Why don’t Oregon police officers want to be recorded on video by civilians? Several recent events would suggest that police do not want to be recorded, and are struggling to find a way to deal with it.

Schlossberg v. Solesbee

Last week, a jury in Eugene’s U.S. District Court determined that police sergeant Bill Solesbee arrested Josh Schlossberg without probable cause, used excessive force and seized Schlosberg’s video camera without a warrant.

Schlossberg had been handing out leaflets when Solesbee appeared and told him he had to move along. Schlossberg told Solesbee that his lawyer had advised him that he was engaged in a lawful activity. Solesbee then went into a building and shortly returned at which point Schlossberg took out a video camera and informed Solesbee that he was recording their conversation. Solesbee accused Schlossberg of blocking pedestrian traffic, and then asked if Schlossberg was taping him.

Solesbee and Schlossberg then argued over whether Schlossberg had notified him that he was recording the conversation. Sergeant Solesbee demanded the camera be given to him saying that it was evidence.

According to Schlossberg’s attorney, Solesbee then charged at Schlossberg, grabbed for his camera and threw Schlossberg to the ground. Solesbee seized the camera and arrested Schlossberg. Schlossberg was charged with resisting arrest and Intercepting Communications. Prosecutors eventually dismissed the charges.

Hao Xeng Vang v. City of Beaverton and Jason Buelt

In 2008, Hao Xeng Vang noticed a friend being detained by Beaverton Police outside of a bowling alley. Vang believed the detention was unjustified and began recording the events using his cell phone. His phone was unconcealed and he stated aloud, “I have it on camera.” As another one of his friends was subsequently arrested, he continued to record and narrated the events on his cell phone. After ten minutes of recording, officer Buelt arrested Vang and seized his cell phone. Vang was sent to Washington County Jail on charges of Interception of Communications.

Vang was released from Washington County Jail the following day, however his cell phone was not returned to him at that time. Almost two months later, Vang’s cell phone was finally returned with the audio and video files from the night of his arrest deleted. Officer Buelt deleted the files a week before the cell phone’s return.

What does Oregon law say about recording/videotaping the police?

Most situations will be governed by two separate, but related laws.

If you record a conversation that you have with a police officer, ORS 165.540 will most likely apply. This law prohibits a person from obtaining the whole or any part of a conversation by means of any device if not all participants in the conversation are specifically informed that their communication is being obtained. Oregon courts have taken the “specifically informed” requirement to mean an “unequivocal warning that the conversation is being ‘obtained.’” Having a video camera in an officer’s face with the record light blinking will NOT be sufficient. Thus, you must actually tell the officer that you are recording the conversation. Violation of this law is a Class A misdemeanor.

It is important to point out that ORS 165.540 carves out an exception allowing people to record conversations during press conferences, public speeches, public or semi-public meetings, rallies, and sporting events. This exception allows people to video tape or record rallies or marches like the Occupy Portland movement. But remember, most one-on-one interactions with a police officer typically will not fall within this exception.

If you, like Mr. Vang mentioned above, are not a participant to the conversation that is being recorded, ORS 165.543 “Interception of Communications” will most likely apply. This law differs from ORS 165.540 in that it specifically requires that the person recording or “intercepting” a conversation or communication, not be a party to the conversation. It also differs in that you may record the communication only so long as some parties to the communication have given prior consent. Violation of this law is a Class A misdemeanor.

The chart below may help in distinguishing the two laws.

	ORS 165.540 – Obtaining whole or part of communication	ORS 165.543 – Interception of Communication
Are you  a party to the conversation?	YES	NO
Rules for compliance	“specifically inform” officer or other party/parties that you are recording the communication	Get prior consent of at least one of the parties being recorded
Penalty for violation	Class A Misdemeanor	Class A Misdemeanor

ORS 165.540 – Obtaining whole or part of communication ORS 165.543 – Interception of Communication

Are you a party to the conversation? YES NO

Rules for compliance “specifically inform” officer or other party/parties that you are recording the communication Get prior consent of at least one of the parties being recorded

Penalty for violation Class A Misdemeanor Class A Misdemeanor

Knowing when you can record a conversation with a police officer without opening yourself up to criminal liability can be difficult to determine. Both laws outlined above are very similar but have distinct requirements to be in compliance. The Schlossberg v. Solesbee case summarized above illustrates the confusing application of the laws. Schlossberg was charged with unlawful Interception of Communication but was a party to the communication he recorded. Unlawful Interception of Communication does not apply to Schlossberg’s situation. The law which governed Schlossberg’s interaction with officer Solesbee should be ORS 165.540 Obtaining Whole or Part of Communication.

