Public Defenders

A blog that I like to follow is The Library of Defense. It's no coincidence because my old employer publishes it. Regardless, it is informative, especially to a criminal defense attorney like me.

Anyway, The Library of Defense linked to me this editorial in the New York Times. An interesting piece about the difference between a public defender - employed and trained by a public defender's office; and, a court-appointed defense attorney, who is often a sole practitioner who may have some experience, but......may not.

As someone who was a public defender, trained at one of the most organized public defense offices in the nation, I can't argue their point. And, for criminal defendants, they will usually be better off with someone from an office like my former one than most other situations. But, there are no guarantees - someone who is good at their job, is good at their job.

What I find strange about this editoral, and many like them, is that they look at murder cases as the example. If you really want to know what kind of service people are getting from their free lawyers, look at the misdemeanors and the low-level drug and property felony cases - the battle in the trenches, if you will.

The one constant for both is that they will be woefully underpaid for what should be expected to represent someone charged with murder. And, regardless of their employer, they will surely be outresourced, outmanned, and paid signficantly less then their counterparts on the side of the prosecution. When I was a public defender, I was consistently paid about 1/3 less than the prosecutor. And, in my humble opinion, my job was a lot harder.

Anyway, another thing I find interesting is that the editorial measured success by the difference in sentences between the well-represented and the others. In other words, if you got less time, you had a good lawyer. I guess that makes sense but wouldn't the crime and punishment defenders say - "all those muderers got less time, how is that better?" Just something to think about....

TIS’ THE SEASON OF DRINKING AND DRIVING

It’s that time of year again:  the holiday season.  The season of a. awkward company Christmas parties; b. aggravating family gatherings; c. serious financial stress

        

          With all of it comes an increase in DUII arrests. 

While everyone has fundamental constitutional right to fight a criminal case and require the state to prove them guilty beyond a reasonable doubt, when it comes to DUII, diversion is often the most sensible resolution. 

Bottom line:  if you are eligible for diversion and you enter and complete the program, your case is dismissed.  The consequences you avoid by successfullycompleting diversion include:

·         Not having your driver’s license suspended for an additional year (on top of the initial DMV suspension that comes with a failed breathalyzer or refusal to blow)

·         Not having to purchase SR 22 insurance or pay for an interlock device installed in your car

·         Not having a DUII conviction on your record

·         And so on, and so on

We are often asked, “If I’m eligible for diversion should I even bother paying for an attorney? Can’t I just do it myself?”

My answer is always the same:  anyone facing a criminal conviction and the consequences that come with such a conviction should retain an experienced lawyer to:

·         Review and evaluate the State’s case

·         Advise on all possible options (including diversion when applicable)

·         When applicable, put on a hearing for the Court arguing to allow diversion entry on those occasions when the  State objects;

·         Assist the client through the process

·         Advocate on behalf of the client and/or

·         Force the state to prove the client guilty beyond a reasonable doubt when trial makes the most sense

In short, yes. Even those who are diversion eligible and want diversion should still retain an attorney.  If my brother/mother/friend was arrested for DUII, my advice would be that they retain counsel regardless of whether or not they are diversion eligible.

And here’s the thing:  even if you’ve never been arrested/convicted/accused of DUII in the past, there is no guarantee you will get into diversion.

Example:  in Oregon, if you possess a Commercial Driver’s License at THE TIME of the incident, you are disqualified from diversion.  It makes no difference whether:

·         You were driving a commercial vehicle at the time

·         You had stopped driving commercially ten years ago and didn’t even need the CDL

I realize it’s counterintuitive to think “hey, I don’t use my CDL anymore and if I get a DUII in the future I won’t be able to do diversion if I still have it, so I’m going to go to the DMV to get a regular driver’s license.”

But that’s exactly what you should do:  if you no longer use your CDL, go to DMV and get yourself a regular driver’s license. 

Here are the basic criteria regarding Diversion entry in Oregon.

(1) You have no charge of an offense of DUII or its statutory counterpart in any jurisdiction, other than the charge for the present offense, pending on the date you file the petition for a DUII diversion agreement;

(2) You have not been convicted of an offense described in paragraph (1) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(3) You are not participating in a DUII diversion program or in any similar alcohol or drug rehabilitation program, other than a program entered into as a result of the charge for the present offense, in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;

(4) You did not participate in a diversion or rehabilitation program described in paragraph (3), other than a program entered into as a result of the charge for the present offense, within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(5) You have no charge of an offense of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in any other jurisdiction on the date you file the petition for a DUII diversion agreement;

(6) You have not been convicted of an offense described in paragraph (5) within the period beginning 15 years before the date of the commission of the present offense and ending on the date you file the petition for a DUII diversion agreement;

(7) You did not hold a commercial driver license (CDL) at the time of the offense;

(8) You were not operating a commercial motor vehicle at the time of the offense; and

(9) The present DUII offense did not involve an accident resulting in:

(a) Death of any person; or

(b) Physical injury* to any person other than yourself;

(10) You have not been convicted of a felony DUII in Oregon or elsewhere. 

          You see, all this lawyer talk is confusing, isn’t it?  It’s why you should consult with an

 experienced criminal attorney if charged with DUII or any crime. 

          Happy Holidays, stay safe, don’t drink and drive.

          But if you do, give us a call….we can help.

*physical injury in Oregon means “substantial pain or impairment of physical condition.”  In other words, it’s subjective and arguments CAN be made to the Court proving that physical injury was not caused.  So don’t just give up on diversion if a victim alleges injury.  Discuss it with your attorney.