Oregon DUI Lawyer Blog

A woman in Virginia was stopped by police at a DUI checkpoint. When police heard strange noises coming from the woman's trunk, the woman told them she was carrying a goat. Police opened the trunk and found a bound live goat.

This case turns out to have an international aspect. The woman told police that she was getting the goat as a gift for her Kenyan friends. Additionally, the woman told the police that she was a native of the United Kingdom. The driver told police that it is common practice to carry goats in the trunk across the pond.

Notwithstanding the odd goat rescue, DUI checkpoints are controversial. Criminal defense lawyers, civil libertarians, and people who generally don't like to be stopped by the police typically oppose DUI checkpoints as an invasion of privacy. Law enforcement, prosecutors, and organization such as MADD typically support DUI checkpoints as a way to deter drunk driving.

The federal constitution does not prohibit DUI checkpoints. Therefore, the debate over whether or not to allow them is held at the state level. In the pacific north west DUI checkpoints are unflavored. Neither Oregon nor Washington allows for checkpoints. Anecdotal evidence indicates that transporting goats in trunks is also out of vogue here.

A move is afoot to increase DUI penalties in Oregon. A proposed bill to the Oregon Legislature would increase penalties for DUI. Under the terms of the proposed legislation, a third conviction would carry a mandatory 90 day jail sentence. This change is encouraged by Steve Doell from Oregon Crime Victims United.

In a related proposal, Kevin Mannix is sponsoring an initiative to make a third offense a felony. Currently a fourth DUI is a felony. Mannix is a former state legislator and gubernatorial candidate. Other suggestions include allowing for police road blocks, and lowering the presumptive intoxication limit.

Because I practice DUI defense in both Oregon and Washington, I have had an opportunity to compare the two different systems. Washington has a graduated penalty system that is one of the harshest in the nation. On a second offense, a driver is looking at between 30 and 45 days minimum. On the third offense, a driver is looking at 120 days minimum. These penalties are much harsher than the minimum penalties required in Oregon.

The Washington system is different in one key respect, however. There, prosecutors can negotiate DUI cases. This ability to negotiate means that many second and third offense cases do not go to trial in Washington. When someone is faced with the possibility of a harsh mandatory sentence if he is convinced, often a negotiated resolution seems attractive.

Due to my experience in Washington, I predict unintended consequence if Oregon increases DUI penalties without allowing for negotiated settlements. I predict that far more cases will end up going to trial. Many of these cases will result in convictions. If prosecutors were allowed to negotiate, many of those trials could have been avoided. Without the ability to negotiate, the incentive to go to trial will be high, and the court will be burdened with an increased caseload.

I advise most of my Oregon clients to take their second or third offense cases to trial. The way I see it, there is very little to lose in taking a case to trial when the prosecutor is only offering what a judge will likely give after trial anyway. That being said, a lot of people in the Oregon system do plea guilty to a second or third offense DUI. Partly this is because other lawyers may have different philosophies and advise their clients differently. Partly it is because some clients really do just want to get their cases over with.

If the penalty for a second or third DUI is guarantied to be harsh, there will be more of an incentive to take those cases to trial. If convicted, a person will get a harsh sentence. The person cannot just get her case over, however. If a person pleads guilty, she will still get a harsh penalty. With no negotiations and harsh mandatory sentences, the only way possible way to avoid a harsh sentence will be to take a case to trial.

I take Doell and Mannix at face value on their proposals. I imagine they really are trying to make Oregon a better and safer place. I doubt, however, that they have considered the burden that these measures would place on the criminal courts. When Oregonians consider changing DUI laws, they should also consider the practical affect those changes will have on the criminal courts.

Back in December, I reported on a man charged with DUI in a stolen Portland police car. This seems like the type of thing that would almost never happen. Only a few months later, however, lighting has struck again. Recently, another man was arrested in Salem DUI in a police car.

In this case, police first heard reports of a white mustang driving recklessly. When police found the white mustang, it turned out to be a stolen police car. An 18 year old man was passed out in the car at the time. The man was charged with unlawful use of a motor vehicle, driving under the influence, and reckless driving.

As I noted a few days ago, there is an affirmative defense to physical control. In this case, the man was not actually caught while driving. There may be circumstantial evidence of driving in this case. The news reports are not clear on that point. If this case is actually a physical control case, however, there could be a defense. That may not help with the unauthorized use of a police car charge however.

Former Jesuit High School basketball coach Kathryn Adelman Naro was convicted of driving under the influence. Naro resigned as Jesuit's coach in 2008 after pleading guilty to a earlier DUI. Naro is the daughter of former Blazer coach Rick Adelman. Rick Adelman's son David Adelman was also convicted of DUI earlier this year. David Adelman was the basketball coach at Lincoln High School.

This type of family pattern is unfortunately quite common. Whether genetic or environmental, it is no unusual to see multiple members of the same family experience alcohol related issues. When these issues raise to the level of alcohol abuse or addiction, professional help and treatment are often needed to break the cycle.

Legally, it is important to remember that every person is an individual. Most people are aware of the correlation between families and alcohol issues. Of course each case must be judged on it's own. Just because someone's family member has committed a DUI or other alcohol related offense, we should always presume that a person is innocent unless proven guilty.

This point seems self-evident. It is worth stating, however, as I have heard police and prosecutors talk about criminal defendants as likely guilty because of something their siblings or parents did. Luckily, we still live in a county in which this type of comment is not permitted in Court.

A Pennsylvania woman made headlines over the weekend for getting arrested for drunk driving with seven kids in her car. The woman reportedly had a breath alcohol level of .379. While I have repeatedly posted about the problems with breath testing, this is an extraordinarily high breath test which does indicate an extreme level of intoxication.

In Oregon, driving while intoxicated with children in the car may lead to an additional charge of Reckless Endangerment. In Clackamas County, prosecutors also often ask for higher penalties if a driver has children in the car. This is true both in their initial offers and in their sentencing recommendations to the judge.

In addition to higher penalties, the presence of children is an unsympathetic fact. At trial, most jurors will be unforgiving of driving after drinking at all when there are children involved. In cases with low BACs, jurors might be forgiving for a driver who was alone. Most jurors tend to think that even if it is safe for an adult to drive alone after having a drink, a driver should never drive children after drinking.

This attitude may be logically inconsistent. It is a difficult attitude to address as a DUI defense attorney though. Since people's instincts to protect children run so strongly, most people are more likely to toughen their position on driving alone after drinking than to ease their position on driving with children.

In Oregon, a DUI can be tried to either a jury or a judge. In cases in which children are present, it might be a good idea to try a DUI case directly to a judge given most juror's attitudes about drinking and driving with children present. Of course, judges are people too. They also carry the same instincts to protect children. Judges, are trained and experience in compartmentalizing in a way that jurors are not however. This can lead to a more detached examination of the facts.

Ultimately, whether or not to try a case to a jury or a judge is very case specific. The decision cannot be made on broad generalities. Whether tried to a judge or a jury, a DUI case is more difficult when there are children present in the car.

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.

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.

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.

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.

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.

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.

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.