, it is a crime to drive a vehicle while under the influence of intoxicants. A vehicle is defined as "any device in, upon or by which any person or property is or may be transported or drawn upon a public highway and includes vehicles that are propelled or powered by any means." This definition likely applies to horse drawn buggies, although I can imagine an argument that buggies are not drawn by their own power. A DUI does not require a car in Oregon. It is possible to commit a DUI while riding a bicycle for example.

If this case were in Washington, it would not be a DUI. The law there requires a "motor vehicle." Since a horse drawn buggy does not have a motor, it could not fall under Washington's statute.

No matter what the State, you don't see too many cases like this.

A few weeks ago I noted that a person should not consent to a search of their vehicle during a traffic stop. On what seems like a more obvious note, a person should not assault an officer either.

Yesterday in Sherwood, Oregon, police stopped a car because the passenger was not wearing a seatbelt. The passenger, refused to give any identification and told the police what he did was not against the law. The passenger then attempted to roll up his window on the officers and to hold his door locked. When police tried to open the door by force, the man kicked a police officer. Now instead of a simple seat belt ticket, he will likely be facing a serious assault charge.

This case brings up an important point. Defense lawyers are always talking about how important everyone's rights are. The way to protect those rights is in court. Even if you believe your rights are being violated, you should always be polite to the police. You should certainly never resort to violence.

The role of the defense lawyer is to argue for the suppression of evidence. This is much easier when someone is polite and cooperative. Indeed a person can still assert his rights while being polite. If stopped or questioned, you should give your identification if asked. You should assert your right to speak with a lawyer, and you should remain silent.

In the case from Sherwood, the man apparently believed the police did not have the right to pull him over. When that is the case, a competent lawyer can attack the stop to get is kicked out of court. There is very little that can be done at the roadside. Even if the stop is totally illegal, there is nothing to be gained from assaulting an officer.

Defense attorneys can get a little cynical about policeman sometimes. It is important to remember that they have a very difficult job. We should hold them to a high standard. When police deviate from that high standard, we should suppress evidence and dismiss cases. If police deviate from the high standard intentionally, we should punish them. All of that should be done after the fact. When dealing with the police in the field, be polite, assert your rights, and keep your hand and feet to yourself.

Everyone knows that when someone is arrested on suspicion of driving under the influence, he is given a breath test. Most people don't really understand why those tests are given or how they work. Breath test devices are developed and sold by competitive companies. These companies fight hard to keep their trade secrets secret. For this reason, it is sometimes hard to know exactly how (or if) the devices work without seeing the source code used by the computer chips inside the machines. Generally, however, we do know how the machines operate.

Oregon uses the CMI Intoxelizer Alcohol Analyzer Model 8000. It is a very impressive name. The last version was the 5000, and it is unclear why CMI skipped to 8000 for this version. Other popular competitors are the DataMaster and the Alcosensor.

Since I practice DUI law in Oregon I will focus on the intoxelizer. The intoxelizer uses inferred spectrometry to measure the changes in vibration rates when molecules are exposed to inferred light. Although this sounds complicated, it is really pretty straightforward. When someone blows into an intoxelizer, the breath is taken into a chamber. Inside that chamber, the breath has inferred light shone upon it. A sensor then measures the vibration rates of the molecules in the breath. Because different molecules have different vibration rates, CMI claims they can identify the concentration of alcohol in the breath.

One problem with this method of alcohol detection is that other molecules have similar vibration rates. Therefore, the intoxelizer could create false positives if someone has high levels of other chemicals such as acetone in their breath. This is common among people with diabetes.

Another problem with breath testing in general is that it assumes a correlation between breath and blood. This problem is present even if breath testing is accurate for breath alcohol. Once the breath is measured, a computer program spits out a number. That number is supposed to be the blood alcohol concentration. To generate that number the computer assumes that the person who blew is an average person. The computer assumes that the person's lung capacity and cardio vascular system work at the some functionality as the average person.

These assumptions make testing easy for the breath testing device manufacturers and the governments who buy the devices. It is far easier to celebrate a machine to an average person then to the actual individual being tested. The assumptions do introduce an added layer of doubt into the accuracy of the machines however.

