DUII defense lawyers argue that not all prior DUII convictions should be counted for purposes of the lifetime revocation statute.

Over the years, Oregon law has provided for different penalties for DUII. In the 1970’s and early 1980’s, a person who drove with a blood alcohol concentration of .15 or less was subject only to a fine and the offense was treated as a non-criminal infraction. Persons with a blood alcohol concentration over .15 were subject to criminal penalties.

In 1985, the Oregon Legislature’s comprehensive revision of the Vehicle Code and amended many of the traffic laws. This legislation also lowered the maximum blood alcohol concentration to .10 (and later .08) and made all DUII charges crimes.

The 2003 lifetime revocation statute provides that the revocation is triggered by previous violations of ORS 813.010, the DUII statute that was renumbered in 1985.

DUII defense lawyers raised the question of whether pre 1985 convictions should or should not count as prior convictions for purposes of the lifetime revocation statute.
In State v. Kellar, ___ Or ___ (2011)(Slip Op, February 17, 2011) the Oregon Supreme Court directly addressed the first of these questions. The Supreme Court held that criminal violations of the pre 1985 DUII statute do count toward the lifetime revocation. The Court noted that there is still an open question as to whether or not non-criminal infraction DUII convictions would count, but declined to address the question because it was not necessary for them to answer it for the purposes of the Kellar case.

Eventually, this issue will be decided by the Appellate Courts in Oregon. Until then, the issue should be raised and argued whenever the State is trying to persuade a judge to count one of these convictions and impose the lifetime revocation.

If you are facing a lifetime revocation of your driving privileges because of an older DUII infraction conviction or have a conviction in another state which might be an infraction, you would be well advised to consult a lawyer to see if the older conviction really counts in calculating whether or not you have three qualifying DUII convictions.

As Oregon DUII lawyers, we at James F. O’Rourke, Jr. And Associates carefully examine all prior DUII convictions for irregularities which may prevent the convictions from being used to revoke driving privileges for life.

Under the proposed rules, there would be a minimum of 50 hours treatment over six months for first offenders and 100 hours of treatment over one year for a person convicted of a second or subsequent DUII. These changes would substantially increase the cost of treatment for DUII offenders, who would be forced to pay for the added treatment sessions and the additional urine testing.

Increasing treatment duration can have positive effects for persons convicted of DUII who suffer from alcohol or drug dependence. However, a significant number of people who receive DUIIs are not in need of extended treatment, and only need education and a short exposure to the treatment environment.

At James F. O’Rourke, Jr. and Associates we carefully review our clients’ needs and history and help our clients select qualified treatment providers who meet their individual needs and satisfy the requirements of a DUII Diversion or treatment ordered after a conviction.

These hybrid DUII charges have become more common in recent years as law enforcement has become better trained to screen for drug intoxication. Every police agency now has one or more “Drug Recognition Experts;” officers who are specially trained to detect drug use. The testing is very detailed and involves taking vital signs, observing pupil response to light and looking for other physical signs of drug use. It is not unlike having a basic physical examination at your doctor’s office. A trained Drug Recognition Expert who properly administers the battery of tests is allowed to offer an opinion at trial, as an expert, that a person was under the influence of a certain type of drug and alcohol.

While a Drug Recognition Examination is important in a DUII/Drug prosecution, it is not absolutely necessary for the state to obtain a conviction. In a recent case, the Oregon Court of Appeals held that an admission to recent drug use with alcohol use can support a conviction even without a Drug Recognition Expert. In State v. Harmon (Decided December 15, 2010), the Court dealt with a case where an officer observed a subject who appeared “dazed” and performed poorly on field sobriety tests. Also, the defendant admitted to consuming marijuana four hours before the arrest, as well as consuming alcohol, although there was not a strong odor of alcohol on his breath.

The Court of Appeals held that the admission of consumption of marijuana four hours before, the admission of drinking and the poor field sobriety tests was enough for a jury to find that person guilty of DUII, even though there was no Drug Recognition Examination or testimony of a Drug Recognition Expert. This was true even though the jury had no evidence before it on how marijuana and alcohol interact to produce intoxication.

The lesson is to exercise care when using any amount of alcohol when taking controlled substances, including those prescribed by a doctor. The police are waiting and trained to detect and prove that your impaired by a combination of alcohol and drugs.

As Portland DUII and Drug Crime attorneys, we at James F. O’Rourke, Jr. and Associates are committed to the vigorous defense of DUII cases based on impairment cause by the cumulative effects of alcohol and controlled substances.

The Board found numerous instances of persons suffering from hallucinations, high blood pressure, irregular heartbeat, seizures and vomiting among people smoking the “incense.” Given the risk to public health, the Oregon Board classified synthetic marijuana as a Schedule 1 controlled substance, meaning that the substance has no legitimate medical use. The rule took effect on October 15, 2010.

This action effectively makes the possession of any amount of “spice” a Class B Felony, subject to the same penalties for the possession of substances such as heroin.

