Oregon DUI Lawyer Blog

The Oregon Legislator is considering a bill that would change the DMV implied consent hearing process. Under the current law, DMV hearings are conducted in person. This session, Rep. Judy Stiegler introduced House Bill 3601 which would have changed that procedure. The bill, as introduced by Rep. Stiegler, would have added a $200.00 fee for requesting a DMV hearing and it would have required that all DMV implied consent hearings were conducted over the telephone.

Most DUI defense lawyers consider in person DMV hearings valuable tools in preparing a defense. The DMV hearing takes place shortly after the incident, to the events are typically fresh in the officer's mind. This freshness allows the officer to testify from more than what he typed in his report. DMV hearings are last formal that court. This informality allows for an easier exchange between a testifying officer and a questioning lawyer.

The combination of these factors, often leads to valuable testimony. Offers often bring up details in DMV hearings that prove to be important in later court hearings. Since DMV hearings are conducted under oath, an officer cannot change his testimony. Rep. Stiegler has strong ties to prosecutors. It is believed that the intent of this bill was to prevent defense lawyers from properly questioning witnesses at DMV hearings.

Luckily, thanks to the lobbying efforts of lawyers and even honest minded law enforcement, the bill has now been amended. As it now reads, the bill would make a presumption of a telephonic hearing. An in person hearing would be allowed if either the police or the defense requests it. The bill also requires that the testifying officer be actually involved in the investigation. The $200.00 fee was dropped altogether.

If this bill does pass, it will create some minor changes to the DMV hearing process. Most of these changes will likely be administrative. There will be one more thing to request when asking for a hearing. Thankfully, however, the bill no longer threatens to undermine a valuable tool for the defense in fully examining a DUI allegation.

One of the most interesting and enjoyable aspects of the law is the way in which different areas of law play against each other. Historically, different areas of law developed to deal with different aspects of society. As a criminal defense lawyer, I deal mostly with the criminal code, the Constitution and the rule of evidence. Other lawyers deal with family law, torts, or property law. Occasionally, these areas intersect. When they do, the results can be fascinating.

An example of this phenomenon is seen in the recent Oregon Court of Appeals case of State v. Kurtz. In Kurtz, a driver was charged with attempted elude and resisting arrest for trying to get away from the Warm Springs Tribal Police. When the man was stopped, he was outside the reservation. Therefore, persecutors brought these criminal charges against the man in State court.

During trial, the driver argued that the government could not prove it's case because a tribal policeman does not fall under the elude or resisting arrest statutes. Both statutes make it a crime to do something to a "peace officer." The Court of Appeals agreed.

The Court held that a tribal policeman is not a "peace officer" under Oregon law because he is not organized under the State of Oregon. Under United States Federal Law, The Warm Springs Nation is a self-governing sovereign political community. This means that Warm Springs reservation is not organized under the State of Oregon. Therefore, the Warm Springs Tribal Police are not peace officers under Oregon Law.

Indian Law developed to handle the governance of Native American reservations and Native American people. Although in the past, Indian Law was primarily about controlling Native Americans, today that area of law is largely concerned with preserving the unique rights and privileges of Native American's within the broader United States legal system.

Oregon Criminal Law was developed for an entirely different reason: to control certain behaviors within the State of Oregon. In this case, the intersection of Oregon Criminal Law and Indian Law is interesting.

When Oregon Criminal law was developing to include organization under the State of Oregon in the definition of "peace officer," people likely never thought about tribal police. Likewise, when Federal Indian Law developed making Warm Springs a sovereign entity, no one likely thought about traffic stops outside the reservation. Nevertheless, the result of these two areas of law developing as they did is that tribal police are not peace officers in Oregon.

In Oregon, it is possible to expunge certain crimes off a person's record. This can be done for both convictions and arrests. Most people want crimes removed for their records in order to make employment and housing related background checks easier. Others simply want to take the last step in putting something behind them. Either way, expungement is a straightforward process.

In order to get a record expunged, one must file a motion to set aside a conviction with the court where you were convicted. A copy must be served on the District Attorney in that case. The District Attorney has the option of opposing expungements. The filing fee for a motion to set aside convictions is currently $250.00. There is also an $80 filing fee with the State Police. That fee only applies to conviction expungements not arrests. In addition to the motion and fees, you must also include a copy of your fingerprints.

