Straight Talking on The Law

Driving Under The Influence of Allergy Medication?

 - New Proposed Oregon Law Would Make it So -

By Jennifer Robins, DUI Defense Attorney

Proposed House Bill 2115 could make drastic changes to Oregon DUII law.  Currently, you can be charged with a DUII if you are under the influence of alcohol, inhalants (think huffing spray paint) or a controlled substance.  A controlled substance is any drug listed in the Federal Government’s Schedule of Controlled Substances (which can be found at http://www.deadiversion.usdoj.gov/schedules/orangebook/orangebook.pdf).  In very general terms, a controlled substance is any street drug or certain prescription drugs, such as morphine or oxycodone, etc.

The new House Bill would also make it a crime to drive under the influence of “any other drug,” as defined by statute.  The statute is Oregon Revised Statute 475.005(13), but basically means any drug you take, even over the counter or homeopathic remedies, that adversely affects a person’s mental or physical faculties to a noticeable and perceptible degree.  I frequently take over the counter allergy medication and it can make me feel “loopy”, and this law would allow arrest and prosecution if police think I am driving under the influence of allergy medication!

The proposed law does allow a defense to a DUII charged under this provision if the defendant can prove that they lawfully obtained and used the drug, they used the drug in the prescribed dosage and followed all warnings from the manufacturer or pharmacist or physician, and that they experienced a reaction they could not have reasonably anticipated.  This defense would not be allowed if the “drug” was taken in conjunction with alcohol, and inhalant or a controlled substance.

DUII law in Oregon changes frequently, and proposed House Bill 2115 would open a whole new can of worms.  If you or someone you know is facing a DUII, it is important to speak with an experienced Oregon DUII attorney as soon as possible.   

Crime Victim Attorneys

By: Jennifer Robins, Defense Attorney

Are you the victim of a crime?

There are a variety of reasons that a crime victim should consult with an attorney, especially one well versed in Oregon criminal law.  There are two scenarios I see often:

1. The crime victim is on board with the prosecution and wants assistance with the criminal process and emotional trauma that the process can cause.  The Oregon Constitution provides extensive protection for crime victims and an attorney can assist you in knowing your rights.  Whether you are a victim of domestic violence, a sexual assault or even a minor hit and run accident, consulting with an attorney would be beneficial to help protect your rights.
2. The crime victim is not on board with prosecution.  Occasionally, law enforcement and/or the prosecution can get over-zealous.  Recently, I represented a client who was labeled by the State as a crime victim, when in all actuality, the client was not.  My client was kept from a member of her immediately family for 15 months while the case was pending.  After a not guilty verdict at trial, she was finally able to hug that family member again.  Through the entire case, my client and I maintained that the criminal conduct charged never happened, and the jury saw it our way. 

If you are the victim of a crime, no matter how minor, please contact our office to speak with a criminal attorney.  Our phone conversations are free of charge, but may be able to give you piece of mind.  You have rights and you should have someone with you to protect those rights.

Theft Charges in Oregon. Avoiding a Conviction Through a Civil Compromise

By: Ryan Anfuso

A frequent question we get from clients who are charged with theft in Oregon is how exactly the arrest or conviction will impact them.  Often the very first thing we hear from a client is…”I have never been convicted of a crime before and I recently was arrested and charged with misdemeanor Theft. I am guilty of the charge, does that mean I may just as well plead guilty without a lawyer and be convicted? If I am convicted I could lose my job!”

The answer is, even if you did commit the crime, you should not plead guilty without talking to an experienced Oregon criminal defense attorney. You may be able to get the charge dismissed through a civil compromise.

A civil compromise is an agreement between you and the injured party wherein both parties agree to certain terms and the result is a dismissal of the charge if accepted by the court. Often times this means that you would agree to compensate the injured party for any damages they may have suffered. There are a number of charges in Oregon that can be dismissed upon execution of a civil compromise agreement, and misdemeanor Theft is one of them. 

A civil compromise agreement is authorized by ORS 135.703 – ORS 135.709. A civil compromise agreement is available to a narrow class of misdemeanor criminal charges. Most domestic violence offenses are not subject to civil compromise, i.e. offenses committed by one family or household member against another family or household member if the crime was either Assault in the Fourth Degree, Assault in the Third Degree, Menacing, Recklessly Endangering Another Person (under certain circumstances this charge can be compromised), Harassment or Strangulation.

Many driving and non driving crimes can also be civilly compromised such as Failure to Perform the Duties of a Driver (Hit and Run), Criminal Mischief, Trespassing and Recklessly Endangering to name a few. If you are charged with any of these crimes in Oregon you should contact a lawyer and discuss your options.

