Author: Blake Doré

Should I Take the Breath Test if Arrested for DUII in Oregon?

A police officer must have probable cause before arresting someone for Driving Under the Influence of Intoxicants, or DUII, in Oregon. Probable cause means that the officer believes that it is more likely than not that the person is driving while intoxicated. Officers usually develop probable cause by observing the person driving, interacting with the person, and giving the person Field Sobriety Tests. Once arrested, the police officer usually will ask the person to take a Breathalyzer, or breath test, to confirm the amount of alcohol in the person’s system.

DUII Implied Consent Laws Require a Breath Test

Under Oregon’s Implied Consent Laws, any person that drives on an Oregon road has already agreed that they will take a breath test (or urine test, if necessary) should they be arrested for DUII. Before giving the person the breath test, the police officer will first read a prepared statement to the person explaining the Implied Consent Laws. After reading this information, the officer will ask the person if they are willing to take the test. Despite the Implied Consent Laws, the officer cannot force the person to take the test and must not give the person the test if the person refuses.

Consequences of Refusing to Take a Breath Test after Arrest for DUII

Refusing to take the breath test once arrested for DUII can get the person in trouble. If you refuse the test, you will automatically get a one-year drivers license suspension that will start 30 days after the arrest. If you have been convicted of a DUII in the last five years and refuse to take the test, the suspension will be for three years. It may be possible to get a hardship permit that allows you to drive to and from work only, but this isn’t available for the first 90 days of the suspension. You can fight the license suspension for breath test refusal at a hearing with the DMV. At this hearing the officer will have to show that there really was probable cause to arrest you for DUII, and will have to show that he or she followed the other necessary steps in order for the arrest to be valid.

Consequences of Taking the Breath Test after Arrest for DUII

There are potentially some bad consequences even if you do take the breath test once arrested for DUII, however. First, if you fail the breath test, meaning you blow at 0.08% BAC or higher, then your license will be suspended for 90 days (you will still have an opportunity for a hearing with DMV). Second, the results of the breath test can then be used against you at any trial for the DUII charge. While a prosecutor can convict a person of DUII without breath test results, based only on the actions of the person that show they were drunk, it is usually much harder to be convicted if there is no breath test result. The fact that a person refused the breath test can be used at trial, however, and could be used to argue that the person knew they were drunk when they were driving.

April 11, 2013
Where to Park at Clackamas County Courthouse?

Trying to Park at Clackamas County Courthouse Can Be Tough. Watch out for Parking Tickets!

It can be hard to Park at Clackamas County Courthouse in located at 807 Main St, Oregon City, Oregon is always hard to find. It’s a busy place – filled with people there for criminal cases, divorces and jury duty. Parking was particularly bad during the Arch Bridge construction. Thankfully that’s ended but it is still hard to find a spot and easy to get parking tickets.

Oregon City has added a lot of parking on Main St using the new parking meter that accepts credit cards but those are still at a premium. There are few spots on the side streets that have coin meters but those are usually short term parking.

What should you do if you’re going to court?

I have three favorite places to park at Clackamas County Courthouse. I may be ruining it for myself but you should check them out, too. Click the pictures for a bigger view.

Short Term

My favorite short term spot that is almost always open is the metered spots right in front of McMenamins Oregon City at McLoughlin and 9th.

Coin Long Term

My favorite long term parking spots at Clackamas County Courthouse are across McLoughlin/99 (at 8th) are almost always open. The meters are coin-op only – so bring some quarters – but you won’t have to run out and feed the meter all the time.

Free Long Term Parking

If you want free parking, head down Main st to 14th by the Subaru dealership. Spots there are free for four hours. It’s a bit of walk to the courthouse but it does the job when you don’t have any way to pay for parking.

Free parking is almost nonexistent in downtown Oregon City around the Clackamas County Courthouse but you may be able to find some if you go even further down main to 15th & Main – there are a few spots on the north side of Main with no time limit.

Hopefully you find this information helpful. You can also check out Oregon City’s Parking Zone Map for more info.

Don’t steal my spot and remember to keep track of how long you have left on your meter. And if you get a ticket… give us a call!