If the court approves your expungement, your fingerprints and the proper paperwork will be forwarded to the Oregon State Police. The State Police are in charge of maintaining criminal records. Once the State Police received a court order, they will remove your record.

Expungement is a great opportunity, but there are limitations. Expungement is only available for misdemeanors and Class C felonies. It is not available for Class A or B felonies. It is also unavailable for sex crimes, traffic crimes, and criminal mistreatment. In order to qualify a person must have completed the terms of his conviction, must have no pending criminal charges against him, and must have no other convictions on his record in the 10 years preceding the expungement. If a person does qualify for expungement, it is a great opportunity.

Man Who Hit Portland Police Car Get's Light Sentence

Last September, a Portland man got into a head-on accident with a police car. The man, who had been drinking, veered out of his lane and struck the police car. At that time, there was also a television crew from the show Cops present. The driver only had a breath alcohol reading of .04, so prosecutors did not charge him with Driving Under the Influence. He was charged with Reckless Driving and multiple counts of Assault though.

Last week, the driver pleaded guilty to three counts of Assault IV. Yesterday, a judge sentenced the man to pay a $3000.00 fine and to a year of probation. All things considered, this is a remarkable sentence. Luckily, neither the officer nor the television crew were seriously injured. Such injuries would have likely lead to more serious charges.

Alleged Shooter in WSP Case Arrested.

A few days ago, I reported about the shooting of a Washington State Patrol Trooper. Police have now arrested a suspected shooter. The suspect is the husband of the driver who had been stopped for DUI. Prosecutors will likely charge the man with attempted murder later this week.

The other update arising out of this case is good news for the Trooper. He was released from the hospital. Although reports say the Trooper still has bullet fragments in his scull, considering he was shot in the back of the head, it is good news indeed.

On Saturday night, a Washington State Patrol Trooper Scott Johnson was shot in the head in Long Beach, WA. Trooper Johnson was assisting a fellow Trooper in a DUI arrest. The first Trooper had earlier stopped a woman and arrested her for DUI. The other Trooper took the arrested driver to the station for processing while Trooper Johnson stayed with the driver's car.

During DUI arrested, it is common to tow the driver's car. In this case, Trooper Johnson was performing an inventory of the car while he waited for the tow truck to arrive. During that time, an unidentified man came up to Trooper Johnson and shot him in the head. The tow truck driver found Trooper Johnson.

Trooper Johnson was transported to the Oregon Health Sciences University in Portland for treatment. Miraculously, the Trooper's injuries are not life threatening. Police are still looking for the gunman, and the WSP announced a $26,000 reward for information leading to the arrest and conviction of the shooter.

This incident highlights a tragic reality about police work. It is extremely dangerous. Whenever police make a traffic stop, they keep this danger in mind. Many of the practices and procedures police use during traffic stops are designed with this danger in mind. Police typically refer to these concerns as officer safety.

Whenever someone is pulled over, it is a good idea to bare officer safety concerns in mind as well. Showing respect of officer safety will typically make a police encounter go more smoothly. On the other hand, failing to show respect for officer safety, will typically escalate the tension in a police encounter.

During any police contact, a person should always keep their hands in sight. If in a car, this means the driver should keep his hands on the steering wheel when the officer approaches. The driver should only reach for his wallet or papers when the officer can clearly see him. At night it is a good idea to turn on the car's interior lights. This will help the officer see into the car. When a person is out of a car, he should keep his hands out of his pockets at all times.

It is also important to remain calm. Police encounters are inherently tense situations. Many people get emotionally when they are worried about the possible consequences of the contact. In some cases, people feel that the police are violating their rights. This can lead to anger and frustration. Angry and belligerent behavior is threatening to police who are worried about their own safety. It is important to remember that in our system, a skilled attorney can challenge any problem in court.

When a person is calm and shows that he is not a threat, police are able to relax. This more comfortable environment lead to better police encounters. Police officers are people, and their perceptions are impacted by their states of mind. It stands to reason that a more relaxed police officer will perceive someone differently than a tense police officer. During a police encounter it is in a person's best interest to have the police at ease. This is accomplished by respecting officer safety.