If a Eugene prosecutor does not know what law applies to a situation involving someone recording their conversation with a police officer, it seems safe to assume that non-lawyers might also have a hard time knowing which law applies.

New law on the way?

In an attempt to clarify this confusing area of the law, House Bill 2993 was proposed in the Oregon 2011 session. If signed into law, Bill 2993 would essentially allow people to record conversations of any public official or law enforcement officer acting in their official capacity. This would do away with any requirements of specifically informing officers that they are being recorded or getting prior consent of one or more of the parties involved in the communication.

House Bill 2993 is still a ways off from becoming law if ever. Currently, it is best to consult with an attorney if you believe you may find yourself in a situation involving the need to record a conversation with a police officer.

Jury nullification is one of the oldest tools at the juror’s disposal; it was promoted early on by the likes of John Adams and John Hancock. Through the process known as jury nullification, the jury can refuse to apply the law and render a verdict they feel is just, even if it doesn’t square up with the law or the instructions of the judge. In Oregon, for example, there are crimes with mandatory minimum jail sentences that can be very lengthy. It could be that the jury believes defendant X did do the thing alleged, but feels the punishment is extreme given the circumstances and facts and that the punishment would not benefit the public. They can simply find defendant X not guilty and, subject to appeal, that would be that.

Jury nullification can also be employed when juries feel the law itself is unjust. In fact, there was recently a grassroots movement in a county in Montana to refuse to convict based on most marijuana crimes. The judges in the county ended up having to farm jurors from other counties and, even then, found it hard to find jurors who hadn’t heard about or agreed with the movement. As such, the police in the county issued a statement that they would be citing people for and investigating these crimes differently due to the public’s expression through jury nullification. As a citizen of this great country of ours, it is important that we not simply keep our heads down, never attempting to address our concerns with government action. This is our country and must remain so. If you or someone you know is suddenly facing court action, call a Portland attorney who knows more than just the bare minimum of the law. There may be aspects of the law you’ve never even heard of. Don’t go it alone, call us today.

As jurors, it is our job to determine the facts. What really happened and what is just opinion? If that is the case, wouldn’t it benefit all to watch a video and audio recording of the event itself? Wouldn’t it be helpful to watch those field tests, to listen to the defendant’s speaking, to watch for that sway? It most certainly would and this is why it is perpetually frustrating that, despite all this, audio and video is virtually never available in DUII cases. The reason is usually, I forgot to turn it on or the recording was corrupted/can’t play or I lost it. Often this brings out a feeling of helplessness in someone accused of a DUII. It doesn’t need to be so, if you use a Portland DUII attorney who knows that this is a violation of your due process rights, even if the recordings were genuinely lost by mistake.

The courts declared it a violation of due process in State v. Zinsli, 156 Or App 245 (1998). Your defense attorney will need to establish that ”some” evidence of this recording would have aided in your defense. For the reasons mentioned above, and more, how could this not be the case? In Zinsli, the state unintentionally lost the video of the field sobriety tests, but the court held that it doesn’t matter if it was a simple mistake because so much of the case is based on opinion and a video would help the jury aid in interpreting those opinions.

Having an experience Portland DUII attorney on your side in these situations is vital, because the court notes the remedy is not simply to toss it all out. Some of the evidence may be exculpatory, so the court allows the defense to choose what evidence from the video or audio is admissible and to what they object. This is not only a huge decision, but it may have very significant ramifications for your case. If you or someone you know is facing a possible DUII conviction, give us a call today and let us be there with you, in your corner. 

Most of us know what a landlord can expect from us:

• Rent paid on time
• Returning the property in a good condition
• Notice before moving out
• Fulfillment of the terms of the lease or rental contract.