April 10, 2013
Diversion Can Be a Good Option for Oregon DUII Charges

Driving Under the Influence of Intoxicants, or DUII, is taken seriously in Oregon. Unlike many traffic-related crimes, it carries strict penalties and can have lifelong affects. For people pulled over for DUII for the first time, however, there is an option called Diversion. Diversion can help avoid many of the harsh penalties that come with a DUII conviction. Diversion is a one-year program that requires participation in alcohol treatment, fees of a few hundred dollars, attendance at a Victims Impact Panel, and installation of a Ignition Interlock Device (IID) in any car that will be driven during the Diversion period.

Who Is Eligible for Diversion?

Diversion is an opportunity for someone arrested for DUII for the first time to complete treatment in order to avoid a conviction. To qualify for Diversion, the person must not have had any convictions for DUII (in Oregon or elsewhere) for the last 15 years. The person also can’t have done court-ordered alcohol or drug treatment for the last 15 years. The person also cannot hold a CDL (commercial drivers license) or have been driving a commercial vehicle at the time of the drunk driving. Finally, to qualify for Diversion there can’t have been any assaults or injuries as a result of the DUII arrest. There are some other factors that may keep a person out of Diversion, though a good attorney can fight against these. It’s important to speak to an experienced DUII attorney to determine whether you will qualify for Diversion.

What Are the Benefits of Diversion?

There are many benefits to the Diversion program. First, there is no license suspension in the Diversion program (but be sure to speak to an attorney about whether DMV is suspending your license for a different reason!). Second, a DUII conviction generally has a minimum fine of $1,000, but that fine isn’t imposed if the person enters Diversion. Finally, if the person successfully completes the Diversion program, the case will be dismissed and the person will not be convicted of DUII. Not having a conviction can be especially huge if the person is ever arrested for DUII again, as the penalties for DUII get worse the more times a person is convicted.

Diversion Isn’t for Everyone

While Diversion is a good option for many, it isn’t for everyone. If you have a strong case for the DUII, then it may be better to fight the charge at trial and possibly get all of the charges dismissed outright. If you win at trial, then you could still have the opportunity to participate in Diversion in the future should you ever get arrested again. It’s important to speak to an experienced DUII attorney before deciding to enter Diversion to decide whether it’s the right choice for you based on the facts of your specific case.

April 9, 2013
Weigh Station Trouble: Splitting the Tandem.

Up on the Truck Scale

As every commercial driver knows, weight limits apply to commercial vehicles. Generally, those weight limits are 10,000 lbs per wheel, 20,000 lbs per axle and 34,000 lbs per tandem axle. Anything over these limits and you’re in for a hefty ticket down at the weigh station.

Oregon Rules Say How the Weigh Station Should Do its Job

Oregon Administrative Rule sets the method for how ODOT should be checking your weight against the weight limit at the weigh station. Single axles can be weighed on a portable scale or in-ground scale so long as only that axle is being weighed. Tandem axles “shall” be weighed by adding together the weight on all the axles in the set (if weighed individually) or by putting all the wheels on the truck scale. The rules don’t set a certain limit per axle in a tandem axle.

ODOT Changes the Rules at the Weigh Station

Even though the rules are clear, ODOT is enforcing a different set of rules at the weigh station. ODOT officers are weighing the axles of tandems separately and, instead of adding them up to get he total weight like the rule says, issuing over weight limit based on a single axle in the set.

What to Do?

Avoiding this problem can be hard. Most shippers don’t have the capability to measure tandem does independently. Presumably some won’t because its not required by Oregon law or rule. Unfortunately, it’s the commercial driver that pays the price – literally – for a load that isn’t balanced on the tandem axle.

The best thing to do if you get an overweight ticket at the weigh station is to call the experienced traffic attorneys at Dore Long.

April 3, 2013
Does Misdemeanor Treatment Get Felons Back Their Gun Rights?

Felonies Can be Turned Into Misdemeanors

One great trick of Oregon law is that Class C felonies can receive “misdemeanor treatment” — that means they can be turned into misdemeanors. Your felony charge can be turned into a misdemeanor by the prosecuting attorney at the beginning of the case or by an agreement later.

Prosecutors often offer misdemeanor treatment for a felony after you successfully complete probation, pay your fines and do any required treatment. This can be a great benefit to you because you stop being a felon at the moment of misdemeanor treatment.

