Doré Law Firm

Tag: criminal defense

  • Washington County Felony DUI Reduced to Misdemeanor

    Great result today out of Washington County, Oregon where my client’s felony DUI charge was reduced to a misdemeanor DUI.

    Felony DUI in Oregon is based on the number of prior convictions. ORS 813.011 leads to a felony DUI if you have two prior convictions in the last ten years. It carries a minimum of 90 days in jail without the possibility of work release or home confinement.

    Motion to Challenge Prior Convictions Successful

    Defendant had a prior case in California that was remarkably similar to an Oregon diversion. We made a motion to challenge defendant’s prior convictions based on whether the Oregon legislature intended a prior “conviction” to mean a guilty plea or the entry of a judgment of conviction.

    The court ruled that the State had failed to prove the California case ended in a conviction. This change the case from a felony DUI to a Misdemeanor DUI. Defendant ended the case with a sentence that was 1/3 of the DA’s final pre-trial offer, less than the mandatory minimums for a felony DUI and he’s eligible for work release and home confinement. Overall, a great result!

  • Vancouver DUI Reduced to Negligent Driving

    Good Result on Vancouver DUI

    My client was charged with a DUI over .15% blood alcohol content. This case looked tough from the beginning, with allegations of a high BAC, allegations of an “overwhelming” odor of alcohol and a report detailing an extremely poor job on field sobriety tests. The original offer was to plead as charged and go to jail for 2 days.

    Initially, the State only turned over a written report. However, after reviewing it, it was obvious that there was also a video recording of the stop. After forcing the state to turn over the tape I discovered that 1) the first officer on the scene never smelled the odor of alcohol from my client; 2) the officers commented that she did an “amazing job” on field sobriety tests (despite writing up report to look like a terrible job); and 3) when client said she didn’t want to do field sobriety tests, officers made a veiled threat of arrest if she didn’t do them.

    The end result was a reduction from a high blow DUI to Negligent Driving 1. That means 3 years less probation, no further license suspension and avoiding a year of ignition interlock. That’s a great result for almost any Vancouver DUI!

  • What to Expect at Your First Court Date

    Getting Charged with a Crime is Scary.

    The uncertainty of your situation You were arrested or given a ticket with a court date. You don’t know what’s going to happen or how everything will turn out.

    Your First Court Date Doesn’t Have to Be.

    Your first court date will be when the court will formally tell you the charges, accept your plea and give you future court dates. If you’re out of custody now, and don’t seem like a flight risk, you’ll probably be left out of custody. If you were booked and released (or bailed out) the judge will remind you to follow your conditions of release. The judge could also tell you new conditions you’ll have to obey.

    To Do at Your First Court Date:

    Get a lawyer. A lawyer is crucial when your future is at stake. If you can’t hire a lawyer, one can be appointed to you at your first hearing.

    Plead not guilty. That will buy you time to talk to your attorney, work out a favorable deal (or potentially diversion that would result in dismissal) or complete a civil compromise (where you pay for the other party’s loss and then request a dismissal by the court).

    Dress as if this were a job interview. You want the judge to think of you as reliable. You also want to show the judge you respect the court because, if you respect the court, you’re more likely to follow its orders.

    What Not to Do at Your First Court Date:

    Try to tell your story to the judge or bargain with the judge. This isn’t the time for that and the judge doesn’t have the power to dismiss the case no matter how great your story is.

    Talk to the prosecutor without your attorney. (Or, if you do, don’t admit to anything.)

    Be late.

    Do You Have a First Court Date Coming Up?

    Having an attorney on your case can make your first court date a lot less scary, go more quickly and – depending on the where you have to go to court – you may not need to go to court at all. Contact me for a confidential consultation.

  • Impaired Driving Isn’t Just About Alcohol – Controlled Substances DUII’s in Oregon

    When most people think of Driving Under the Influence of Intoxicants, they think of drunk driving – that is, they think of someone under the influence of alcohol.  But in Oregon, and most other jurisdictions, alcohol doesn’t have to be involved for a DUII to be charged.  Impaired driving is illegal whether it’s caused by alcohol or some other controlled substance.  I’ve already discussed breathalyzers and how basic alcohol DUII investigations work in Oregon.  Now let’s discuss what happens if the officer believes a person is driving impaired but the breathalyzer results show no alcohol.

    DUII Can Involve Any Controlled Substance

    A person who drives on a public road while under the influence of a controlled substance or inhalant can be charged with DUII in Oregon.  A controlled substance is any drug classified under the federal Controlled Substances Act.  This includes commonly known illegal drugs, such as methamphetamine, heroin, and cocaine.  It also includes many prescription drugs, such as Ambien, oxycodone, and Xanax.  It even involves marijuana, even if the person driving holds a valid medical marijuana card.  Generally over the counter drugs do not fall in this category.  The fact that a drug is taken pursuant to a prescription does not mean that a person can drive while under the influence of that drug; if the person is impaired to a noticeable and perceptible degree, that person can still be convicted of DUII.

