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. 

SHOULD I HIRE A LAWYER TO FIGHT A TRAFFIC INFRACTION?

We routinely represent individuals charged with moving violations or traffic infractions in Oregon and Washington.  Often, our clients will be so angry at the overzealous police officer, the amount of the fine, or a combination of the two, that they decide “I don’t care how much it costs, I want my day in court!”

Our firm has been successful in negotiating these cases with either the citing police officer or the attorney for the jurisdiction who can make decisions regarding dismissal, reduced charge, diversion, etc. 

Here’s what you should know in dealing with a moving violation charge and evaluating whether it’s worth it to “lawyer-up”:

• ·         Moving violations such as running a red light; speeding; failing to signal, etc are NOT crimes which means that the penalty cannot be jail.  HOWEVER, if you ignore the information on the citation in terms of responding within the designated time frame, a bench warrant will likely be issued and you could be held in jail on the warrant.  So read the citation carefully and if you are handling things on your own, make sure to respond within the designated response time. 
• When the officer pulls you over, you are obligated to cooperate, provide your driver’s license and proof of insurance/registration but you ARE NOT obligated to provide statements which help the officer’s case.  So if he or she says something like “do you know why I pulled you over?”, the answer should be “no” – the end.  Don’t go in to a long sob story acknowledging that you messed up but…our experience has sadly been that unless you’re a very attractive woman, the sob story angle never works.  Seriously.  Ask one of your very attractive female friends if they’ve ever gotten out of a ticket and they will unanimously say yes. 
• If you are one of the said very attractive women, good for you for escaping the wrath of “the man”.
• ·         If you decide to hire a lawyer, do your homework:  these cases are tricky and you should find someone who routinely handles traffic matters, is familiar with the traffic code and understands the tactical complexities of the jurisdiction bringing the citation against you.  In other words, don’t hire Uncle Ralph, bankruptcy lawyer extraordinaire, to represent you in a traffic trial.  Hire a lawyer who knows what they’re doing: an experienced defense attorney. 
• ·         Every city/county has their own rules regarding traffic offenses.  Some jurisdiction’s have diversion programs that will result in dismissal of the violation at the conclusion of a time period (usually one year).  Other jurisdictions don’t have such programs so you or your attorney need to try to resolve the matter pretrial or go to trial, cross examine the police officer and fight.  The other side has the burden of proof – not you.  With weak cases, sometimes the best option is to challenge the citation in court and let the judge decide.
• ·         The rules are often different for individuals with commercial driver’s licenses.  So if you have one, let your lawyer know right away
• ·         Finally, in Oregon if you get too many tickets within a certain period of time, the DMV will suspend your license.  Really. They Will.

Whether or not to hire a lawyer to defend a moving violation is really case specific: 

·         Do you have a good case?

·         What are the implications of a conviction?

·         Do you have prior convictions?

·         Does the jurisdiction have a history of negotiating/working things out with defense attorneys?

·         Are you willing to spend the money on a lawyer with the understanding that you may end up getting convicted and being forced to also pay a substantial fine?

As we approach the holiday season, I will close by saying please do not drink and drive.  But if you do, and you get charged with a DUI, give us a call…we can help.  

Portland Trial Lawyers Blog: WILL THERE BE RIOTS IN DOWNTOWN PORTLAND?

Portland Trial Lawyers Blog: 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 dow...

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.  

Penn State University Controversy

In regards to the terrible tragedy for the alleged victims should these allegations prove to be true, not much can be said - it is a catastrophe of epic proportions; lives were forever marred by the abuse at the hands of a figure of trust. Coach Sandusky should be punished to the fullest extent of the law for what he allegedly did to these young boys - and that comes from this writer who is both a father of a young boy, and a criminal defense attorney. For those that are interested, you can read the full grand jury report of the horrific allegations here.

What is of interest and the purpose of this post is what people think should happen to those that knew of what had occurred and didn't do what was either morally or legally required of them as witnesses to these atrocities. And, is what was morally required of those with knowledge of what had or was occurring the same as what their legal obligations were or should be?

I can tell you that as an attorney, at least here in Oregon, we are what is called "mandatory reporters" of child abuse. This is a responsibility that must be taken seriously but, thankfully, is not one that I have had the unfortunate circumstance of having to participate in as of now. However, as a mandatory reporter, we can be held liable for abrogating our duty in this regard. While I have had my questions about how I feel about this responsibility being forced upon me by my local legislature and profession, this is a case that clearly illustrates why. How many children's lives, now forever scarred, could have been saved by someone stepping up and reporting Coach Sandusky? And then ensuring that that report was followed up on halting the abuse by either incarcerating Coach Sandusky and/or treating his illness. So, where do those who were aware of what had or was occurring stand now? Should they be criminally prosecuted? Civilly sued? What is the appropriate sanction, if any? And where does that line get drawn depending on their level of knowledge, ie, whether they witnessed it themselves, were told about it by others, etc etc. While some of this case is black and white (should Sandusky get prosecuted for example), a lot of is not? Or is it? What should happen, for example, to the legendary Jo Pa?

Another interesting wrinkle for us attorneys or, more importantly, criminal defense attorneys, occurs when we become aware of allegations of abuse or potential abuse, especially ongoing abuse, when we have a duty to our clients of confidentiality. The law, and more importantly, the attorneys involved have a difficult time reconciling this for obvious reasons.

And, what about when the "abuse" is less clear than what Coach Sandusky has now sort of admitted to doing. As a parent and a mandatory reporter, what are we supposed to do with the situation when you see a parent "disciplining" their child in the grocery store? Where is that line drawn with discipline, pulling, squeezing, slapping, spanking, or other physical contact between a parent and their child - as you can see, these are not easy questions to answer. I do not look forward to the day where I am faced with having to make such a judgment call. I know from my years of work in criminal defense that I have seen first-hand how these allegations can ruin the lives of the accused in immeasurable ways regardless of the veracity of the allegations.