Possessing a firearm after a felony conviction can lead to trouble — sometimes even if your felony was treated as misdemeanor.

Misdemeanor Treatment, Felons and Gun Rights

Felons of any stripe can’t possess guns or other dangerous weapons in Oregon. See ORS 166.270. But people convicted of most misdemeanors can.

However, many people convicted of a felony that later got misdemeanor treatment cannot. How can that be? Because, if you were convicted of a felony, this particular Oregon law considers you a felon unless at the time you were originally sentenced, the judge made it a misdemeanor.

Misdemeanor treatment at the end of probation comes too late to save your gun rights.

What to Do?

Your felony charge has to be handled the right way if keeping your gun rights is important to you. Get a good attorney to handle your case the first time. Negotiate with the DA for misdemeanor treatment up front (even if it means a slightly worse sentence in the bargain).

If this has happened to you, don’t possess a gun until you’re sure what kind of misdemeanor treatment you received. Then, apply to have your gun rights restored if you’re eligible.

Give us a call. We’d be happy to go over your options and help you move forward.

April 1, 2013
Photo Radar at the Sellwood Bridge

Saw the Flash? Fight the Ticket!

The other day I drove across the Sellwood Bridge and noticed the Portland photo radar van was lurking in the construction zone just south of the bridge on OR 43/ SW Macadam. We drove by it twice and saw the flash go off multiple times.

Portland photo radar vans are usually set to take a picture when a car is 11 mph over the posted speed limit. That means these poor drivers were looking at tickets for at least 11 mph over… in a construction zone. That’s a hefty ticket. Do they have to pay it? Maybe not.

Update – Recently received documents from the City show that in one four-hour shift the PPB van took more than 300 pictures. At $320 per ticket (11-20 over at work zone rates), that’s over $96,000 in tickets in four hours. Wow.

A Bit About Speed Limits

The officer was enforcing the speed limit that’s posted. However, that’s not the end of the story. There are three kinds of speed limits in Oregon: basic rule; statutory; and speed zone order limits.

The basic rule speed limit, contained in ORS 811.100, is a sort of “safe and sane” rule. Your driving must be reasonable and prudent under all the circumstances. This rule generally applies on state highways outside of cities. It can get you in trouble, however, even if you drive the speed limit and conditions are terrible.

The statutory speed limit is a limit set by law in ORS 811.111. It sets maximum speeds on interstate highways, max speed for certain kinds of vehicles and the maximum for certain types of roads inside of cities. For example, in a residence zone the statutory speed limit is 20 mph in all business districts within cities.

The final type of speed limit is the speed zone order. A speed zone order, under ORS 810.180, sets a speed limit that is lower or higher than the basic rule or statutory speed limit. The speed zone ordered is usually requested by the city or county and can only be put in place after an engineering study of the road. The orders are very clear and precise about the speed zones begin and end. Going faster than a speed zone order speed limit will get you a speeding ticket.

The Signs Are in the Wrong Spot

That brings us to the Portland photo radar van parked south of the Sellwood bridge. That section of road has a speed zone order speed limit that’s usually 45 mph. However, until the Sellwood bridge project is completed – estimated in 2016 – this section of road has a temporary speed zone order making a section a 25 mph zone.

Here’s the rub: the speed zone order says the 25 mph zone ends at OR 43 milepost 2.88. The speed limit then reverts to 45. The Portland photo radar van has been parked around milepost 2.97 – inside what should be the 45 mph zone – enforcing a 25 mph speed limit. The officers are enforcing what the signs says is the speed limit but the signs don’t match up to the actual speed zone.

What Does That Mean for You?

You can fight the ticket. However, it’s not an easy win. All the above has to be proven to a judge with the right kind of evidence. That can be difficult to do. Contact the traffic ticket lawyers at Dore Long for a 15-minute phone consult. Let’s get to work to keep that photo radar ticket off your driving record.

March 27, 2013
Post Conviction Relief Win – New Sentence to Avoid Deportation

In Oregon, Post Conviction Relief is the only way to overturn a conviction or sentence that doesn’t involve legal error. It covers problems like denial of constitutional rights and when an attorney makes a mistake.

