Oregon DUI Lawyer Blog

Any new parent will tell you that having an infant is exhausting. A fascinating new study out of Australia shows that some new mothers, and presumably fathers, experience a level of fatigue that could be analogous to impairment from intoxicants. The study was produced by the Queensland University of Technology's Centre for Accident Research and Road Safety.

The study noted that new mothers often go weeks or sometime even years on end with interrupted sleep. This patter of sleeplessness can have serious effects on a person's mental sharpness. The study states that this level of fatigue could create concerns regarding driving tasks.

Most interestingly, the study's authors state that a person's ability to drive could be affected to the same extent as a person with a blood alcohol concentration of .10. This level is legally intoxicated in Oregon and all other States.

As a DUI lawyer, this study is particularly interesting. It is fascinating to realize that tiredness alone could cause alcohol like effects. It is also frightening to think that a new mother could potentially be misidentified as under the influence simply based on fatigue.

Under Oregon DUI law, a driver who blows a .00 but shows the signs of intoxication can be prosecuted for driving under the influence of drugs. Imagine the nightmare for a new mother who was arrested under such a circumstance. This scenario does seem unlike. But if this profession has taught me anything it is to expect the unexpected.

Oregon criminal law has a unique provision that could result in large damages awarded during a DUI trial. When a driver is under the influence and injures another person, the driver could face additional penalties beyond traditional DUI consequences. These other penalties typically include additional criminal charges. In Oregon, the driver can also be ordered to pay damages directly to the injured party.

In most states, monetary damages are only awarded to injured parties through the civil law. This means, when a person is injured be someone committing a crime, the injured party has to sue the other party. Such a system results in two court cases. One case deals with the alleged criminal conduct. The other case deals with any monetary liability.

Under Oregon's Victim's Rights Law, a judge to award damages to a victim when someone is convicted of a crime. That is exactly what a St. Helens woman is asking a judge to do. According to news reports, the woman suffered serious brain injuries during a DUI accident. She is not asking a judge to award her $125,000 in damages following the driver's criminal conviction.

This provision of Oregon Law has not yet been used heavily in DUI cases. If people start being awarded damages, however, it is likely that claims for damage will increase. In any event, the possibility of direct liability to an injured party is just one more way in which driving under the influence charges can carry heavy consequences.

A young man in Eugene is now facing 8 charges after after allegedly drinking and getting into an accident. The young man, who is only 19 years old, hit a 63 year old woman in a head on collision. According to reports about the accident, both drivers were taken to the hospital. After being released, the man was arrested on a panoply of charges including DUI, Reckless Driving, and Assault.

As I noted in an earlier post about vehicular homicide and assault, under Oregon law, prosecutors can charge drivers with a variety of other crimes if the drivers are involved in accidents while drinking and driving. This is especially the case when a driver injures another person.

This case in Eugene highlights the serious nature of driving under the influence. Drinking and driving is extremely dangerous. When asked how to avoid a DUI, I always tell people not to drink and drive at all. In the young man in Eugene is convicted of these crimes, he could be facing serious consequences.

Because DUI is so dangerous, it is an emotionally charged crime. Unfortunately this makes defending a DUI charge all the more difficult. Any criminal defense will have challenges. Driving under the influence cases also adds what many lawyers call the "DUI exception to the Constitution." That is to say, Courts often appear to allow otherwise inadmissible searches or evidence into DUI cases.

Drinking and driving is not illegal. It is only illegal if someone is intoxicated. Because of the emotion tied to DUI, there is a constant push from organizations such as MADD to make drinking and driving more and more criminalized. Coupling that push with some of the case law which tends to favor the government, makes DUI cases challenging. It is also why professional DUI attorneys play such an important role in protecting people accused of these crimes.

Oregon law requires an ignition interlock device (IID) for drivers who have been convicted of driving under the influence of intoxicants. The key word in this requirement is "convicted." An IID is not required for people who avoid a conviction. This means IID are not required if a driver completes diversion. Although an IID is not required following an administrative suspension, one is required to get a hardship permit.

In order to reinstate a license after a DUI conviction a driver will be required to install an IID on his car. The IID will be required for one year following the first conviction and two years following the second conviction. Ignition interlock devices are provided by third party businesses. Drivers are typically required to lease the devices from the providers as well as paying for installation.

Ignition interlock devices work by attaching a portable breath tester to the ignition system in the car. The driver is required to blow into the device in order to start the car. The driver is also periodically required to blow into the device while the car is running in order to keep the car running.

Because of the problem of false positives, people who have ignition interlock devices installed on their cars should avoid any form of alcohol. Mouth alcohol from mouthwash or cough medicine could potentially cause a false positive on an IID.

