Doré Law Firm

Category: criminal

  • Disorderly Conduct in Oregon: The Basics

    Even the rich and famous run into trouble with the law, as evidenced by Reese Witherspoon’s recent arrest for Disorderly Conduct.  What is Disorderly Conduct, and what kind of trouble can it cause for a person in Oregon?  Read on…

    Disorderly Conduct is Causing Public Alarm

    In short, the crime of Disorderly Conduct is causing some sort of alarm or inconvenience in public.  There are a variety of ways that a person can be accused of Disorderly Conduct: by fighting, by engaging in threatening or tumultuous behavior, by being too loud, by disturbing a gathering of others without cause, by blocking a roadway or sidewalk, by gathering and then refusing to leave when lawfully ordered by the police, by creating a dangerous or offensive condition, or spreading a false story regarding a fire, crime, or other serious condition.  Many of these things are illegal only because they are done in public, or else done to cause alarm to the public.Disorderly Conduct

    Disorderly Conduct is Often Charged with Other Crimes

    Disorderly Conduct can be the only thing that a person is charged with after being arrested, as was the case with Reese Witherspoon.  Often it is charged along with other crimes.  If someone is in a public fight, they could easily be charged with some form of assault and harassment along with Disorderly Conduct.  If someone lies to the police about being the victim of a crime, they can be charged with Disorderly Conduct along with the charge of Filing a False Police Report.  And if a person physically refuses to leave a public gathering after a cop lawfully tells them to, they could easily end up with Resisting Arrest charges along with Disorderly Conduct.

    Disorderly Conduct Can be Serious

    Most charges of Disorderly Conduct are Oregon are charged in the Second Degree and are B Misdemeanors.  This means that they carry a maximum of 6 months in jail and/or a fine of $2,500, though more likely a person convicted of Disorderly Conduct in the Second Degree would start out with probation.  Depending on the circumstances of the arrest, they may be ordered to undergo anger management or some type of substance abuse treatment.  Disorderly Conduct in the First Degree is usually an A Misdemeanor so is more serious; it carries up to 1 year in jail and/or a fine of $6,250.  If the person doesn’t have a criminal history, however, then again they could expect to be given a chance to succeed on probation prior to any jail time.  Disorderly Conduct is charged in the First Degree if it involves a false report of a danger (such as a fire, explosion, or hazardous substance) at a school.  First Degree Disorderly Conduct can also be brought up to a C Felony if the person has already been convicted of the same crime before.  The felony is very serious, carries up to 5 years prison and/or a fine of $125,000, and could lead to substantial jail or prison time depending on the person’s criminal history.

    You Can Fight Disorderly Conduct Charges

    As with any criminal charges, it is important to speak to an experienced criminal attorney if you find yourself arrested for Disorderly Conduct.  Depending on the facts of your individual case, you could fight the charge in a variety of ways.  Because Disorderly Conduct involves actions in public, there are times when the charges can be fought because of violation of First Amendment Rights.  If you are charged with Disorderly Conduct in Oregon, be sure to discuss your case thoroughly with an experienced criminal defense attorney before making any decisions.

  • Felony Conviction Sentences and Consequences

    A conviction for a felony is a very serious thing.  Whether the conviction comes from a plea or a guilty verdict at trial, there are many consequences in addition to the sentence that a person should be aware of before making any decisions regarding their case.

    The Sentence Depends on the Crime and Criminal History

    The first question a person facing a felony should ask is what the sentence for the crime will be.  In Oregon, felony sentencing is determined according to a grid based on the crime and the person’s criminal history.  Some crimes have “presumed probation,” meaning that the sentence will most likely be probation with minimal jail time up front.  Some crimes have a presumed prison sentence.  It is always important to know a person’s full criminal history before determining a sentence, as prior convictions can make a sentence far worse.Felony Sentence

    Additional Factors in Imposing a Sentence

    There are several other factors that can determine a person’s sentence.  There are certain “departure factors” that can either make the sentence better or worse.  The mitigating factors, or things that can reduce a sentence, include having a victim that was the aggressor, issues with mental capacity, playing a minor role in the crime, cooperating with the state in other investigations, and other things.  The aggravating factors, or things that can make a sentence worse, include deliberate cruelty, permanent injury to the victim, multiple victims, and other things.  In addition to the usual sentencing grid, many crimes carry a “mandatory minimum sentence.”  This means that the judge must impose a specific, often harsh, penalty no matter what the circumstances of the crime are.  The most violent crimes carry minimum sentences under Measure 11.  If a person is convicted of more than one property crime, then they could be subject to a mandatory sentence under Measure 57.  It is important to know if there is a mandatory minimum sentence prior to entering a guilty plea or going to trial.