On November 24, 2010, the Federal Drug Enforcement Administration filed a notice of intent to make a temporary rule placing synthetic marijuana in Schedule 1, making possession of the substance illegal under federal law. The new rule takes effect 30 days from the date of the announcement and will remain in effect for one year while Congress decides whether or not to make the changes permanent,

As Oregon Drug Lawyers we at James F. O’Rourke, Jr. And Associates have over thirty years of experience representing persons accused of drug crimes in State and Federal Courts.

In this test the officer is trying to observe a physiological phenomenon known as nystagmus, an involuntary jerking movement in the pupil as the eye tracks horizontally from side to side across the field of vision. The theory behind the test is that the officer can observe nystagmus at certain points in a person’s field of vision and correlate that to a person’s blood alcohol concentration. In the law enforcement community, this is the most important test to determine if a person is under the influence. Generally, it will be the first field sobriety test administered. Most officers believe that they can actually predict a person’s actual blood alcohol concentration from this test.

The HGN test is not without controversy. Because it is scientifically based test the prosecution must demonstrate that the results of the test are accurate and reliable in order to get them admitted into evidence, which involves laying an exacting foundation for the admission of the officer’s conclusion that his or her observations prove a person was under the influence.

The Oregon Supreme Court has previously held that, generally speaking, there is sufficient proof that an HGN test can provide proof of intoxication and a properly trained officer can so testify in court, if the test was be properly administered according to the “scientific protocols.”

The Oregon Court of Appeals dealt with the issue of what happens when the test is not properly administered. In State v. Ingram (Decided November 17, 2010) the Court dealt with a case where the arresting officer admitted that he had not followed his training in administering the HGN test and had not observed testing protocols. In Ingram, the Court of Appeals determined that, since the evidence is scientific in nature, failure to follow scientific protocols rendered the entire test inadmissible. The Court’s holding holds DUII officers to the requirements that they follow their training and perform the correct procedures in conducting the test.

As Oregon DUII Attorney’s we at James F. O’Rourke, Jr. and Associates vigorously assert our client’s right to have the HGN test evidence kept out of court if the police fail to follow the correct procedures for administering the test.

Measure 73 makes DUII a felony if a person has two prior DUII convictions within ten years of the current offense.  The measure also mandates a minimum 90 day jail sentence for all persons convicted of felony DUII.

The measure was opposed by most newspaper editorial boards because of the cost of the measure at a time when the state has a three billion dollar budget deficit. The Secretary of State estimates that the measure will cost an additional 1.4 million the first year and that could balloon to as much as 29.1 million in the fourth year and every year thereafter.

Frankly, I believe the costs are underestimated. The number of people who receive a third DUII in ten years is larger than one might think. People pick up multiple DUIIs because they have a problem with drugs or alcohol that is out of control. It is not uncommon for people with alcohol problems to pick up DUII crimes in clusters. I suspect the number of Felony DUIIs will increase dramatically.

Most persons who receive a third DUII within 10 years do not need to be imprisoned to stop drinking and/or drinking and driving. Most are able to stop with the help of residential and/or community based out-patient treatment. Imprisonment is an extreme, expensive and somewhat ineffective solution to repeat DUII conduct. There are excellent in-custody alcohol and drug treatment programs, but the legislature has placed so many restrictions on entry into these programs that they are underutilized and underfunded. Plus, community based treatment is more effective in treating alcohol and drug dependency and preventing repeat DUII conduct.

As Oregon Felony DUII lawyers we work with our clients to prepare individual sentencing mitigation plans that help persuade judges that a severe punishment for Felony DUII is not necessary. More importantly, we help our clients break the cycle of multiple DUIIs.

Computer technology has placed an enormous amount of information at the fingertips of the police, literally. The laptop computers in a standard patrol car are positioned so that they can be accessed easily. A few keystrokes to run a license plate produce the car owner’s name and whether or the insurance is in force. The officer can then quickly determine whether the owner’s license is suspended and his or her criminal history. An officer can have all of this information in seconds.

If a person has suspended license the police have instant probable cause to initiate a traffic stop. If a person has a history of DUII offenses, they are likely to be closely scrutinized by the police for signs of impaired driving. This is why a person with a prior DUII or a Diversion has a higher likelihood of being stopped by the police and arrested for DUII if they are drinking and driving.

In fact, the Portland Police are experimenting with “license plate recognition” technology (LPR). A vehicle outfitted with LPR can drive down a street or through a parking lot and digitally scan each license plate and check for stolen vehicles and people with suspended licenses. The officer only has to turn the system on and wait for an alert.

The legal challenges to this practice have just begun. The Oregon Court of Appeals has just weighed in on this issue. In State v. Davis (Decided September 22, 2010) the Court of Appeals held that such random checks do not violate any protected privacy interest and are not a standardless and unfettered exercise of discretion by the police that is forbidden by the Oregon Constitution. The Court of Appeals decision was not unanimous, which increases the possibility the Oregon Supreme Court will decide to review the decision.

As an Oregon DUII Defense Attorney James F. O’Rourke, Jr. represents persons charged with crimes in Oregon courts. He carefully reviews every case to determine whether the actions of the police conform with the standards set by the Constitution.