Driving under the influence carries serious consequences. The consequences of a DUI are potentially even higher if someone has a pilot's license.

Pilot's licenses are governed by the Federal Aviation Regulations. These regulations require a pilot to self report any DUI conviction or administrative sanction results from a DUI. This means that if a Pilot is arrested for DUI in Oregon, he could have report both a DMV suspension and a criminal convicted. Pilots must report these sanctions within 60 days.

A certificate, rating or authorization can be suspended or revoked for a year if a pilot has 2 motor vehicle actions within 3 years. The FAA defines "motor vehicle actions" to include both DUI convictions and administrative license suspensions. For this reason, a pilot could conceivably suffer a suspension of his pilot's license based on one event of drinking and driving. A single count of refusing to take a breath test can result in a year suspension of a certificate, rating or authorization.

A pilot who is accused of driving under the influence should contact a DUI attorney immediately. The best way to protect a pilot's license from a DUI conviction or administrative sanction is to avoid them altogether. It is also important to note that most airlines will not hire a pilot with a DUI conviction on his record regardless of his licensing status. This makes defending a DUI all the more important for pilots.

When most people think of the consequences of a DUI conviction, they think of license suspensions or criminal consequences. For most people, these consequences will be the most significant results of a potential DUI conviction. In Oregon, these consequences are government by ORS Chapter 813. There are additional potential consequences if someone has or is thinking about getting a Coast Guard Issued License or Merchant Marine Documents (MMD). These consequences are governed by Federal Law.

Coast Guard Credentials, in either the form of a license or MMD, are required for most jobs in the maritime industry. The United States Coast Guard oversees the licensing process at the Regional Exam Center (REC) level. A DUI conviction could impact someone's ability to obtain or keep Coast Guard Credentials.

When an applicant applies for Coast Guard Credentials, he is required to disclose all criminal history including any past DUI convictions. The local REC will run a national background check on the applicant. If the applicant has a prior DUI, the director of the REC will make a determination regarding the applicant's suitability. Factors that will be considered are: the number of convictions, the severity of the incidents, the time since the conviction, and the applicant's recovery. To aid the REC in this determination, the applicant will be required to submit court records from his criminal case.

A DUI conviction can also impact existing Coast Guard Credentials. If the Coast Guard finds out about a DUI conviction, they will hold an investigation. At the very latest, a DUI conviction will become an issue when it is time to renew an MMD or Coast Guard license.

As a DUI lawyer, I dealt with these issues more often when I was practicing in Seattle. These issues can be important to people in the Portland area as well though. If Coast Guard Credentials are an issue for you, please make sure your DUI attorney knows.

According to associated press reports, a Newberg Oregon man was arrested for driving under the influence after he hit a police car. The police car was apparently parked with an officer inside. The officer was taken to the hospital for treatment. Thankfully the officer only had minor injuries. The incident is a good reminder, however, of how dangerous driving and driving can be.

If a driver is intoxicated and he injures or kills another person, he could be charged with more than a simple DUI. If a driver kills someone, he could be charged with manslaughter, or negligent homicide. This is true whether or not the driver had been drinking. Likewise, a person could be charged with serious assault, or vehicular assault of a bicyclist or pedestrian, or reckless endangerment if he injured or even could have likely injured another. Some additional elements beyond DUI would need to be proved for all of these crimes.

Many of these crimes are measure 11 crimes. This means that there are heavy mandatory penalties if convicted. For example, Manslaughter 1 caries a mandatory 10 year sentence. Even Manslaughter II caries a mandatory sentence of 75 months. Even in cases where the government only adds misdemeanors such as reckless endangerment or reckless driving, a driver can be facing a serious barrage of charges.

None of these statues are particularized to DUI. They could apply to a variety of cases but could be used by prosecutors to go after drivers who had been drinking under certain circumstances. In addition to these laws, Oregon has an Aggravated Vehicular Homicide statute. To convict someone of Aggravated Vehicular Homicide the government must prove something about the driver's mental state. The government must also prove a causal relationship between the driving and the death. This statute only applies to people with prior manslaughter or negligent homicide convictions. Aggravated Vehicular Homicide is a Class A felony.

Under Oregon DUI law, there are different consequences for a DUI depending on whether or not the driver has a previous DUI conviction. License suspensions are longer if a driver has a prior offense. This is true of both administrative suspensions through he DMV and suspensions arising out of DUI conviction. Also, the minimum fines are higher. Moreover, diversion is only available on a first offense within 10 years.

A conviction from another state can count as a prior conviction for the purposes of Oregon law. This applies to any conviction from another jurisdiction involving the operation of a motor vehicle, airplane, or boat while under the influence of intoxicants. It also applies to any conviction from another jurisdiction for operating a motor vehicle, airplane, or boat with a blood alcohol concentration above that jurisdiction's legal limit. However, there is an exception for prior convictions of people under 21 where there is a lower limit for people under 21.