Just because you may be guilty doesn’t mean you don’t have some very good options to avoid the harsh impact a criminal conviction will have on your life.

Harris Law Firm offers a free 15 minute telephone interview with people charged with crimes in Oregon. We can usually let you know if you could qualify for a civil compromise, and quote you a flat fee for the cost.

Ryan Anfuso is an Oregon criminal law attorney. He practices at Harris Law Firm, a general practice law firm with offices in Hillsboro, Portland, and Tualatin Oregon. 

Diversion in Oregon. Ignition Interlock Requirement and Work Vehicles

By: Ryan Anfuso

You’re on Diversion. You avoided a DUII conviction. That’s good. Now As part of the DUII Diversion agreement, the court ordered that an approved ignition interlock device (IID) be installed in any vehicle operated by you during the period of diversion. Violation of this section is a Class A traffic violation in Oregon. You were informed by the court and your lawyer that if you drive in violation of this section you can be terminated both from the Diversion program and be sentenced on DUII charge.  But what about a work vehicle? Does that have to have the IID installed, or are there any exceptions to this requirement?

The plain text of the statute seems to indicate the answer is no. But, as with many interpretations of law, the answer is….maybe. It’s arguable that you are eligible to drive an employer owned vehicle within the course and scope your employment without installing the ignition interlock device on an employer owned vehicle so long as your employer is notified of your participation in the diversion program.

The ignition interlock requirement during diversion is a mandatory requirement that began in January of 2012. Sometimes when new legislation takes effect, the old statutes that were in place no longer make sense. In the case of ignition interlock, there is a good argument that you can drive an employer owned vehicle without an ignition interlock device if you are required in the course and scope of your employment to operate a motor vehicle owned by your employer, and that your employer has notice that you are operating the vehicle while you are participating in the diversion program and would otherwise be required to have an ignition interlock device installed.

                The current law, ORS 813.606, only allows for this exception under narrow circumstances. In order to qualify for the exception as it presently stands, you must either be convicted of DUII or be operating on a hardship permit resulting from a suspension based on either a failure to blow or a breath test failure. In the case of DUII diversion, you are not convicted and therefore the exception for a suspension resulting from a conviction would not apply. Furthermore, because your license was not suspended by entering the diversion program you may not be operating under a hardship permit, and therefore the exception for a hardship permit doesn’t apply.

Nonetheless, it is clear that the legislature intended to create an exception to the ignition interlock requirement when an employee is operating an employer owned vehicle in the course and scope of their employment.

 Though I cannot promise you that you would not be found in violation of either the Diversion agreement if you are operating an employer owned vehicle under the circumstances described above, there is a very good argument you would not be in violation if you were operating such a vehicle provided you were operating it in the course and scope of employment and that you have proof of employer notification with you in the car.

If you had an attorney represent you in your diversion, you need to contact that lawyer and ask his or her advice on this matter. It is not settled law, and the plain text of the new diversion law doesn’t provide for an exception. 

 

Ryan Anfuso is a Portland DUII Attorney practicing Criminal Defense Law at Harris Law Firm.

 

BAC App's. What Were You Thinking?

By: Robert Harris, Oregon DUI Attorney

I'm investigating whether I should invest in an app for our law firm. I was thinking how it would go together, what should be included, and what functions we could provide that would be valuable to our clients.

Since we do a fair amount of Oregon DUII cases, I thought it may be interesting to include a function that calculated your blood alcohol content (BAC). I saw several BAC calculators on iTunes, and I was considering incorporating one into our app.

They're pretty simple, and all work about the same. You just put in your gender and weight, then you track your drinks by type, volume and time consumed. Using what is
called the Widmark Formula, these apps then calculate an estimate of your current BAC. So hopefully, you know if you're safe to drive.

That sounded like a nice value added item for clients. Then I started to reconsider. What would happen if a client had used that app, then was arrested for DUII?

 Officers always ask drivers when they started drinking, how much they had, and when they stopped drinking. Obviously, this is great information for an officer to have. And of course, many drivers will say...two or three drinks. But what if you logged your drinking that evening on the Harris Law Firm app?

Officers have found incriminating photos, texts and emails on phones. Smart phones are the personal computer, social networking hub, diary, message center, three ring binders of our time. Though I haven't seen it happen yet, someday officers are gong to ask to check every smart phone of every DUI defendant to see if there is a BAC app on it. 

Saving a detailed log of your drinking....? Maybe not such a good idea. It is not going to be a part of our Harris Law app design.

Preventing Sexual Abuse by Coaches - The Lessons From The Jerry Sandusky Trial

By: Robert Harris, Portland Attorney

Oregon law (ORS chapter 163) pertaining to criminal sexual abuse was amended in 2009 to enhance the penalties when the victim is under 21 years of age and the perpetrator is the victims coach. Of course an ounce of prevention is worth a pound of cure. And, with all the reporting on the Jerry Sandusky sex abuse case,  parents may be asking themselves how someone could get away with what Sandusky reportedly did, and for so long.