As a DUI lawyer licensed in both Oregon and Washington, I see a lot of cases on both sides of the river. This is especially true practicing here in the Portland area. There are many differences between Oregon and Washington law. One area that creates a lot of confusion among clients is DUI sentencing.

Oregon DUI law prevents plea-bargaining in driving under the influence cases. However, on a person's first offense, he may enter into a diversion program if he qualifies. By going into diversion, the person can avoid a DUI conviction. The mandatory sentence for DUI does not go up on a second or third offense, although judges will typically give a higher sentence.

Washington DUI is the reverse. Plea-bargaining is allowed. There are strict mandatory minimum sentences that go up sharply on someone's second and third convictions in seven years.

Where Oregon has diversion, Washington has deferred prosecution. A deferred prosecution can only be used once in a lifetime, but it can be used on any DUI charge not just the first. Therefore, most Washington DUI lawyers advice people not to enter into a deferred prosecution on a first offense.

Both of these systems have strengths and weaknesses from a public policy point of view. From a practical stand point, they create interesting differences. Due to the availability of diversion, some clients consider a first offense in Oregon to be less daunting than a first offense in Washington. Conversely, because of deferred prosecution, many clients are more comfortable with a second or third offense in Washington than in Oregon.

It is important to remember that each DUI charge is potentially very serious. Many people are unsuccessful in diversion and deferred prosecution. However, both programs can be very helpful when approached properly. In either state, is important to talk with a qualified DUI defense attorney before making any decisions.

With the Olympics coming up sooner than most of us realize, a lot of Oregon and Washington sports fans will be heading to Canada in a few months. What many won't realize is that a DUI arrest here could cut their trips short. Under Canadian law, a person with a DUI conviction is criminally inadmissible.

This is an issue I dealt with a lot as a DUI lawyer in Seattle. Here in Oregon, it is slightly less common, but it is still a real concern. Canadian law prevents entry to anyone who is convicted - and sometimes even accused - of a crime that would be a felony if committed in Canada.

Unlike Oregon, where a first offense driving under the influence charge is a misdemeanor, in Canada a DUI would be treated as a felony. For this reason, DUI falls in the class of crimes that prevent entry into Canada.

If you have a DUI conviction in your past, you must first show that you are rehabilitated before you will be allowed to enter Canada. This can be a very lengthy process. It must have been five years since your conviction, and sometime it takes as much as a year just to get the paperwork through the Canadian government. People are also ineligible to enter Canada if they have pending DUI charges against them. This means just for being arrested, you may be prevented from entering Canada if you are still awaiting trial.

If you have been charged with a DUI and you are found not guilty, your entry into Canada should not be bared. Therefore, if entry into Canada is important to you, and you are arrested in Oregon, it is vital that you fight your case to the fullest.

Multnomah County Circuit Judge Jerome LaBarre found David Adelman guilty of driving under the influence on Monday. Adelman is the head basketball coach at Lincolin High School in Portland. His father is Rick Adelman, the former Portland Trailblazer.

Adelman's case was an interesting one in which disgruntled parents continually followed Adelman and called the police to report suspicion of DUI. Apparently parents did this repeatedly. In this particular instance, Adelman was arrested and prosecuted for DUI based on the parent's call.

Adelman's lawyer argued that the police lacked probable cause to arrest him for DUI. The Judge in this case found that there was probably cause. The Judge also found that there was enough evidence, including a breath test, to convict Adelman of the allegations.

The ultimate conviction is not what gets my attention about this case. I don't know the facts of this case well enough to comment on this particular instance. The pattern of having disgruntled acquaintances repeatedly call the police until something sticks is disturbing.

People sometimes take the attitude that things like this don't matter, because the system ended up getting a drunk driver off the road. I am a DUI defense attorney, but I am a citizen and a driver too. I don't want intoxicated drivers on the road. There are other behaviors I worry about as well though.

I don't want people to use the police force as grudge enforcers. I don't want police to detain and arrest people without good reason. I don't want all of our rights to be eroded. The way to prevent these things is to dismiss cases in which they happen. Again, I don't know the specifics of this particular case. As a DUI lawyer and a citizen, however, I don't like the idea of begrudged informers repeated calling to police hoping for something to stick.