Police Are Issuing Tickets During the Pandemic

Sometime early in lockdown folks in the Portland metro area heard that cops weren’t responding to any non-life threatening calls that weren’t domestic violence related. A lot of people took that to mean people weren’t going to be pulling people over for speeding. Since then we have seen an uptick in high speed tickets as well as a large number of people cited and released for Reckless Driving. Sunday is not a fun day when the cops are involved.

If you are convicted of going 100 mph or more the judge must suspend your license for at least 90 days.

Reckless driving is a Class A misdemeanor, which is the same crime level as a DUII.

Based on my conversations with clients and police, it seems like traffic enforcement is higher than usual. Perhaps because crime in general and road traffic are down the cop to driver ratio is higher?

Either way, we’re working as usual if you need us.

EO

New Cellphone/ Mobile Electronic Device Law in Effect October 1, 2017

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.

 

UPDATE:

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.

It’s Still Illegal to Impose More Jail For Going to Trial

The original post on this topic is here: More Jail for Trial? No!

The Court of Appeals has reversed three convictions recently for judges imposing more jail on someone who went to trial:

State v. Robledo, 281 Or App 96 (2016) (Egan, J.) Robledo opinion

State v. Bradley, 281 Or App 696 (2016) (Tookey, J.) Bradley opinion

State v. Criswell, 281 Or App 146 (2016) (Garrett, J.) (this one was for a harsher sentence following appeal) Criswell opinion

Point being, it’s really true: courts cannot use the sentencing power as a stick to force people into pleading guilty, and lawyers should not assist with it. It’s illegal, and it’s morally reprehensible.

Photo Traffic Tickets

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.

Oregon DUII Diversion — How Long to Decide?

If you’re arrested for DUII and you’re eligible for the Oregon DUII Diversion program, the law generally requires that you file your Diversion petition within 30 days of your first court appearance. ORS 813.210(1). However, that deadline can be extended for “good cause.” ORS 813.210(1)(a). The legislature didn’t give us much guidance on what constitutes “good cause,” but they told us what doesn’t: filing a motion to suppress, demurrer, omnibus hearing, or starting a trial.

That 30 day period is extended in drug DUIIs if police obtained a blood or urine sample and there’s no notice of >.08% BAC. In that case, the Diversion window ends 14 days after the prosecutor sends blood or urine testing results to the defendant. ORS 813.210(1)(c).

In 2013 Oregon passed a “Brady Bill,” codifying the discovery obligations of Brady v. Maryland, 373 US 83 (1963). The prosecutor must disclose police reports, notes, and any lab note results of blood alcohol content (BAC). ORS 135.815(1), (3). But subsection (2) addresses timing, indicating those disclosures “shall occur without delay after arraignment and prior to the entry of any guilty plea pursuant to an agreement with the state. If the existence of the material or information is not known at that time, the disclosure shall be made upon discovery without regard to whether the represented defendant has entered or agreed to enter a guilty plea.” ORS 135.815(2).

Most courts understand that a guilty or no contest plea entered without full discovery is on its face not an intelligent and knowing plea. That is, without a lab report indicating what BAC the state attributes to the defendant, the defendant cannot know how her lawyer would defend the case. Lawyers do not defend under-the-limit DUII cases the same way we defend over-the-limit DUII cases. An accurate measurement of BAC can help protect the innocent and convict the guilty, and it is arguably the most important piece of evidence in any DUII case — because it harks from science, not opinion.

Point being: even though the legislature didn’t tell us what “good cause” meant for delaying an Oregon DUII Diversion decision, they did tell us that we’re not supposed to permit guilty pleas without full discovery.

There are times where it may, nevertheless, be wise to enter a plea to enter DUII Diversion without full discovery. For instance, if you feel that you were three sheets to the wind while driving, and you want to start the Diversion obligations, you are not required to wait until blood draw results come back from the Crime Lab (which typically take 6-8 weeks at the time of this writing). The nice thing about starting Diversion obligations in that situation are: (1) they then end sooner; (2) sometimes starting the process of Diversion helps deal with guilt or shame brought on by the arrest; (3) the Ignition Interlock Device (IID) requirement can start during a time when you’re already suspended for refusing or failing a breath test; and (4) early recognition of an alcohol problem can be looked on favorably by courts and prosecutors in relation to other pending charges from the night of the arrest (Reckless Driving, Reckless Endangering, etc.).

The short answer to “how long you have to decide” is: 30 days from your first court appearance. But if discovery is not complete, the law makes clear that you shouldn’t be required to enter a plea and enter the Oregon DUII Diversion program just yet — to give up your rights and defenses at trial, you have to know about what they’d be. And most lawyers can’t tell you how they’d defend your case without knowing what the BAC is.

DUII Trial — Won’t the Court Impose More Jail?

Oregon DUII defendants are frequently concerned about an increased  jail penalty if they lose at trial after rejecting a plea deal.

It is unlawful for a court to “impose a sentence that is longer than it would have been had [one] not exercised the right to go to trial or not utilized a defense that was inconsistent with owning up to his misdeeds.” State v. Fitzgibbons, 114 Or App 581, 586 (1992). “[C]ourts must not use the sentencing power as a carrot and stick to clear congested calendars, and they must not create an appearance of such a practice. * * * [T]he record must affirmatively show that the court sentenced the defendant solely upon the facts of his case and his personal history, and not as punishment for his refusal to plead guilty.” 114 Or App at 586-87 (quoting State v. Smith, 52 Or App 681 (1981), and United States v. Stockwell, 472 F2d 1186, 1187 (9th Cir), cert den 411 US 948 (1973)).