The offenses are similar in terms of the severity of the punishment.  Both are Class A Misdemeanors carrying a possible maximum jail term of one year and/or a possible maximum fine of $6,250.00.  Convictions for either offense results in suspension of a person’s privilege to drive a vehicle or operate a boat.  Also, both offenses are subject to their own “Implied Consent Law.”  Under the Implied Consent Law a person is deemed to have consented to taking a breath test in advance, simply by choosing to operate a vehicle on a public highway (or “premises open to the public;” e.g. parking lots) or operates a boat on “any waters of the state.”  Under this law, a person’s refusal to take a breath test can be used against them in court; a jury can be told that a person’s refusal of the breath test is evidence of guilt.

These offenses also share an unusually broad scope in terms of the types of vehicles and water craft that are covered by the law.  Many people don’t know, and are surprised to discover, that a person can commit a DUII while riding on a bicycle, because a bicycle is included in the legal definition of “vehicle.”  Similarly, the term “boat” is not limited to motor boats and sailboats, it also includes row boats and inflatable rafts (thankfully, inner tubes are excluded).

BUII also carries some odd differences from DUII.  For instance, a person can commit BUII by merely being in “actual physical control” of a boat.  So if you are guiding a boat that is simply adrift you can still be charged with the crime.  More importantly, BUII applies to the owner of a boat who knowingly allows an intoxicated person to operate his boat.  So a sober owner who turns the helm of his motor boat over to an intoxicated friend can be arrested and charged with BUII along with the actual operator.  Moreover, if two people are intoxicated and jointly rowing a raft, both can be charged with BUII because both are in “actual physical control” of the boat.

Also, there is no specific legal provision for Diversion in a BUII case as there is with a DUII.  So, a BUII first offense is potentially more serious than a DUII where a person is eligible for the formal Diversion program.  There are, however, ways to negotiate a Diversion type disposition with the state as a part of the process of resolving the case which is essentially the same effect as a DUII Diversion.

We at James F. O’Rourke Jr. and Associates offer high quality legal services to persons charged with DUII and BUII.  We have a detailed knowledge of the similarities and differences of the offenses and we aggressively defend clients charged with these serious crimes.

The Legislature has now enacted a provision that requires a $2,000 minimum fine for anyone who was arrested and had a breath test result showing a BAC (Blood Alcohol Concentration) over .15.

The thinking here is dubious at best.  As an experienced Oregon DUII Lawyer I can state from experience that enhancing penalties has little effect in deterring people from driving under the influence.  Most people have no idea what the penalties for DUII are in Oregon until they get a DUII.  Even if they do know about the large fines, we have to remember that a DUII offense is almost always the product of diminished judgment caused by drinking.  Deterrent information is not useful to people under the influence of intoxicants – alcohol.

Finally, it seems particularly misguided to tie the amount of the fine to a person’s BAC.  Most DUII drivers are unaware of the degree of their intoxication and cannot estimate their BAC based on consumption.  Since a person will be unable to tell the difference between whether they are at a BAC of .12 or .15 it seems unfair to treat them differently in terms of a fine.

James F. O’Rourke is an experienced Portland DUII Lawyer.

Since 1984, when the Oregon Supreme Court decided State v. Brown, court’s in Oregon have been forbidden from allowing the admission of a polygraph test, even if the parties agree to admit the results into evidence, in the course of a civil or criminal trial.   But, not every proceeding is a trial.

Polygraphs are routinely used by the courts to determine compliance with conditions of probation.  Convicted sex offenders are often asked to confirm that they have not viewed pornography or had unauthorized contact with minors by the administration of a polygraph examination.  Many probations for persons on intensive supervision for DUII require the probationer to confirm abstinence from alcohol and drugs by polygraph.  Morever, since the Court of Appeals ruled in State v. Hammond that a judge can use a failed polygraph to find a person in violation his or her their probation, a judge can also use a passed polygraph to find a person not guilty of being in violation of his or her probation.

Recently, the Oregon Court of Appeals determined that polygraph results can be admitted in the course of hearing conducted under the Administrative Procedures Act (APA).  In Waisanen v. Clatskanie School District, the Court dealt with a teacher who appealed his dismissal for having sexual contact with student some 30 years previously.  The former student came forward, reported the incidents and passed a polygraph.  The polygraph results were admitted at the teachers termination hearing and the appeal of his termination.  The Court of Appeals noted that under the APA evidence that “prudent people rely on in their serious affairs” is admissible.  A passed polygraph, in these circumstances, met that standard of admissibility.

Mr. O’Rourke’s experience as an Oregon Criminal Defense Attorney is that polygraph examinations can be useful in defending clients in criminal prosecutions.  A polygraph result may not be admissible at trial, but a passed polygraph, conducted by a well trained polygrapher, can do much to influence a District Attorney’s decision to bring charges or not.  We have also had success using polygraph results in defending our client’s in probation violation proceedings, as well as in sentencing hearings criminal charges.