But what can a tenant expect from the landlord?

The Oregon Residential Landlord Tenant Act governs a majority of landlord/tenant relationships. ORLTA requires residential landlords in Oregon to provide a habitable residence for tenants and to make repairs to the property when they are needed.  What are some things that may violate this provision?

• A lack of weatherproofing/waterproofing (roof, windows, exterior walls and doors)
• Adequate heating equipment maintained in good working order
• Working locks and window latches
• … And many others.

If your landlord is NOT providing a habitable living condition, you may have remedies under the Oregon Residential Landlord Tenant Act. In some cases, failure to provide habitable conditions can be a defense to eviction, even if the eviction is based on the non-payment of rent.  If your rental is not habitable and you are facing eviction for failure to pay rent, you can ask the court to determine how much money your landlord owes you for damages caused by the landlord’s failure to provide a habitable living space and apply that to the rent owed.

If you are facing eviction for non-payment of rent, and you believe you have a claim against the landlord for failure to provide habitable living conditions, documentation of your claim is important.

• Take pictures of any leaking exterior walls, windows, or doors
• Document when you called the landlord to advise them of the conditions and request repairs
• Obtain estimates from professionals for the cost to repair the complained of conditions

Proper documentation of the conditions and your reporting of the conditions will make a defense to eviction for non-payment of rent much easier to prove in court.

You can always call us today if you have any questions.

If you are from another state, often you will not have had the chance to partake in diversion and in some cases the conviction from your prior state was obtained in a way that wouldn’t pass muster here in Oregon. For a prior conviction to be counted in Oregon, it must be a conviction under a sufficiently similar statute to Oregon’s DUII statute.  To determine that, one must have a very good grasp of the relevant caselaw to allow him or her to determine, based on that history, whether or not that prior conviction is sufficiently similar. If you have a prior conviction from another state and are facing a possible conviction for DUII in Oregon, it is vital that you have a Portland DUII attorney on your side that knows the law and can articulately appeal to the judge on your behalf. You shouldn’t get significant penalties that may cost you your job when there is no need. Don’t go it alone. All convictions are not alike and if you assume they are, the court and prosecutor will too.

The Implied Consent law not only says you impliedly consent to a search of your person through a breath, blood, hair or urine test for blood alcohol content, but heaps penalties on you should you fail to actually consent. Let me phrase that another way to be perfectly clear. If you ask an officer to first go get a warrant before providing a breath test, that officer can cite you for refusing to cooperate and the court can fine you and take away your driving privileges for a year. In other words, you can consent or you can make us get a warrant, in which case we will punish you in ways that may cost you your job among other things. Sound like coercion? It does to me too and finally the courts have agreed.

Just a few days ago, the Oregon Court of Appeals announced in State v Moore, that the Implied Consent law is coercive and consent given following a reading of the consequences for not consenting, invalidates the consent given. The court’s game changing case is full of well reasoned and articulate holdings, but my favorite is a quote from Machuca I that “a consent to search obtained in that fashion is coerced by the fear of adverse consequences and is ineffective to excuse the requirement to obtain a search warrant.” The State of Oregon has too long forced its citizens into unconstitutional searches. Get a Portland DUI attorney on your side today, one that knows the law and can make certain your rights are not violated. Don’t go it alone.

In this case, Grant received a light sentence on a bank fraud case. While on supervised release, he didn’t do very well and the violations came from drug and alcohol use and mental health issues. For these initial violations, he was given three months in jail. Upon his release, he continued to violate in a similar fashion, the terms of his probation. Soon thereafter, Grant ran into his Probation Officer in a sushi bar and while Grant swore to his PO he had not been drinking, Grant’s waiter reported to the PO that Grant had bought a large glass of sake. The PO had him provide a breath sample, which tested positive for alcohol and Grant failed to appear at his drug test the next day.

He appeared in court and the recommended sentence was 3-9 months, but the judge threw the book at him and gave him a whopping 2 years in prison. The court said, “The court sentenced Grant to more time in prison than he otherwise would have, not only to protect society while Grant was in jail, but also to protect both society and Grant after his release. The judge’s express purpose was to improve Grant’s ability to deal with the drug and alcohol problems that contributed to his recurrent criminal conduct.”

