Straight Talking on The Law

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.

Oregon Medical Marijuana Program and PTSD

 

By: Robert Harris, Harris Law Firm

Post Traumatic Stress Disorder - PTSD - can be caused  by any traumatic event and to anyone. It is particularly common among our military members. 

Now, Oregon medical marijauna advocates are laying the groundwork to exand the use of medical marijuana to people who suffer from PTSD. A recent article in the Oregonian discusses the movement to get PTSD approved as one of he qualifying conditions for medical marijuana.

Washington County law enforcement has been particularly active in prosecuting people whom it believes  have crossed the line between lawful medical marijuana use, cultivation and distribution, and unlawfully selling marijuana. So for Washington county residents who suffer from PTSD, the expansion of the medical marijuana laws could be a godsend.

Successfully Negotiating An Amicable Divorce

By: Robert Harris, Portland Divorce Attorney

I was going to title this article: Divorce in Oregon: Good Cop, Bad Cop.

I often tell my clients, let me be the bad guy. The naysayer, the person that brings up the issues that need to be addressed. Everyone thinks lawyers are difficult anyway.

You can be the good cop. The conciliator, the person who puts the kids interest above all else and just wants to be fair.

A successful negotiation of an amicable end of a marriage doesn't mean you give up all your rights, or have to be treated unfairly. It can mean however, letting your lawyer be the person who raises issues in your defense.

I just read an article about mistakes people make when trying to reach an amicable divorce settlement. And it's true. Most people feel bad about divorce. Especially when there are kids involved. They want to be fair, and sometimes they bend over backwards to demands from their spouse that are unreasonable but deeply emotionally held, and end up putting themselves in a real bad situation.

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.

Avoiding Oregon Probate Where Home is Main Asset

By: Robert Harris, Oregon Estate Planning Attorney

As of January, 2012, Oregonians can execute a Transfer of Death Deed (TODD). This will make a big difference in estate planning for those whose main asset is the family home.

One of the unfortunate realities is that previously Oregon Probate Laws often required a full probate in these circumstances. While Oregon Small Estate procedures have always been available for people with modest amounts of property, the small estate affidavit process is not available if the deceased owned property valued at more than $90,000.  And today, most family homes are worth much more.

So when I had a client who wanted a simple estate plan, where the main asset was the family home, I had to tell them that they could do a living trust (at several times the cost of a simple will), or they could put their kids on their home deeds as a right of survivorship, or they could plan on having their estate probated. 

Many people choose to put their children or heirs on their deeds. But by doing this, the children or heirs obtained  a current interest in the property. That creates potential problems with creditors, financing, and with dealing with any change of heart by the client.  

The TODD solves many of those issues. A TODD does not transfer a current interest in the property to your children heirs. It will only become effective on death. So the owner of the property retains all ownership rights, including the right to revoke the TODD if you have a change of heart. 

The TODD is a great new device that can be used for individuals with small estates. We can do a simple will, keep all the property in the clients name, and after death since the real estate passes on death, the heirs can simply use the small estate procedures for any personal property that needs to be distributed instead of paying for a full probate.

Distressed Property Consultations Now On Line Strategic Default? Foreclosure? Short Sale?

By: Robert Harris, Oregon Real Estate Attorney

If your home is underwater you can find plenty of information about Oregon foreclosure laws and strategic default options online. Some good, some not so good. But even if you figure out the law you still have to apply that to your specific situation.  

Because of the growing demand for consultations and document review from people considering alternatives to paying for a home that is underwater, we've set up an expedited flat fee process for distressed property owners so they can  get straight answers from an experienced Oregon Real Estate Attorney.

By using our law firm's advantages of excellent technology and experienced attorneys, Harris Law Firm is leading the way in assisting clients throughout the state of Oregon efficiently and effectively.

Here's how our distressed property review works:

Don't Pay for Oregon Family Law Forms That You Can Get For Free

By: Amy Velazquez,

Family Law Lawyer

Your most important asset isn't your car or your home. It's your family. You want to keep them safe and secure and healthy. That's why it's important for you to retain a qualified family law attorney whenever you have the misfortune to be involved in a dispute regarding Child Custody, Parenting Time, Legal Separation in Oregon, Alimony , or any other serious Oregon Family Law issue.

That being said, we understand that some people can't afford an attorney. In those cases, we suggest a non profit  firm that accepts clients on a sliding scale. You can also call the Oregon State Bar and ask about the modest means program for limited income clients. 

If you do chose to represent yourself, for whatever reason, you should think twice before you purchase legal forms from a "big box" store, or from some person who calls themselves a paralegal on craigslist, or from some generic website you found on the internet.

Strategic Default Update

What the Banks Are Up To:

By: Robert Harris

I talk to five to ten people per week on what some people call strategic default. Some have one mortgage, others two, or even three.

Some took their second mortgages out at the same time as their first mortgage, and from the same lender (an 80/20 loan). Some have quit paying on one mortgage, some on all their loans. Each situation is different, and you need to talk your sitaution over with a qualified and experienced lawyer to get advice that's correct for your situation.

However, I have seen a couple of new twists and tactics from the banks.