    Controlled Substance DUII Investigation Involves a DRE

    Most controlled substance DUII investigations start with the same basic format as an alcohol DUII.  But if the breathalyzer results says there is no alcohol in the person’s system, or there is far less alcohol than expected based on the person’s behavior, then the officer will ask for a Drug Recognition Expert (DRE) to perform a more thorough investigation.  The DRE investigation is a twelve-step process that involves more intensive testing than the usual Field Sobriety Tests.  If the DRE believes that the person is under the influence of a controlled substance then the DRE makes an educated guess as to what the substance is.  The final step is then to have the person give a urine sample so that the police can confirm whether the substance is actually present in the person’s system.  If it is, then the person is likely to face a DUII charge.

    Controlled Substance DUII’s Can be Fought

    There are many possible ways to attack allegations of impaired driving based on controlled substances.  For starters, the state must charge the person correctly; if the state fails to specify that the DUII is based on controlled substances then the case can fall apart.  The DRE process is also considered scientific, so in order for the final results to come in against a person at trial each step must be performed in exactly the correct manner.  If the DRE guesses the substance wrong then the whole case can be thrown out, even if the person was under the influence of something different.  As with all DUII’s, alcohol or otherwise, there is always room to challenge whether the officer originally had enough reason to believe the person was under the influence of intoxicants.  Controlled Substance DUII PicAn amusing recent example is this article talking about the phenomenon of officers claiming that a “green tongue” is adequate reason to believe that a person has recently smoked marijuana.  Finally, even if the state can prove that a person has a controlled substance in their system, the district attorney still must prove that the substance was actually impairing the person at the time of driving.  Unlike alcohol, which leaves a person’s system quickly, many drugs remain in the body for long periods of time.  Simply proving that a person has some marijuana in their system does nothing to prove when the marijuana was consumed and whether the person was being influenced by it at the time they were driving.  There are many ways to fight a controlled substance DUII allegation.  If you find yourself charged, speak to an experienced DUII attorney before taking any action on your case.

  • Hit and Run – What If It Doesn’t Involve Another Car?

    Most people know that it’s wrong not to stop after an accident.  What many people don’t know, however, is that in Oregon it is actually a Class A Misdemeanor is they don’t take certain steps to notify property owners of damage to property that isn’t a car.  In Oregon a hit and run, legally known as Failure to Perform the Duties of a Driver (ORS 811.700), can be charged for very minor damage.  Any sensible person knows that they must not drive away if someone is injured or if they hit another car, but what if it’s just running into something?

    Hit and Run against Property on Side of the Road

    An accident doesn’t have to involve another car for there to be legal duties.  If a driver damages any “fixture or property” on or next to the road then they have a duty to stop.  This would include road signs, buildings, dumpsters, or even a person’s front yard.  If a driver damages someone else’s property, the person must take reasonable steps to notify the owner of the property of the damage and to provide their name, address, and the registration number of the car.  They must also show their driver’s license if requested.

    Hit and Run Can Include Vegetation

    It makes sense that a person must notify the property owner if they run over someone’s mailbox.  But what about if someone runs into someone else’s front yard or drives their car into a tree?  A recent article in the Oregonian highlights a woman that was cited after driving her truck into a tree and then leaving.  This woman was given citations for criminal mischief (for damaging someone else’s property) and for hit and run for not staying around to report the damage to the tree’s owner.   Whether the vegetation is publicly or privately owned, since it has a value it must be reported if damaged.Truck in Tree

    Is it Hit and Run if the Car is Left Behind?

    Is it really a hit and run if the car is left behind at the scene of the damage?  That’s an interesting question, and one that should be discussed with an attorney if you find yourself in a situation like this.  A couple of years ago I had a case where the client was charged for driving his car through a fence and into someone’s front yard after failing to make a turn in the road.  The client fled and wasn’t found until the next day, but left his car behind as it was stuck in the deep groves left in the garden.  We ended up getting the jury to return a not guilty verdict based on the argument that he had notified the owner of the damage by leaving the car there in plain sight, that he had provided his name and address as it was on the insurance card in the glove compartment, and that the vehicle registration number was also provided as it was on the car itself.  Depending on the facts of the case, you can win a hit and run accusation, so speak to an experienced criminal defense attorney before taking any steps if you find yourself charged with hit and run.

     

  • A DUI Conviction Will Suspend Your License

    Getting charged with a DUI is embarrassing. You might have to do a brief stint in jail. One of the longest lasting consequences is that a DUI conviction in another state will suspend your license.