Yesterday the Supreme Court of Oregon handed down two important cases dealing with traffic stops. The first was State v. Machuca. As I posted yesterday, that case undermined one of the constitutional objections to blood tests. The Supreme Court also handed down State v. Rogers/Kirby.

Rogers and Kirby were two cases that were combined for appeal. In both cases, the defendants were stopped for traffic violations. The police officers obtained all the information needed to write traffic citations. Before letting the defendants go, however, the police asked questions designed to explore possible criminal behavior. Following the questions, both defendants consented to searches. These searches resulted in contraband.

The Supreme Court held that the results of the searches must be suppressed. An officer does have the lawful authority to stop a vehicle for a traffic violation. That stop may last so long as necessary to write an citation for the violation. Although the Court held that an officer may make unrelated inquiries during this process, the officer cannot extend the process in order to conduct a criminal investigation. If stopped, one should never consent to a search.

This case brings to mind an article I wrote for the Washington Criminal Defense Lawyers Association. In that article, I argued that DUI enforcement squads could be unconstitutional in Washington because it delayed the investigation. That is to say, when an officer stops a driver, then calls for a DUI specialist to do the criminal investigation, the delay could be unconstitutional. Oregon and Washington law is slightly different on this point, but this new case could open the door to a similar augment here in Oregon.

The Oregon Supreme Court overturned the Court of Appeals in State v. Machuca today. Late last year, the Court of Appeals held that breath and blood tests were inadmissible searches because the implied consent advisement is coercive and the State had not shown exigency.

Generally, a search requires a warrant. There are a few exceptions to this warrant requirement. The Supreme Court today focused on the exigency exception. Under the exigency exception, police do not need a warrant in cases where evidence is likely going to be lost. The Court held that because alcohol is metabolized, it is likely to be lost. Therefore, exigency exists in most cases. Although the Court did not go so far as to create a per se exigency exception, it did say that exigency will exist in all be rare cases.

Because the Court found exigency, it expressly declined to address whether or not the implied consent advisement is coercive. The Court noted that the implied consent advisement was operating in the manner intended by the legislature. This observation is neither here nor there in terms of the constitutionality consent however. Because the Supreme Court did not address the Court of Appeals holding regarding consent, that holding should still valid law.

Of course, the State must still lay the foundation for breath and blood tests. Tests must still adhere to testing protocols. This decision means that trial courts will be very unlikely to suppress tests based entirely on the lack of a warrant.

One area where this decision could have an interesting effect is in test refusal cases. The Supreme Court noted today that the legislature did not want to compel blood tests. Nevertheless, if there is truly exigency, police could obtain blood without a warrant or consent. If this is the case, then in refusal cases, the lack of blood could be a significant point. As is often the case, more litigation will be required to fully sort at the implications of this decision.

According to news reports, an Oregon Man was sentenced to six years in prison after being convicted of his sixth DUI. The man was convicted in California for driving with a BAC of .22. The man had one prior conviction from California and four prior convictions from Oregon. His most recent conviction before this case was from 2005.

This case highlights the serious nature of DUI charges. Driving under the influence penalties tend to get higher depending on a person's criminal history. Some states, such as Washington for example, use a system of rising mandatory minimum sentences. Under that type of system, a judge must impose a higher penalty on a second or third offense. In Oregon, as long as a DUI is charged as a misdemeanor, the mandatory minimum sentence is 48 hours. Judges will give higher sentences as the number of priors goes up.

Because of this building effect, it is important to take even a first offense DUI seriously. Although no one ever thinks he is going to get arrested for drunk driving again, it does happen. Tragically, some people who get accused of DUI suffer from alcohol addiction. For these people, the chance of a subsequent arrest are even higher. With these people, hopefully the first DUI arrest will trigger treatment. When Judges don't believe that treatment is working, however, they will simply remove a person from society through incarceration. That result can be seen in this case. A good DUI lawyer will help his client's get into treatment, but ultimately recovery is up to the client.

Super Bowl weekend will see increased DUI patrols throughout the State of Oregon. According to a recent press release from the Oregon Department Of Transportation, police departments across the State will intensify efforts at DUI enforcement over the weekend.