    Other Consequences Outside of the Sentence

    Getting convicted of a felony involves more than just the sentence. In Oregon, felons lose their right to vote during the time that they are incarcerated; in other states, being a felon could mean losing your right to vote permanently.  In Oregon a person cannot serve on a criminal jury if they have been convicted of a felony within the last 15 years.   Unless you get a conviction expunged, the conviction means that you will carry the label of “felon” for the rest of your life.  Being a felon means that a person will no long be able to receive public benefits (like welfare), will not be able to get public housing, and will likely face issues getting a job.  There are also immigration issues for most convictions, so if a person is not a US citizen they could face deportation.  Before making any decisions, be sure to speak to an attorney to discuss all of the consequences of a conviction, not just the immediate sentence.

  • A DUI in Another State is the Worst of All Worlds

    A DUI in Another State is the Worst of All Worlds

    Getting a DUI in your home state is tough. It’s scary and stressful. Sometimes there’s jail or treatment involved. You almost always get a suspended license when you’re simply charged with a DUI. Getting a DUI in another state is even worse.

    Two Ways to Lose Your License

    There are two ways to lose your license when charged with a DUI. First, the Administrative Track. Second, the Conviction Track.

    Administrative Track

    In Oregon and Washington, everyone who drives a car on a public road gives their “implied consent” to do a breath test. That means, for legal purposes, you’ve already agreed to take the test. Whether or not you actually take the test is up to you but your license can be suspended for refusing to take a breath test or taking one and blowing over the legal limit of .08%.

    Oregon: Morgan already did a great job covering this in her article Should I Take the Breath Test if Arrested for Oregon DUII?: “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. Second, the results of the breath test can then be used against you at any trial for the DUII charge. … 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.”

    Washington has a two-tiered system:

    For BAC over .08% (.02% for minors): 90 days If it’s your first in 7 years. 2 year revocation if second or more in 7 years. For minors, one year or until 21, whichever is longer.

    For a refusal: 1 year revocation if first refusal within 7 years and no prior suspensions for a high breath test. 2 year revocation if second or more refusal or first refusal with a prior high breath test suspension. (For minors, 2 years or until 21, whichever is longer.)

    Fighting the Suspension: In both states, you can ask for an administrative hearing. Time is important! You must request your hearing within 10 days of arrest in Oregon and within 20 days of arrest in Washington. If you don’t request a hearing (or if you don’t win the hearing) the suspension will go into effect.

    Bad Results

    It is very difficult for an out-of-state driver to continue driving during a suspension on the Administrative Track.

    Oregon: An Oregon driver, charged in Oregon, can apply for a hardship license. A hardship license – after a 30-day waiting period – will let you drive to, from or for work or school. A driver getting a DUI administrative suspension in another state will not qualify for a hardship permit because they do not have an Oregon license. The Oregon suspension will run its normal course and your home state will suspend your license and, as Washington does, refuse to reinstate until Oregon clears the suspension.

    Washington: A Washington driver, charged in Washington, can apply for the ignition interlock license, or IIL. An IIL – with no waiting period – will let you drive any vehicle with an ignition interlock device installed (and some without if for employment purposes, with your employer’s consent). A driver getting a DUI administrative suspension in another state will not qualify for an IIL because they do not have a Washington license. The Washington suspension will run its normal course and your home state will suspend your license and, as Washington does, refuse to reinstate until Washington clears the suspension.

    The result in both states is at least 3 months without a license.

    What to do?

    If you’re an out-of-state driver, you have to fight the suspension. Otherwise, you’re in for a long time without any driving. You need an attorney that knows the law, how it interacts between the states and that will help you through the process. Give us a call so we can get to work on your case.

    Next time, the Conviction Track.

     

     

  • DUII Investigations in Oregon – What to Expect

    Driving Under the Influence of Intoxicants, or DUII, is a serious charge.  Unlike many other crimes, DUII arrests are common for all people in society.  Most crimes require some kind of intent to break the law, but DUII is a “strict liability crime” where it doesn’t matter what the person was thinking: if the person was drunk while driving, they can be arrested and convicted of DUII.