This definition of prior offense applies regardless of what the prior offense is called. Some jurisdictions refer to driving under the influence differently. In Oregon, driving under the influence of intoxicated is officially referred to as DUII. However, most people commonly call it DUI. Other places refer to DWI or driving while intoxicated. Still other states have OUI or operating under the influence laws. Regardless of the name, these all count as priors under Oregon law if the offense involves driving while intoxicated.

Because the federal government ties transportation funds to certain DUI provisions, all states now have a presumptive limit of .08. If a state were to adopt a lower limit, violation of that lower limit would constitute a prior offense even if it were not a DUI in Oregon. There may be room to argue that certain out of state statutes do not fall under this definition depending on how those statutes are worded. Organizations like the National College for DUI Defense can be helping to your lawyer with that type of information.

It is important to be honest and upfront about your criminal history when speaking with your DUI lawyer. Whether or not you have a prior conviction could play an important role in how your lawyer approaches your case. Keep in mind that everything you tell your attorney is confidential.

In an earlier post, I discussed how the slope detector on the Intoxilyzer 8000 does not work. I also posted a dramatic video showing the Intoxilyzer failing when someone rinsed his mouth with alcohol. Of course, in a real DUI case, the driver would never swirl vodka in his mouth right before blowing into the breath test machine. Today I would like to discuss one way in which the lack of a functioning slope detector is significant in real DUI cases.

Many people suffer from gastroesophageal reflux disease or GERG. This condition is sometimes popularly referred to as acid reflux disease. It is widespread and common in the population. People with GERG experience involuntary minor regurgitation.

This condition is significant to DUI cases because GERG can result in mouth alcohol. When someone with GERG has been drinking, he my involuntarily burp alcohol back into his mouth. Although not as dramatic as swirling vodka in the mouth before taking a breath test, the results can be the same.

In deed, GERG's undermining of the reliability of breath tests has been proved. In a peer reviewed paper, Dr.s Kechagias, Jonsson, Franzen, and Andersson demonstrated that people with GERG obtained false positives on breath alcohol readings.

Sadly, although this study was published over a decade ago, it is not widely known in the halls of justice. Dedicated DUI attorneys continue to introduce the study, however. To the extent the government is made aware of this study, the standard response is that the slope detector will prevent any false positives.

As we have previously seen, however, the slope detector in the Intoxilyzer 8000, the very machine used in Oregon, does not work. Therefore, there is no real safeguard against false positives.

Under Oregon Law, there are two ways in which a person can lose his license for DUII. The first way is through the DMV administrative process. The second way is through the criminal justice system. These are separate and distinct processes.

The DMV can suspend a driver's license if the driver is arrested for DUII when the driver has either a BAC of .08 or above or when the driver refuses to take a breath or blood test. The length of a DMV suspension depends on the driver's history and whether or not the driver took the breath or blood test. This type of suspension can be between 90 days to 3 years.

A DMV administrative license suspension can be imposed even if a driver is found not guilty of DUII in a criminal proceeding. A driver's license can also be suspended if he is convicted of DUII in a criminal proceeding. Suspensions arising out of a conviction can vary in length between 6 months for a discretionary suspension in a controlled substances DUII to a revocation in a 3rd offense or felony DUII.

Because there are multiple ways to lose a license in a driving under the influence case, a driver should consult with a DUI lawyer as soon as possible. The DMV only gives drivers 10 days to request a hearing. If the hearing is not requested in time, the driver will lose his license automatically.

A few weeks, ago I had a DMV hearing with an officer where we talked about the field sobriety tests. During the officer's direct testimony he indicated that he had followed all of the NHTSA procedures and protocols. Of course, he said he had observed a number of clues and that based on these clues he suspected my client was under the influence of intoxicants. Since I've been a DUI lawyer for a while, none of what the officer said surprised me.

What did surprise me is how little the officer knew about the Horizontal Gaze Nystagmus test. The officer was quite good at describing HGN. He knew just what he was looking for, and by golly he found it. He was also very eloquent at describing what the presence of HGN meant to him. He did not, however, seem to know how to actually perform the test. Incidentally, here is a video of what the officer was supposedly looking for.

On cross-examination, I asked the officer a number of standard leading questions. When it came to the test itself though, I just started asking open-ended questions. When I asked the officer how far he held his pen from my client, he said "about 18 inches." The latest NHTSA SFST training manual says that the stimulus is to be held 12 to 15 inches from the subject's nose. Right away, the officer had admitted that he conducted the test incorrectly.