Groups involved in the effort include, the Governor's Committee on DUII, The Oregon State Police, The Oregon Association of Chiefs of Police, and the Oregon State Sheriff's Association. These groups represent all major law enforcement agencies focused on DUI arrests in Oregon.

Police are always on the lookout for impaired drivers. In fact, many cops admit that whenever they pull someone over at night they assume it is a possible DUI. In many ways, an increased awareness of DUI is not a true departure from the norm. It is more likely a symbolic gesture designed to deter drunk driving. People should be cautioned, however, that police will be out on the road looking for possible drunk drivers to stop.

It is also important to remember that, in Oregon, police cannot stop a driver without reasonable suspicion that a traffic violation occurred or probable cause that a crime is being committed. Just because police suspect there are more people driving after drinking, the police still need a valid reason to make a traffic stop. As noted in an earlier post, if stopped for DUI, it is best to be police. If you think you were unlawfully stopped, a DUI lawyer can attack the stop in court. The roadside is never a good place to litigate.

One consequence of a DUI conviction is a license suspension. Not being able to drive is a serious incontinence to many people. Although public transportation is a viable option for many people in Portland, in outlaying areas the inability to drive is severely limiting. For this reason, it is important to fight for your license at both the DMV and in the courts.

When someone's license is suspended, it might be tempting to simply drive anyway. Driving with a suspended license due to a DUI is a separate crime. If someone is caught driving after his license was suspended for either a DUI conviction, or after an administrative suspension for failing or refusing a breath test, he will likely be charged with a new misdemeanor of DWS. There are other types of license suspensions as well, but the focus of this post is license suspensions arising out of driving under the influence.

Like any other crime, a driving while license suspended charge could carry fines, custody or probation. Indeed, there is a mandatory fine of $1000.00 for a DWS where the underlying suspension was due to a DUI conviction. Moreover, it could be a probation violation for the underlying DUI charge that resulted in the license suspension.

For all these reasons, it is best to avoid a DWS charge altogether. If a driver is charged with DWS, however, the next best thing is to immediately talk to a criminal defense lawyer who understands the interplay between the DWS charge and the original DUI.

A Portland man has filed a $25,000 lawsuit arising out of a DUI arrest from last summer. The man was arrested in Idaho. During the DUI investigation, police opened the man's Native American medicine bag. According to Native American religion, the magical power of the bag was destroyed when it was opened.

Reports about the DUI arrest indicate that the man had a BAC of .16. At this level, the man must have certainly smelled of alcohol. It is very likely that the man also exhibited the effects of having consumed alcohol. If these facts were present, it makes opening the medicine bag suspect.

Generally, police cannot conduct a search absent a warrant. There are a few exceptions to this requirement. One of these exceptions is the search incident to arrest doctrine. This doctrine says that police may search a person after he is lawfully arrested. The United States Supreme Court recently restricted the doctrine of search incident to arrest in Arizona v. Gant. Nevertheless, police still have fairly broad abilities to search a person's clothing after a lawful arrest.

The question remains, however, for what were the police looking. There is little change that a Native American medicine bag was going to hold a weapon. While police could have been hoping to find drugs, in this case the man appeared intoxicated on alcohol not drugs. Therefore, the search was likely simply a fishing expedition.

From a criminal defense perspective, I have mixed feelings about this type of civil lawsuit. On the one hand, I am happy to see someone standing up for his rights. On the other hand, some people argue that civil litigation is the proper remedy for civil rights violations not the exclusionary rule. Most criminal defense lawyers consider the exclusionary rule to be safeguard of constitutional rights.

In this case, the magistrate held that the search was lawful. Therefore the exclusionary rule does not apply. Generally, when a search is unlawful, the results of that search are suppressed. This exclusion is thought to be the best deterrent against civil rights violations by the police. Some argue, however, that the evidence should not be excluded. Instead these people argue that the best remedy is a civil lawsuit.

This case will likely have no impact on the ongoing debate regarding the exclusionary rule. Nevertheless, whenever I see a case like this I have mixed feelings. I am happy that Portland man is standing up for himself. I just hope the government does use his courage to argue that future unlawful searches should be allowed into criminal cases.