N was convicted of theft in 2007. At the time, he was a lawful permanent resident of the United States. This conviction didn’t pose too big of an immigration issue until N faced a probation violation in 2010.

N’s attorney knew that N was lawful permanent resident and he’d arranged a great deal for N that would have kept his immigration status safe. Unfortunately, the judge didn’t go along with the deal and, instead, sentenced N to 365 days in jail. That magic number – 365 days – immediately converted N’s theft conviction into an aggravated felony for immigration purposes. N’s attorney didn’t inform the judge of this harsh consequence or ask to reduce the sentence. After N served his sentence he faced unavoidable, mandatory banishment from his family and home of 13 years.

Yesterday, following a post conviction relief trial, the Marion County Circuit Court held that N’ had suffered a substantial denial of his constitutional right to effective counsel. N’s sentence was vacated and the case will be sent back for a new sentence – one that will hopefully recognize he has paid his obligation to his adopted home and let him stay with his family.

March 22, 2013
Caution: Oregon State Police Increasing Patrol to Reduce “Roadway Departure Crashes”

Oregon State Police (OSP) recently received grant funding from the Oregon Department of Transportation (ODOT) to provide overtime enforcement on selected state highway locations to decrease the occurrence of often tragic “roadway departure crashes.” This results in over 1,600 hours of additional overtime enforcement through the end of September 2013.

OSP enforcement will target contributing factor traffic violations that data shows are associated with roadway departure crashes such as speed, failure to maintain a traffic lane, failure to drive on right side of highway, distracted driving, and DUII.

Specific locations for increased OSP enforcement include:
* Highway 26 (east of Sandy) milepost 28 – 37 and milepost 45 – 55 (OSP Portland / Government Camp)
* Highway 101 (Bay City south of Tillamook) milepost 61 – 67 and 76 – 81 (OSP Tillamook)
* Highway 6 (east of Tillamook) milepost 10 – 16 (OSP Tillamook)
* Highway 6 (west of Banks) milepost 30 – 36 (OSP North Plains)
* Highway 26 (east of Seaside) milepost 10 – 15 and milepost 20 – 26 (OSP Astoria)
* Highway 101 (between Depoe Bay and Newport) milepost 127 – 133 (OSP Newport)
* Highway 101 (south of Newport) milepost 148 – 154 (OSP Newport)
* Highway 18 (east of Highway 101) milepost 0 – 10 (OSP Newport)
* Highway 20 (east of Newport) milepost 0 – 5 (OSP Newport)
* Highway 34 (east of Waldport) milepost 0 – 5 (OSP Newport)
* Highway 42 (west of Winston) milepost 75 – 77 (OSP Roseburg)
* Highway 38 (east of Coos Bay) milepost 0 – 10 (OSP Coos Bay)
* Highway 199 (north of Cave Junction) milepost 14 – 24 (OSP Grants Pass)
* Interstate 5 (north of Grants Pass) milepost 70 – 80 (OSP Central Point / Grants Pass)
* Highway 97 (north of Bend) milepost 128 – 133 (OSP Bend)
* Highway 97 (south of Bend) milepost 143 – 158 (OSP Bend / La Pine)
* Highway 20 (west of Sisters) milepost 92 – 97 (OSP Bend)
* Highway 26 (west of Madras) milepost 107 – 112 (OSP Bend / Madras)

To learn more about roadway departure crashes and locations in Oregon, visit http://www.oregon.gov/ODOT/HWY/TRAFFIC-ROADWAY/pages/roadway_departure.aspx

February 14, 2013
Fake signs – real traffic tickets?

Not all traffic signs are created equal. Could you get a traffic ticket for parking in a Heat Fans Only Zone? What if the sign looked real but was fake?

Is that LeBron driving the tow truck?

We’ve all seen the novelty signs that warn that you will be towed (or punted or sacked) if you’re not a Packers or Heat fan.

Do you ever think that you’ll get towed or punted if you park there? Of course not. (Oddly, I couldn’t find any Blazer fan-only parking signs!)

But what about this sign in Portland?

It’s non-denominational. It’s attached below a real traffic sign on a pole sunk into the concrete.

On closer examination, it’s made of flimsy tin rather than the heavy-duty stuff of the sign above it. Also, check the back: It’s held on with zip ties!

How does it compare with other Portland signs? The pedestrian signs have official stickers on the back.