While the Ninth Circuit sympathized with these goals, it ultimately ruled that this is not an appropriate sanction for violations that stem from mere relapse into substance abuse. While they don’t say imprisonment cannot be a sanction for post-conviction violations, they do say that the basis for sending someone to prison for such a violation cannot be substance abuse rehabilitation. In other words, jail is a terrible treatment program. As one can see, however, Grant was given this time and surely did a great deal of it while waiting on his appeal. It is important, whether you are facing charges or on post-conviction supervision, that you have an experience Portland DUII defense attorney that knows the law and can communicate that law clearly to a judge. What you need is not to sit in a cell. If you are facing these issues, don’t go it alone.

Within ten days of your arrest, you must request a DMV hearing in Oregon through Oregon’s Office of Administrative hearings. If you have failed or refused a breath or urine test, the DMV can suspend your Oregon driving privileges regardless of your ever being charged or convicted. Oregon is in an interstate compact with all the other states in the US to alert your home state of your driving status and the reasons therefore, which means you may, and likely will, be suspended in your home state as well. If you do not do request a hearing, but later decide you want to try and fight to keep your license, it will be too late. This is the first thing you should do after calling a Portland DUII attorney.

Secondly, you need to make sure your attorney is familiar with the workings of diversion in Oregon and can coordinate your completion of diversion in your home state. Diversion is a year-long commitment in Oregon and if you were only here temporarily, this may cause huge troubles for your regular life. An experienced DUII attorney will be able to set things up to where you will only need to be here for one trip and only for a short period of time, completing the remainder of your obligations in your home state. To enter the program, you will need to plead guilty to the charge and will need to be present for that. You will then have an evaluation done and will likely need to be here for that as well. Everything else can be done in your home state, but it must be done correctly or the penalties could be severe. I work with clients who live all over the country, so am very aware of how to make the process run smoothly with the least possible interruption to your life.

If you or someone you know was visiting Oregon or here temporarily, don’t let things get out of hand when there is no need for them to do so. An experienced Portland DUII attorney will know the steps you need to take that will meet the court’s needs without requiring you to take up temporary residence in our fantastic state. Don’t go it alone. Call our office today for a free consultation.

The emphasis of the approach is to put the focus on the positive and the language and attitudes of the persons involved must remain focused. The prizes merely reinforce the general emphasis on positivity. The treatment providers attempt to increase positive behavior by supplying vouchers to those undergoing treatment. The vouchers are redeemable for retail goods and services but attaining them is contingent upon both demonstrable behavior change and remaining drug and alcohol free.

How one might get the prizes depends on the program, as they tried several approaches in different programs. In one, for example, each UA that showed up negative for drugs and alcohol could reach into a large bowl full of plastic chips with dollar amounts printed on them. They would be labeled $1 or in $10 increments starting at $20.00. The treatment facility had items for purchase that were at greatly reduced prices and could only be bought with the chips. For example, a $1 chip might not buy a person anything anywhere else, but at the facility it could buy food, bus tokens or any number of things. An amount only slightly more could buy things like clothes and jewelry and if one were to save up to $100 or be lucky enough to draw a $100 chip, he or she could buy luxury items like televisions and computers.

Several studies have shown that the program tends to increase both quality of life in the subjects and the length of the periods in which they remain drug and alcohol free. I found the outcome of these studies very strange at first. I have always believed that the decision to relapse is not a rational one and I would doubt highly that someone would choose not to use, when given the opportunity, because they might get a prize for it. The more I read the study, however, my mind changed. I realized that the prizes are not the point; the point is that happy people are less likely to use. The more at peace we find ourselves, the less likely we are to relapse. This is why I always tell judges, jails make for terrible treatment programs.

I pride myself on being the type of attorney who does not simply run through the motions with clients. I want to serve you and to make sure the whole you is served and defended. If you are looking for a Portland DUI attorney, give us a call. It’s important that you have a Portland DUI defense attorney who will think outside the box and only take steps that are 100% in your best interest.