Oregon DUI Lawyer Blog

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.

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.

I love my job. I consider it a privilege to represent my clients, and I truly enjoy helping them through their times of need. The only thing I really don't like about being a criminal defense lawyer is dealing with other people who pretend they don't understand.

Every criminal defense lawyer will tell you the number one question they get: "how can you defend those people." I have tried to explain the importance of the constitutional rights I fight to protect every day. I have tried to explain that often criminal defense lawyers are the only bulwark between the government and the people. Although I'm sure the people I explain these concepts to do in fact understand, they always just ask the same thing. "But, how can you represent those people."

What they can't understand is that I like "those people." Especially with DUI cases, any of us could be one of "those people" after just a few mistaken decisions. People like to think that cops always have it right and that criminal defendants are bad guys. In my experience, life is usually more complicated. Criminal defendants are just people, and so are cops.

Two recent cases bring this point home. In Colorado, a 21 year veteran of the State Police was arrested for DUI. News reports indicate that the trooper suffers from post traumatic stress disorder and that he has booked himself into treatment. I feel bad for the trooper. It sounds like he is a real person with real problems, just like ever other criminal defendant I've seen.

In Riverside California, the ex-chief of police was also arrested for DUI. The chief allegedly took some prescription pills and drank at least 11 drinks before crashing his car. The chief was coming from a topless bar at the time. Again, is sounds like the chief is a real person with real issues going on in his life. This sounds like so many of "those people" I have seen over the years.

When I see news reports like these, I don't feel smug. I don't buy into the idea that cops should be seen differently than anyone else. Cops are real people. Criminal defendants are real people. I like helping people, and I feel bad for people who are in trouble. I doubt cases like these will make people see how I can represent "those people." But it is a nice reminder for me.

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.

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.

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 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.

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.

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.

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.