Doré Law Firm

Tag: criminal defense

  • 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.

  • 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.Breath Test Picture

    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.

  • 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.

  • 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.