In this case, the testimony came out in a DMV hearing. It ended up that the HGN was not a significant factor in that proceeding. If this case goes to trial, however, the testimony the cop gave at the DMV hearing could prove to be very useful. As I have pointed out in my recent post about FSTs and weight, if standards are not followed the entire test is compromised.

Different lawyers have different styles, and indeed I don't do it the same way every time. There are a number of ways to show that an officer doesn't know the test and more importantly didn't do it right this time. Any good lawyer will tall you, it's important to use a style that works for you. This simple example is just an illustration of a fundamental principal of DUI defense: when the government designs a complicated test, they will probably screw it up.

This video of a DUI arrest is really too good to pass up. Aside from the humorous value, there is an important lesson here. Recordings of arrests are vital to getting an accurate picture of what really happened.

Although we don't know for sure what the police reports in this case said, we can guess from the officer's statements. The officer says that he is going to count this as a refusal. It is clear from the tape, however, that the man being arrested was not paying attention to the implied consent form when it was read. Indeed, on the tape the officer starts laughing, and it does not appear that he was able to clearly read the entire form.

These two facts could potentially lead to the suppression of the man's refusal. Such suppression could have a dramatic impact on the case. Although this case takes place elsewhere, in Oregon and most other jurisdictions, a refusal caries harsher penalties then a normal driving under the influence charge.

As a mentioned in an earlier post, with video you do have to take the good with the bad. In this case, the man does appear someone intoxicated on the video. Even so, a skilled criminal defense attorney would probably benefit from the video. If the refusal was suppressed, then the video could possibly be kept from the jury since it contained the refusal. In any event, it is a truly entertaining video.

The limitations to Field Sobriety Tests are making some national news. ABC news recently ran a report about a man who was found not guilty of DUI because he was obese. The report strongly implies that the man somehow got out of a drunk driving charge based on some sort of novel defense.

This report indicates that the field sobriety tests which the man took were published by the National Highway Traffic Safety Administration. What the report fails to say is that NHTSA itself says field sobriety tests are not effective for overweight people. According to the 2006 SFST Student Manual, people who are more than 50 pounds over weight have trouble performing the test.

As I have pointed out earlier, FSTs are correlated to specific breath alcohol concentrations. This means that performance on FSTs merely indicates a probability that an individual has a certain breath alcohol concentration. NHTSA admits that there is no way to measure one's ability to drive through the use of FSTs.

The way FSTs are designed to draw this correlation is through standardization. When done properly, the FSTs are administered exactly the same every time. The officer conducting the tests looks for exactly the same clues every time. When everything is as standardized as possible, NHTSA claims inferences about a correlation to breath alcohol can be draw.

When standardization is not followed, however, no inferences can be drawn. Also in the student manual, NHTSA says in bold capital lettering that if any one of the standards is changed the validity of the test is compromised. That isn't some slick DUI defense attorney talking. That is NHTSA itself.

With this in mind, it makes sense why the FSTs are ineffective for overweight people. People who have more trouble than average doing the test cannot be measured in a standard way. Without a standard measure, the test is compromised.

It is nice to see the limitations of the FSTs getting some attention. It would be nicer if the coverage pointed out the true reason for the limitations.

In a story that is making me consider adding a "you can't make this stuff up" tab, a woman stole a postal vehicle in Portland on New Years. This follows the recent theft of a Portland police car on Christmas Eve. As in the police car case, after being arrested for stealing the vehicle, the woman was also charged with DUI.

The woman allegedly stole the postal vehicle then drove it into Vancouver. She was stopped in Vancouver when the Washington State Patrol popped her tires using a spike strip. This case is of particular interest to me as a DUI lawyer licensed in both Oregon and Washington.

Under the recent Washington State Supreme Court Case State v. Rivera-Santos, a driver can be charged with DUI in both Oregon and Washington states if he drives while intoxicated from one State to the other. In this case, it is not clear if the Portland woman will be charged with anything in the State of Oregon. If she is charged in Oregon, a similar challenge as that raised in Rivera-Santos might be raised in under Oregon law.

Because the post office is a federal office and because the alleged act involved transporting stolen property across state lines, the women could also be charged with Federal crimes. It seems unlikely that the Feds will take much notice of this type of case. If the woman is charged with a Federal crime, however, she can be liable for that crime in Federal Court in addition to any criminal liability in either of the States. This double liability does not violate the double jeopardy clause because of the doctrine of separate sovereigns. This is a similar reason to that given by the Washington Supreme Court in Rivera-Santos.

As in prior posts, the take away message in this case seems so obvious I hate to even point it out. Just as one should never kick a cop or steal a cop car, one should not steal a postal vehicle.