    DUII Starts with Driving

    Most DUII arrests start with a person getting pulled over by the police while driving.  Some folks have already made it home when the police contact them, or are in a car that isn’t moving, but most people are actually driving when the police first start talking to them.  Most DUII drivers are pulled over for minor traffic infractions or signs of bad driving, like not staying within the lane or not using a turn signal.  Some DUII drivers are caught after an accident, whether caused by the DUII driver or not.

    Signs of DUII

    Once the police start talking to the suspected DUII driver, it is often the smell of alcohol that first alerts the officer that the person may be DUII.  The police will also look for classic signs of intoxication, such as bloodshot/watery eyes, slurred speech, difficulty with simple tasks (such as getting out a driver’s license), and inability to maintain balance.  If the officer suspects DUII, he or she will ask the driver to perform Field Sobriety Tests (FST’s).

    Field Sobriety Tests to Determine DUII

    The most common FST’s are the walk-and-turn, the HGN (Horizontal Gaze Nystagmus), and the one-leg-stand.  The HGN involves following an object (usually a finger or a pen) from side to side so that the officer can watch the person’s eyes to see if they move in a certain way.  The walk-and-turn and one-leg-stand are both designed to test the person’s balance and coordination as well as the person’s ability to follow directions while completing tasks.  There is no “pass” or “fail” for these tests; rather, there is a series of “clues” that the officer looks for to decide whether there is probable cause to arrest the person for DUII. FST Picture

    Breathalyzer to Confirm DUII

    If arrested for DUII, the next step is usually to take the person to a police station and to ask them to perform a Breathalyzer test to determine how much alcohol is in the person’s system.  Please see our other post here for information on refusing to take the Breathalyzer test when requested.  In Oregon, a person is considered DUII if the Breathalyzer comes back at 0.08% BAC or higher, but a person can be arrested if they blow below at 0.08% BAC if the officer believes they were still impaired.  If the test is under a 0.08%, the officer may request a Drug Recognition Expert (DRE) to perform additional testing to determine whether the person is under the influence of something other than alcohol.  If the DRE believes the person is high on something other than alcohol, then the person will be asked to provide a urine sample to determine whether the other substance is present in that person’s system.

    DUII Investigations Must be Done Right

    While DUII arrests are common, the procedure for investigating a DUII is very scientific and requires the officer to follow the steps exactly.  If any of the steps is done incorrectly, from not having a good reason to pull someone over to not doing the Breathalyzer right, then the entire case could be dismissed at trial.  If you or someone you know has been arrested for DUII, it’s best to speak to an experienced DUII attorney about the specific facts of the arrest to determine how best to handle the charges.

  • 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 Drunk Driving Photothe 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.

  • 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.

    A picture of a pistol and handcuffs
    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.

  • 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.

  • 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.

  • The Power of Prado

    State v. Prado is one of the most powerful tools available for beating your driving charges.

    Let’s say you’re happily driving down the road. You hear your tires hit the rumble strip and, the next thing you know, red and blue lights are flashing in your rear view mirror. Are you in serious trouble? Maybe not…

    Police often stop drivers for minor infractions and seek to expand their investigation into more serious offenses. One of most common minor infractions police use to stop drivers is crossing over lane lines or fog lines. The law, RCW 46.61.140, requires drivers keep their cars “as nearly as practicable entirely within a single lane and shall not be moved from such lane until the driver has first ascertained that such move can be made with safety.” But that’s not the end of the story.

    Washington, and several other states, have the exact same law. The courts agree that simply crossing over the lane markers once or twice – so long as no one is put in danger – is not enough for an officer to pull you over.

    State v. Prado is the lead case in Washington. The Court of Appeals ruled that Mr. Prado’s driving, where he crossed over a fog line once, was not bad enough to justify an officer pulling him over. It went even further, saying that sometimes accidentally crossing out of your lane more than once may not be a good enough reason to pull you over.

    You can use Prado to win your traffic case. The traffic stop may be unlawful if the police officer stopped you for crossing over a line on the roadway. An unlawful stop can be the key to suppressing the evidence against you. Without evidence, the prosecution will be hard pressed to prove their case beyond a reasonable doubt.

    Let me help you, contact me today to discuss your case.