JUST ANOTHER TYPCIAL WEEKEND AT ROGOWAY GREEN ENTERPRISES

This weekend, I will be loading the family into our wood-paneled station wagon (okay fine, our ubiquitous silver Honda Civic)  and driving to Newport, Oregon for the weekend to attend the Oregon Criminal Defense Lawyer's Association annual Sex Crimes conference.  

What the heck is a Sex Crimes conference, you ask?  Exactly what it sounds like. Criminal defense attorneys like us hear from a variety of state and national experts on topics related to defending individuals charged with sex crimes.  One session is called:  "Dealing with the Yuck Factor." And yes, there is some yuck to this particular area of the law. 

I am particularly interested in a Saturday presentation by Portland attorney Lisa Maxfield: "Witness Competency After Lawson: Laying the Foundation." Lawson was a man convicted of murder based on faulty eye witness identification.  His case was overturned by the Oregon Supreme Court primarily because of the suggestive and manipulative way law enforcement obtained the "eye witness identification."  

It is a fascinating topic and I will report back what I learn.  In the meantime, if anyone suggestions on how to maintain a bonfire and make s'mores in the pouring rain, I'd love to hear them. 

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. 

WILL THERE BE RIOTS IN DOWNTOWN PORTLAND?

In a few, short hours, the Portland Police Bureau will likely forcibly remove those individuals who have been camping at two parks in downtown Portland for more than a month. If protestors refuse to leave, police officers likely will arrest them on charges such as: criminal trespass, disorderly conduct, interfering with a police officer, resisting arrest and unlawful camping, to name a few. 

If media reports are accurate, some of the protesters intendto stay put and will resist their eviction. We know that several area civil rights attorneys plan on being present downtown when the eviction starts to advocate on behalf of the protestors, advise them of their rights and assist them with representation if necessary. 

As a criminal defense attorney who greatly values fundamental constitutional rights such as the rights to assemble and speak freely, I must confess that I’m torn on this one. 

I definitely support the concept of the Occupy Movement. Like so many others, I too am fed up with an unmanageable student loan debt, crazy-high property taxes, and the requirement that I pay for my daughter’s full-day kindergarten at a PUBLIC ELEMENTARY SCHOOL.

 And the list goes on.

While corporations, banks and big business continue to get break after break, exemption after exemption. 

I get it. 

But I’ve been down to Lownsdale Square and Chapman Square. From a pragmatic standpoint I’m confident that the majority of the people living down there are not representative of my struggles. Frankly, I’m not sure what most of them are protesting.   And because of the poor decisions our city leaders have made over the past month about these sites, the police officers who are there tonight are in anunwinnable situation. 

So here are my questions:

·         If overnight camping in Portland parks is illegal, why has there been an exception here?

• ·         Why did the city publicly sanction these activities by providing services to the campers? 
• ·         Why do the rest of us bear the burden of paying what it will take to repair these beautiful public parks and pay the hundreds of thousands of dollars in overtime to city employees?
• ·         If the campers have been warned and warned for days about the forced eviction,  if representatives from homeless and social service agencies have taken the time to provide the campers with alternative resources, and if the police have taken every possible measure to avoid conflict, and the campers still resist/fight/commit crimes, should I have any empathy?

And no.  I’m not a Republican.  I’m a grown-up.  And yes, there is a difference.