Fitzgibbons reversed a 10-day jail sentence for harassment based in part on the judge’s commentary “that negotiated pleas are based upon whether or not someone is willing to accept responsibility for their behavior and talk to the Court about that behavior and move on with their life or whether they wish to go to trial, they wish to contest it. Those are two different mind sets. I’m dealing with two different people, I’m dealing with two different situations. That’s what I’m looking at. I’m not looking at a penalty for a trial.” 114 Or App at 585-86. The Court of Appeals found sentencing with those considerations was, in fact, a trial penalty. Id.

Reversal was similarly required in State v. Qualey, 138 Or App 74 (1995):

“From my perspective [defendant], you traumatized [the victim] twice: Once was on the day of the incident, and the second was putting him through this court hearing here again. That was a choice you made after lots of reflection, [and] after plenty of opportunity to consider the alternatives * * *.”

After the court conveyed the terms of defendant’s sentence, defendant’s attorney questioned the motivation behind the sentencing decision:

“It sounds as though part of the sentence being imposed is because [defendant] exercise[ed] his constitutional right to have a trial. He is being penalized because he asked for a trial, and the District Attorney felt compelled to call the witness.”

The court responded:

“[Defendant] is entitled to exercise his rights. He is not insulated from the consequences of doing that when it harms other people and there are viable alternatives. * * * The District Attorney offered him Assault in the Fourth Degree and no jail time prior to trial, and [defendant] decided to roll the dice and gamble. That involved not only him and court time and you and the D.A., but it also involved the witnesses, including a small child * * *. That was a decision [defendant] made and he is not insulated from the consequences of that simply because he had a constitutional right to make that decision.”

138 Or App at 76-77 (emphasis in original). Reversal was required – trial penalties simply impermissibly burden and chill a defendant’s absolute right to her day in court.

Point being: it is unlawful for a court to issue a harsher punishment to an Oregon DUII defendant who loses at trial than to a defendant who enters a plea without trial. That’s because trial is a right — not a license, or a privilege. One cannot be punished for exercising a right. Otherwise, it’s not a right at all.

There are two scenarios where I risk more jail by going to trial: (1) where the DA makes a plea offer that dismisses charges (especially more serious charges — particularly if they’re Measure 11); or (2) where the defendant testifies. Scenario 1 is self-explanatory. Scenario 2 happens because some judges propose that if a defendant testified, yet a jury found them guilty, the jury must have believed there was lying in the court. For that reason, among many others, it’s often a better idea in DUII trials to not testify or offer additional evidence. Now that more DUIIs are videotaped, I find less reason to call clients as witnesses at trial — because they’ve said everything important on that video, on the night of the arrest. And in a case where you don’t testify, the judge instructs the jury: “A defendant has an absolute constitutional right not to testify. Therefore, a defendant’s decision not to testify cannot be considered as an indication of guilt. It should not be commented on or in any way considered by you in your deliberations.”

My experience with juries (including being on a jury) leads me to believe that jurors honor and follow those instructions. They want to follow the law, and they will enforce the Constitution. Juries are a great bulwark against the accusatory power of the state — a power that, unchecked, can destroy lives based on raw accusation.

AFTERWARD

This blog post was — surprisingly to me — probably our firm’s most controversial. Most comments on Facebook came from defense lawyers defending judicial practice in their locality of punishing people for exercising their right to trial. Some of the posters took a “federalist” bent, arguing that a trial penalty is perfectly OK in federal courts. The argument forgets that we have state law right on point — and we don’t get to federal law until we deal first with state law. We are not dealing with a blank slate, with no state law decision.

The case is Fitzgibbon, cited above. What follows is a portion of the trial judge’s impermissible commentary that resulted in reversal for re-sentencing: “And you know and I know that in Federal Court that negotiated pleas are based upon whether or not someone is willing to accept responsibility for their behavior and talk to the Court about that behavior and move on with their life or whether they wish to go to trial, they wish to contest it” (emphasis added). In other words, the Court of Appeals has met this “federal sentencing” argument, and said: NOT HERE. If you can be punished for exercising a right, it is no right at all.

IID False Positives: donuts, bagels, Altoids, and coffee

How to avoid IID false positives? Don’t eat or drink anything within 15 minutes of using an Ignition Interlock Device (IID). And since they come with “rolling re-tests,” don’t eat or drink while driving at all.

That’s the advice I give everyone about IIDs. It is shocking, and a life-change for many busy people who typically have coffee or food while driving. I give this advice, however, for a few different reasons: Continue reading

DUII Mugshot Websites and HB 3467

Many of my DUII clients have been victimized by the “mugshot” websites or “Busted”-type magazines. Those entities prey on human frailty. Their customers are, in a documented sense, dealing with truly low self-esteem.

On one hand, who cares about the troglodytes who would buy (!) Busted or check out those websites? On the other hand, many employers “Google” someone before offering them a job? Continue reading

Relicensing and Proof of Treatment

For folks looking to reinstate their driving privileges: DMV’s rules require proof of successful alcohol treatment before you can get your license back following a DUII conviction. There are a only a few, narrow exceptions: (1) it’s been more than 15 years; (2) a Circuit Court judge signs an order that says you made “sufficient steps” to complete treatment; or (3) it’s an out-of-state DUII conviction we’re talking about. The rule reads as follows:

735-070-0085 Continue reading

Who is an Oregon CDL Holder? It’s not who you think

If you look at this issue on Oregon DMV’s website, or “Google” it, you’ll often get this (incorrect) answer: “Oregon statute defines a CDL holder as a person who was issued a CDL by DMV or the licensing agency of any other jurisdiction, as long as the CDL is:
* Not expired, or if expired, expired less than one year; or
* Suspended, but not cancelled or revoked.” Continue reading