    As discussed in my previous post, A DUI in Another State is the Worst of All Worlds, there are two ways to lose your license from a DUI: the administrative track (through a DOL or DMV suspension) or following a conviction.

    The Conviction Track

    In Oregon and Washington you will lose your license if you’re convicted of a DUI. Both states have different lengths of suspensions that depend on the severity of the charge and your criminal history.

    Oregon License Suspension After a DUII

    After a DUII conviction in Oregon, the DMV will suspend your license. The length of the suspension will depend on your criminal history.

    1st DUII One Year Suspension 0-day wait for hardship permit
    2nd DUII Three Year Suspension 90-day wait for hardship permit
    3rd/Felony DUII Permanent Revocation* No hardship permit

    *Can petition the court to return driving privileges after 10 years.

    Washington License Suspension After a DUI

    After a DUII conviction in Oregon, the DOL will suspend your license. The length of the suspension will depend on your criminal history and the severity of the offense.

    Blood Alcohol Content .08% – .15%
    No Prior 90-day Suspension Ignition Interlock License*
    1 Prior 2-year Revocation Ignition Interlock License*
    2 or 3 Priors 3-year Revocation Ignition Interlock License*
    Blood Alcohol Content > .15% or Refused Test
    No Prior 1-year revocation, 2 if refused Ignition Interlock License*
    1 Prior 900-day revocation, 3-year if refused Ignition Interlock License*
    2 or 3 Priors 4-year Revocation Ignition Interlock License*

    The ignition interlock license allows anyone with a Washington license to continue to drive so long as they have:

    • -Proof of a functioning Ignition Interlock
    • SR-22 Insurance
    • -$100 fee to DOL
    • $20 monthly fee plus monthly lease on the IID

    The IIL lasts for a minimum of one year and runs through the length of any longer suspension or revocation. The court can order an IIL for up to five years.

    DUI in Another State

    Oregon and Washington will suspend the licenses of out-of-state drivers that get convicted of a DUI. Thankfully, the law in both states says you should be able to get a IIL (Washington law specifically allows an IIL for out-of-state convictions) or hardship permit (Oregon says your suspension should be treated as if the conviction happened in Oregon).

    In practice, DOL and DMV don’t always follow these rules. They sometimes refuse to issue the alternative licenses. In those cases, you need legal help to enforce your rights.
    f 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.

  • 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: Proving Intoxication through Retrograde Extrapolation

    How does the prosecution prove intoxication at the time of driving in a Driving Under the Influence of Intoxicants (DUII) case?  Most people know that it is illegal to drive a car if their blood alcohol content (BAC) is at or above 0.08%.  The prosecutor can also prove intoxication, without a BAC above 0.08%, if she can show that the person was impaired to a noticeable and perceptible degree.  Either way, however, the prosecutor must show that the intoxication was present when the person was driving, even though most people don’t take a breathalyzer test to measure BAC until an hour or more after they were driving.  Many prosecutors rely on retrograde extrapolation.breathalyzer

    Intoxication Proven through Retrograde Extrapolation

    Many prosecutors rely on experts to testify regarding “retrograde extrapolation” to prove intoxication at the time of driving.  This is a scientific term for calculating how quickly alcohol leaves a person’s body (called “dissipation rate”) compared to the amount of time since driving in order to tell where the person’s BAC was when the person was driving.  In other words, even if a person blows a 0.07% BAC an hour later at the police station, a prosecutor can have a scientist testify that the person was well above a 0.08% BAC at the time of driving and so can prove intoxication that way.

    Retrograde Extrapolation is a Dubious Practice

    Use of retrograde extrapolation to prove what a person’s BAC was at an earlier time is common in many DUII trials.  Despite it’s popularity, however, leading experts in the area have referred to it as a “dubious practice.”  There are many different factors that determine how quickly alcohol leaves a person’s body, such as body size, metabolism, and whether the person recently ate a meal.  These factors make figuring out a person’s BAC in the past a guessing game much of the time.

    Challenges to Retrograde Extrapolation

    A recent case in the Court of Appeals challenged the use of retrograde extrapolation testimony in trial.  The defendant in that case argued that the practice is too unreliable and so shouldn’t be allowed in as scientific evidence.  The argument is that a jury will rely on it, because it sounds scientific, even though it’s no more than a guessing game.  Unfortunately the Court of Appeals said that the issue wasn’t preserved, so didn’t rule on whether retrograde extrapolation is admissible as scientific evidence.  The case does raise good issues, however, and it paves the road for another defendant to properly challenge the practice.  We can expect the Court of Appeals to rule on whether retrograde extrapolation can be used in the near future – could it be your case?  If you have a DUII case pending against you where you blew below a 0.08%, contact us to discuss the specifics of your case.