Here are two relatively simple things organizations can do to minimize opportunities for predatory behavior.

1.    The Two Adult Rule: Organizations should adopt a rule requiring that a coach is never alone with a child. This rule protects both the athlete and the coach. If the coach is never alone with a child then inappropriate behavior is much more difficult to allege. Private or close practices shouldn't be allowed. If a coach wants to exclude you from practice, ask why.

2.    Background checks:  These are important but not fool-proof. Sports league should perform background checks of every person over the age of 17 who work with or in the vicinity of children. References should be checked, and the club should engage in ongoing monitoring and evaluation. In cases where a coach travels out of town with young athletes, more extensive background checks should be performed. Background checks need to access a national data base utilizing multiple criminal record sources, as many predators try to become coaches outside the state where they lived. 

And here are two simple things you can do.

In Oregon, No Drinking During DUI Diversion

By: Jennifer Robins, Oregon DUI Attorney

Often time, client who are considering entering diversion on an Oregon DUI charge ask me, “can I still drink while I am on diversion?”  Until recently, my answer would have been yes, with exceptions.

Oregon’s former DUII Diversion laws generally prohibited consumption of alcohol in two instances. First, no alcohol in conjunction with operation of a motor vehicle. And second, no use of alcohol if your treatment program required abstinence. Otherwise, I advised clients that it wasn’t a violation of the Oregon diversion to consume alcohol during diversion.

However Oregon House Bill 2103, enacted June 23, 2011, now totally prohibits the use of alcohol during the entirety of the DUII Diversion program.  This means anyone who enters the diversion program will be prohibited from participating in a champagne toast during a wedding, enjoying a beer during a backyard BBQ, or having a glass of wine during a nice dinner out. 

House Bill 2103 applies to anyone who enters the diversion program after the June 23 date, whether or not the incident date was before June 23.

The consequences for violating this provision of the new law are severe, including revocation from the diversion program, jail time, a lengthy license suspension and mandatory fines totaling well over $1,000.00.  Anyone who is facing a charge of driving under the influence of intoxicants should consult with an attorney who is familiar with the recent changes in DUII law and be fully advised.  

 

Oregon DUI Diversion For Armed Forces Defendants

By: Jennifer Robins, Oregon DUI Attorney

Oregon’s DUII Diversion program generally allows someone charged with their first DUII to complete a course of treatment (among other requirements) and, if done so successfully, to have the criminal charge dismissed.  Diversion is only a year long program that allows for one six month extension.

Until recently, active members of the United States Military have either been denied entry into diversion, or have been revoked from the diversion program, because  they were required to serve tours overseas, affecting their ability to complete the diversion program within 12 or 18 months.

Oregon House Bill 2702 has eliminated this perceived discrimination against active duty military members in two ways:

1. Active duty service members are no longer denied entry into diversion, simply because they are facing deployment overseas and;
2. Active duty service members will be allowed extensions or stays in order to complete treatment requirements.

The new Oregon DUI law also allows active duty service members to complete treatment during their tour overseas if there is a comparable treatment program to the program that would normally be completed in the United States.  There are also provisions allowing service members to appear at certain court hearings through their attorney or via telephone or other telecommunication devices, if possible.

If you are active duty military and are charged with a DUII, please contact our office for a free 15 minute phone consultation with an experienced Oregon DUI Attorney. 

These changes in DUII Diversion laws are important and if you're in the armed forces, they may greatly effect your criminal and driving record.

 

Measure 73 - New Oregon DUII Laws

By: Robert Harris, Harris Law Firm

Oregon voters approved Measure 73 this week. Measure 73 changes Oregon criminal law for driving under the influence of inoxicants (DUII) and for certain sex crimes. Under Measure 73 certain repeat sex offenders may be subject to a 300 month minimum sentence. And third time DUII offenders will face minimum jail of 90 days. And, the DUII is a felony  if it's the offender's third DUII offense in the prior ten years.

I just want to address the DUII portion of Measure 73 here.

Justice: United States of America vs. William Reuhle

By: Robert Harris

For anyone who doesn't worry about the danger of handing too much power to prosecutors, or who wonders about the need for independent and effective judges or the separation of powers, the transcript of the ruling by the Federal District Court Judge in the case of United States of America vs. William J. Ruehle is a must read. Download Ruehle opinion

The judge in this case, Judge Cormac J. Carney, is no soft on crime liberal. He was nominated by George Bush to the Federal Bench in 2003. Enough said, the transcript speaks for itself.