How about other parking signs?

Portland signs use a border (some black, some red) with “COP” and the no parking symbol. Also, check the back: it’s held on with bolts and metal bands. There are also official stickers.

Not all parking signs look the same, of course. Compare this sign from the other side of the river:

It’s different, of course, but note the similarities: nice fat red border and held on with bolts.

There are rules about how traffic signs have to look.

Every traffic sign in Oregon, including parking signs, must comply with the Manual on Uniform Traffic Control Devices (the MUTCD). See ORS 810.200. The MUTCD has all the rules about sign placement, size sign and content (including the font and width of that little border). In section 2B-24, it requires all traffic signs to have that bright border and it has to be a certain size.

How does that help?

ORS 810.250 makes it a defense to a traffic charge if the official traffic control device isn’t in the proper place and legible. However, the same law says that the courts should presume the sign is valid unless you can show otherwise. (As a side note, this same rule applies to other traffic signs like speed limit signs and turn signs.)

So, can you park there legally?

Maybe. The sign doesn’t seem to meet the legal requirements. It’s different enough that it’s legitimacy is in doubt. You may be able to legally park there.

Will it stop you from getting a ticket?

Not necessarily.Even following an unquestionably legitimate traffic sign doesn’t guarantee going ticket free. Remember that sign from across the river? It prohibits parking from 4-6 Monday through Friday. I got a ticket, later dismissed, for parking there on a Sunday at 5pm.

A passing police officer could easily choose to give you a ticket for what appears, on its face, to be a legitimate sign.

What should you do?

Give us a call if you get a traffic ticket (any traffic ticket – not just parking tickets) based on a questionable traffic sign.

You can try to raise this issue yourself. The problem, of course, is that this is a legal defense that you present in court and it’s not an easy defense to use. You have to know how to raise it and you need the right kind of evidence.

The other day I was in court and a woman was representing herself. I heard her story about being charged with violating a temporary speed limit after it had expired and I knew she was right – she wasn’t guilty. However, she hadn’t raised the defense in the right way and her evidence – that absolutely would prove her innocence – wasn’t admissible. The judge found her guilty. Don’t let that happen to you!

What shouldn’t you do?

Don’t put up a fake sign. It might be nice to stop everyone from parking in front of your house by putting up a sign – but don’t do it. It’s a traffic violation – and the judge can stick you with a fine of up to $1000.00.

December 6, 2012
Words we like to hear: Case Dismissed, Not Guilty.
We’ve recently had some great outcomes for our clients:
- Salem v. K: Commercial driver accused of running a photo red light. We took it to trial and K was found not guilty.
- State v. M: M was charged with careless driving. OSP failed to provide discovery so we moved to dismiss. The officer failed to appear for the hearing and the case was dismissed. Sometimes it pays off to have a good lawyer – and a lucky lawyer.
- State v. K: K was accused of speeding in a school zone; K swore she was driving after an End School Zone sign but before a speed limit sign. We took photos of the scene, and after reviewing photos of the scene with the charging deputy, he realized that he had been using the wrong sign as the end of the school zone and dismissed the case. (I feel bad for all those other folks he ticketed that didn’t challenge it!)
- State v. R: R is a commercial driver and his ticket for 72 in a 55 (17 over the limit) would have meant big trouble with his employer. We were ready for trial but negotiated a great resolution of reducing the ticket to 56 in a 55 with the minimum fine.
- Washington v. I: I was charged with DUI but had a breath test under the legal limit. We counseled him on the effects of a DUI on his professional license, tracked down witnesses that could have testified that would have refuted the officer’s claim that he was “obviously intoxicated” and, after weighing the risks involved, entered a plea to the reduced charge of negligent driving in the first degree with a reduced fine.
- State v. D: D was accused of Assault 4 Domestic Violence. After counseling him to plead not guilty, we interviewed the complaining witness (CW) in the case. Throughout the interview, we drew out the fact that the CW was being violent, not D, and that D had a legitimate fear for his safety and the safety of his property. After that great interview – and a little pressure on the prosecutor – the case was dismissed and the no contact order dropped.
These were some great outcomes this last week and we’re very pleased with the results. Give us a call today to see how we can help in your case.
December 5, 2012