For the first time in over 15 years Oberdorfer Law Firm LLC is moving. On Monday, August 28, 2017 we will open at 4080 N Williams Ave. Suite 100 Portland, Oregon 97227. We will be on the second floor over XLB and Phillippe’s Bread.
On August 2, 2017, Governor Kate Brown signed House Bill 2597 into law. HB 2597 amends our current cell phone law, ORS 811.507, Operating a Motor Vehicle While Using a Mobile Communication Device to Operating a Motor Vehicle While Using a Mobile Electronic Device.
The changes go far deeper than the title, of course. The new law is a reaction to State v. Rabanales-Ramos, a 2015 case that gave us a little more wiggle room when it came to cellphone tickets. Under the new law, a Mobile Electronic Device is defined as any “…device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.” This covers far more than our old definition of communication devices, which was “…a text messaging device or a wireless, two-way communication device designed to receive and transmit voice or text communication.”
Under the new version a court can find us guilty when we “hold” an MED or use an MED “for any purpose”. We can’t use it when we are at a stop sign or stopped in bumper to bumper traffic because “[d]riving means operating a motor vehicle on a highway or premises open to the public, and while temporarily stationary because of traffic, a traffic control device or other momentary delays.” That means we can no longer rely on the traditional definition of “driving” – to move or propel.
In addition to the stricter law, the legislature has drastically increased the penalties. Operating a Vehicle while using a Mobile Electronic Device will become a B violation with a presumptive $265 fine. If there is a crash you’re looking at A violation with a presumptive $435 fine. Penalties will increase dramatically for subsequent convictions. For a first offense the court will offer a class in lieu of a fine, but that arrangement puts a conviction on your record. A second conviction in ten years is deemed an A violation, with no option to take a class. The offense will be enhanced to a B misdemeanor, an actual crime with potential jail time with a minimum fine of $2,000 for a third conviction in 10 years. People who were convicted under the previous law will also face the increased penalties, so I’m preparing to challenge prior convictions.
I still see some defenses in there, but they are doing their best to chip away at them. I look forward to fighting back.
It looks like misdemeanor treatment will be based on previous convictions of the new MED law rather than the MCD law we’ve had for a few years.
Many people just pay photo tickets believing that the photograph makes it too hard to win. In fact, photo tickets come with a series of hoops for the government which often makes them more winnable than traditional tickets.
Once you hire an attorney we will give the court and prosecutor notice that we are “challenging the statutory preconditions to the issuance of the citation. We typically call this a King Motion, after a case called “State of Oregon v Kermit King”. ORS 810.436 and 810.439 lay out the preconditions like a checklist.
The precondition I get the most traction out of at trial is 810.439(E) or the sister statute 810.436(d); which require the government to show that the citation was mailed within 6 or 10 days respectively. Since the cop didn’t mail it the government will have to bring someone who has personal knowledge about the mailing. If at all possible, save the envelope the ticket was mailed in so we can check the postmark. If we can show it wasn’t postmarked in time, we should win!
Many of my clients tell me that they didn’t see the required signage. Most cops working the vans simply testify that they put the signs up and that is the end of it. Judges tend to believe that it’s more likely the driver missed the signs than that the cop is lying under oath. There are times, especially with fixed photo radar, that we can impeach the officer’s testimony with photographs showing the signs were not in compliance.
Another question I get a lot is about the photos themselves; they tend to be blurry and sometimes even dark. The legislature seemed to take bad photography into consideration when they added the rebuttable presumption to the preconditions. That means it is up to the defendant to show that they were not the driver. Typically the government has burden of showing that the defendant was driving but that has been shifted in these tickets.
If you aren’t the driver, sign the certificate of innocence and send it back ASAP. Unless you are a business or government entity you do not have to rat out the driver. If it was you or you can’t tell, hire a lawyer, plead not guilty and go to trial. False swearing is a felony, you don’t want to turn your traffic ticket into a crime of moral turpitude.
As in any legal matter, it’s always easy to get a good result with a lawyer by your side.