In addition, I am not a perfect parent. I get mad at my kids when they misbehave. Who is to judge what I do in anger or discipline of my children? Do we all agree at where that line is between discipline and abuse? Obviously, we are not talking about sexual abuse like what occurred here, but we attorneys are mandatory reporters of any "abuse". If I drag my misbehaving child out of of the grocery store by their ear (WARNING: purely hypothetical situation, this has never actually happened to my children), should someone report me if they witness this and are mandatory reporters? And, who should these mandatory reporters be? Everyone? If not, why not? Why are some of us charged with this duty while others are not?

What say you?

Stacy Schular and Insanity

I recently stumbled upon this story and just read here that good old Ms. Schular's pleas of insanity were rejected by her Ohio jury who convicted her of many, if not all, of the allegations made against her. I have to admit that I was a late comer to this one so I can't intelligently weigh in with an opinion about the case itself - and the legitimacy of her defense. But, as an experienced criminal defense attorney, I can say that sometimes you either have to go with the best defense you have or the only defense your client is willing to present regardless of the chances of success. This is not an enviable place to be as the defense attorney (not to mention the client/defendant), but if your client doesn't want to plead, you gotta try their case to the best of your ability....roll the dice with the jury, and see what comes up. Apparently for Ms. Schular, it was seven-out, craps, a loser.

Reading about this case, and part of the reason for this post, was that it reminded me of a book I read recently that I thoroughly enjoyed (recommendation and explanation to come immediately below). I thought of it due to one piece of testimony I heard about in the Schular case. Specifically, it was reported that one witness testified at trial that long ago, Ms. Schular had admitted most of the allegations to her saying that if she (Ms. Schular) got caught, she had her defense already all planned out. What was that defense you eagerly ask? Yup, insanity. Well, you can't say that sex crazed, alcohol-providing, gym teacher, Ms. Schular isn't true to her word.

And, where were all these teachers when I was in school?? My gym teacher was always some old dude in Bike shorts screaming at us to change our clothes and "get out there" - no booze, no sex, thankfully. Now, there was one creepy science teacher who was clearly gay and possibly a pedophile. He would take a liking to some students each year, not me, again, thankfully. But, he was known to provide some booze and maybe even some pot if you were lucky....I never heard about anything sexual, but he sure was creepy. But, I digress.

ANYWAY, if this witness was telling the truth, it is interesting to me because it tells me one thing about Ms. Schular - she may or may not be insane, but she surely is a psychopath. And, that brings me to the book I read. I originally heard about this book while watching The Daily Show. The author of the book was a guest on the show, see here.

So, when I saw that, I decided since I was a criminal defense attorney, I should probably educate myself some more and read this book. My only point is that regardless of how you feel about Ms. Schular, her defense, or her conviction, you should read this book whether you are a criminal defense attorney or not. It was fascinating, and here's a little sneak peek from the author himself, Mr. Jon Ronson.

In totally unrelated and yet still interesting news, a local Portland attorney has made a fantastic film that I have not yet seen but want to because in addition to my work in criminal defense, I also handle personal injury cases. It is called Hot Coffee and it's a documentary about that famous McDonald's coffee case and the bigger picture of the ongoing debate about tort reform. Rather than bore everyone with a lengthy discussion about the pros and cons of this issue, here's my take:

Everyone can get on their soap box and talk about tort reform all they want. The bottom line is this: if they, or a loved one of theirs, was seriously injured or harmed by someone else (negligently or otherwise), you better believe that person would be none too happy about their damages being capped or their case being barred from court or a jury of their peers because of tort reform. That, to me, is the whole issue and kills any arguments in favor of so-called tort reform. Its analagous to the pro-lifers who, when faced with an unwanted pregnancy of their own, or of a loved one, would privately advocate for an abortion.

Anyway, this Portland attorney, Susan Saladoff, was recently on The Colbert Report, and, in my opinion, did an excellent job. See that here, and see the movie!

Finally, in somewhat related news, another Portland attorney got a record setting verdict against the State of Oregon for abuse suffered by a young boy while in the foster child system. Again, I cannot claim I know much about the facts and the tort reformers may say this is terrible for our financially floundering state, but, while all that money won't change what happened to that little boy, it sure could help and I'm not about to say that after all he's been through (and will have to go through in the future), he doesn't deserve it.

Amanda Knox FREED!

Many of us have followed the Amanda Knox case for years.  It's hard to believe that in this day and age, a factually innocent defendant could still be convicted of murder and spend years of her life incarcerated.

Knox is one of the lucky ones.  Her conviction was overturned and she's going home to Seattle after serving four years in prison for a crime she did not commit.

I guess you could say that the West Memphis Three, who spent nearly two decades in prison for crimes they did not commit are lucky as well - they didn't die in prison.  Sadly, the prosecutors  required the three to plead guilty in exchange for their freedom - despite the fact that the evidence overwhelmingly proved that they had nothing to do with these crimes.

Troy Davis, on the other hand:  not so lucky.  Despite countless witnesses recanting their testimony. Despite, weak and shoddy evidence, the state of Georgia executed him anyway.  138 innocent people have been released from death row.     Unfortunately Troy Davis was not one of them.

So my question for you:  if you execute an innocent person.  If you insist on carrying out an execution despite there being solid evidence supporting innocence.  If you are too arrogant to admit that you made a mistake and someone is put to death because of that arrogance, shouldn't you be charged with murder?

Congratulations to Amanda Knox and her family.  Congratulations to the West Memphis Three.

Condolences to the Davis Family.