Doré Law Firm

Tag: traffic

  • 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.

  • 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.

  • Big Changes May be Coming to Oregon Cell Phone Tickets

    Oregon Cell Phone Tickets

    Oregon Cell phone tickets, or Oregon mobile communication device tickets, are a class D violation under ORS 811.507. You can get a cell phone ticket if you drive a motor vehicle on a highway and use a cell phone to make calls or text without a hands free device, like a Bluetooth headset, or a hands free mode.

    Defenses

    There are a few defenses to Oregon cell phone tickets such turning the phone on or off or “activating a function.” Unfortunately, “activating a function” isn’t defined in the statute but I read it as allowing you turn apps on or off, dial the phone, or set a GPS destination. Unfortunately, that open interpretation also allows a judge a lot of leeway in deciding whether you were activating a function or not. Fortunately, the way the statute is written makes it look like the officer has to prove that you weren’t just activating a function.
    You can also use a cell phone in the scope of employment if using a function of the cellphone that only allows for one way voice communication. Unfortunately, it’s totally unclear what that means.

    20130415-230214.jpg

    Big Changes on the Horizon for Oregon Cell Phone Tickets

    The Oregon legislature is considering some big changes to Oregon cell phone tickets right now that you should be aware of.

    Senate Bill 9 would raise the price of a cell phone ticket to a presumptive fine of $260.00 (and a maximum of $1,000) if you’re caught texting without a hands free accessory. Talking on the phone stays at $160.00.

    House Bill 2790 would the price of any cell phone ticket to $435.00 with a maximum of $2000.00. Yikes.

    Senate Bill 294 would make it legal for taxicab drivers to hold cellphones so long as its only “one way voice communication.” The Oregonian is reporting the bill as allowing taxi cab drivers to talk on cellphones while driving. Unfortunately, the law itself isn’t so clear. it doesn’t say what “one way voice communication” means and most cell phones do two-way voice communication. Any cabbie talking on the phone – if it was a two-way call – could still get a cell phone ticket.

    Unfortunately, SB 294 does nothing to clear up how exactly cabbies or other people using a phone for work communication can use the phone. One way voice communication seems to mean something like the old Nextel systems – Push-to-Talk software – that’s now available in some apps like Voxer or Zello.

    Until that definition is cleared up, my recommendation is to just get and use a Bluetooth headset. It’ll save you a headache – and some wallet ache in the future.

  • 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.

  • 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.Commercial Truck with Tandem Axle leaves 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.

  • 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.

  • 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.

    Heat Fan Parking Only traffic signReserved Parking Packers Fans Traffic Sign

    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?

    A fake-looking no parking sign in Portland, OregonThe back of a fake-looking no parking sign in Portland, Oregon

    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?

    A Real No Parking Anytime Sign in Portland, OregonThe back of a real no parking anytime sign in Portland, Oregon

    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:

    A real No Parking Mon - Fri 4 - 6 in Portland, Oregon

    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.

  • Tualatin Photo Red Light Tickets

    Did you receive a photo red light ticket in Tualatin before 12/21/11?

    If so, contact me immediately! Before that date, Tualatin had a serious problem with its photo red light program and we may be able to have your ticket dismissed.

    **

    Was your ticket issued after 12/21/11?

    Tualatin still has some less serious problems with its program. Contact me today so we can discuss your case!

     

  • Because Everyone Needs a Good Lawyer.

    Dedication

    There are few things that can change the course of a legal matter like a dedicated, good attorney. The attorneys of Doré Long are here and ready to help you with any criminal defense, traffic, juvenile or family law matter. We represent clients in Oregon and Washington*.

    Service

    We spend time with our clients. We’ll help you understand your legal claim or the charges against you. We’ll explore your options and figure out which path will be best for you. We’ll work together to resolve your problem. If we can’t make get you out of the situation without some trouble, we’ll find a way to minimize it.

    We’re dedicated to being your attorney. We won’t tell you what to do or make you do anything. You choose the goals and we’ll do our best to make sure we reach them.

    Experience

    We’ve handled thousands of cases, hundreds of motions and taken over 80 cases to jury trial. We’ll use every tried-and-true (and some new-fangled) method to throw out evidence, convince the prosecutor they can’t prove their case or explain your side to the jury.

    We want to help you.

    When you have legal problems, you need someone that wants to help. The best feeling we get in our work is to help a client get to their best possible outcome.

    Let Doré Long help you. Contact us today to discuss your case.

     

    *Blake Doré is licensed in Washington.