How To Edit

If you can see this, you can edit almost any page on this site. All you have to do to get started is click an edit button. You can click the edit button to the right of each section. Or you can click the edit button toward the top of the page (between Read and View History) to edit the entire page. If you're new to editing, you should probably edit an individual section, rather than the whole page. If the page is new (and therefore, there aren't any sections), then you will need to use the edit button at the top of the page.

Click "edit" on any section of this page to see what it looks like in edit mode.

Once you've created your content and made your changes, make sure to click the words "Save page" at the bottom of the page. If you don't do that then your editing will not be saved. If you screw something up and you want to revert to a previous incarnation of the page, you can always do that through the "View history" section up at the top next to the Edit button.

To create a section that automatically appears in the table of contents, put two equal signs around a word or phrase. At least 4 sections are needed to create the table of contents.

Subsections are created by putting additional equal signs around a word or phrase. Subsections are individually editable, but they don't appear in the table of contents.

Three apostrophes around a word or phrase makes it Bold. You can also just cursor over the word or phrase and click the "B" for Bold icon that appears if you're in edit mode.

Two apostrophes around a word or phrase makes it Italicized. You can also just cursor over the word or phrase and click the "I" for Italics icon that appears in edit mode.

• An asterisk creates a bullet point.
  • Two asterisks creates an indented bullet point.
    • Three asterisks creates a further indented bullet point.

A colon at the beginning of the line creates an indented line.

Linking to an External Site

A link is created by putting brackets around the URL and whatever you want to appear on the page as the link. This is the format: [URL words that appear as a link]. For example, this is a link to OCDLA: Oregon Criminal Defense Lawyers Association. Anything after the space following the URL and before the closed bracket will appear as the link on the page.

Linking to a Page Within the Library

If you want to link to another page on this site, you can either copy the URL and paste it in as you learned in the last paragraph. Like this: Search and Seizure. Or you can do it this way: Search and Seizure. The first part of the link uses the word(s) that come after "legalpages/" in the URL. The second part is the word or phrase that you want to appear on the page as the link.

To get a file from your computer onto the website, go to the "Upload File" link at the bottom of the left hand column. Click "Browse" to find the file and "Upload file" to upload it.

PDF: If the file is a PDF, click onto the link to the PDF that now appears on the page. Copy that URL and create a link to that page as it says to do under Links above.

Word: If the file is a .doc Word document, then copy the URL from the page that you're viewing right after you've uploaded it. Use the URL you've copied to create a link as it says to do under Links above. You can't create a URL to view the Word document because the user will his or her Word program on his computer to download the document. So you just need to get them to the point where they can download it.

Images: If the image on your computer is a .png, .jpg, .gif, or .jpeg you can upload it just as you would any other file. Once it has been uploaded you may insert it into any page by:

1. typing two right-facing brackets ,
2. followed by the file name that appears with the uploaded file (e.g. File:DNA Structure+Key+Labelled pn NoBB.png)
3. and then two left-facing brackets.

Example:

• However, this will display the image at its maximum size, which will probably be too large or not formatted to your liking. To change the image's appearance you must add a couple steps between Steps 2 and 3.

• This is done by typing | (by holding shift and pressing the button right above the enter key) followed by commands such as "thumb" if you want it to be a thumbnail, or "right" if you want the image to be on the right-hand side of the page.
• Some useful commands are: |border, |thumb, |#px (place a desired number where the # is to resize the image), |frame, |caption (replace the word caption with whatever text you would like to appear underneath the image). |left, |center, |right

Example:

For more complex formatting information See Mediawiki Images

1. To add a table to a given page you first type:

• To add extra styling you may type border="#" or cellpadding="#' into the first line to give the table thicker lines or slight gaps in between cells. The first two lines would instead look something like this:

2. Then you may add a table header by typing this in the next line:

• Replace the word 'title' with whatever you want each column to be named
• The double exclamation marks separate the columns, so you may add or get rid of columns with these.
• You may also set the column width by adding: scope="col" width="#" ,followed by: | Title, where the # controls the size
• It may look something like this:

• Play Around with the number until you reach the desired size for each column

3. After you are satisfied with the table header each row is filled in like this:

• Replace the word 'content' with what you want to be in that row and column, the || separate columns from left to right
• Rows are added by copying these two lines, below one another like this:

4. To finish the table once everything has been input you must type this into the next line:

The final product, including all possible additions, should look something like this:

Resulting in a table that looks like this:

• For additional formatting capabilities see Mediawiki Tables

At some point, legal pages will be filled with both case summaries and resources like articles, motions, materials, seminars, etc.. Cases and resources should all be placed in the section that is most specific to the case or resource. It is okay to put cases or resources in multiple places. The formatting should look like the "Blood Alcohol Content" section of the DUII page:

• 6/15/2010 | Retrograde Extrapolation | Mike Saltzman
• FST Manuals
• Intoxilyzer 8000 Operator's Guide

Retrograde Extrapolation is Admissible

The Oregon Supreme Court explicitly finds that an expert may project backwards from blood alcohol content at the time of a breath or blood test to the likely blood alcohol content at the time of driving. I.e., testify about the rate of dissipation in what is commonly known as retrograde extrapolation. Allowing such testimony is consistent with the requirement that the state establish .08% BAC or greater because the relevant point in time for the BAC is the time of driving, not the time of the test. In this case, the state used a BAC of .064 plus expert testimony to prove that defendant had a BAC of .08 or more at the time of driving. State v Eumana-Moranchel(2012)

Breath Test Refusal Admissible at Trial Even if Warnings Aren't Understood

When arrested for DUII, a defendant is properly “informed” of the consequences of refusal to take a breath test if the arresting officer complies with the requirement to read the rights and consequences substantially as set out in ORS 813.130. Here, even though the defendant had a “weak” command of the English language and the officer “noticed a language barrier in his communication with the defendant,” the defendant’s refusal was admissible. The state does not have to establish that the defendant fully understood the information. State v Cabanilla (March, 2012)

Warrantless Breath Test – Machuca

The court remands to the trial court to determine whether this is one of the “rare cases” that would require a search warrant prior to a breath test for DUII. The Supreme Court in Machuca set the standard for such a rare case: 'where a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances.” The court suggests that this might be one of those rare cases and gives a hypothetical to illustrate what would clearly be a situation requiring a warrant:

"An officer stops and arrests a motorist for DUII on a highway in a remote area of central or eastern Oregon, miles from the nearest town (and tow truck). The officer cannot transport the suspect to the stationhouse for a breath test until the tow truck arrives to remove the suspect’s vehicle– which will take well over an hour. So it will take at least two hours before the breath test can be administered. Although the officer may be engaged during some of that time (e.g., inventorying the vehicle), there will be a significant amount of time that the officer is not otherwise engaged and is simply waiting for the tow truck. Assume further that therecord establishes that a reasonably objective officer knows that he or she can generally obtain a telephonic warrant in 30 minutes and that, thus, in the hypothetical circumstance, the warrant would be waiting by the time that the officer and suspect arrive at the stationhouse. Under such circumstances, the 'rare case' exception would apply." State v. Martinez-Alvarez, 245 Or App 369 (2011)

Exigent Circumstances – Rare Case per Machuca

Where there was only 58 minutes between DUII arrest and breath test and the testimony established that it would take at least 90 minutes to obtain a warrant, the evidence established that exigent circumstances existed. Stated in the inverse, the evidence did not establish that this is one of the rare cases, referred to in Machuca, in which it would be significantly faster to obtain a warrant than the process used in this case. State v. Amos

Right to Counsel

Oregon law does not require police to ask for a breath test before giving the suspect an opportunity to contact counsel, as long as the suspect knows that a breath test is imminent. Further, an equivocal request for counsel triggers an officer’s duty to ask follow up questions and inform the defendant of his right to counsel only when it appears that the officer intends to remain in the room with the defendant. Finally, the court rejected the idea that leaving the door ajar while the defendant tried to contact counsel did not give him an adequate opportunity for private counsel, since he in fact was not able to reach his lawyer. State v. Robinson , 244 Or App 368 (2011)

Intoxilyzer Malfunction – When a Card is Complete

An intoxilyzer printout is complete for the purposes of ORS 813.160(1)(b) and OAR 257-030-0070(4) if it reflects results for all the testing steps, even if the card has problems printing. An officer is not required to follow the protocol for incomplete cards solely because there is a printing issue. State v. Roberts, 241 Or App 489 (2011)

Opportunity to Seek Advice of Counsel

The state concedes that the trial court erred in denying defendant’s motion to suppress a breath test where the officer did not give defendant a reasonable opportunity to consult counsel before administering that test. Reversed and remanded. State v. Hyatt (per curiam)

Breath test refusal – Definition of refusal

“Refusal” just means non-submission – an unequivocal refusal isn’t needed. Here, the officer explained to the defendant the rights and consequences related to breath tests, answered her questions, and offered to let her call someone for advice. She expressed confusion and did not unequivocally refuse the test, after two offers. This was enough to cite her for refusal. “A person’s failure to promptly agree to take a breath test constitutes a refusal.” Fitzpatrick v. DMV , 236 Or App 113 (2010)

Breath test refusal – Right to consult attorney

If the arresting officer knows that the defendant needs assistance in calling an attorney, that assistance must be provided. Defendant was given 15 minutes to call an attorney, but needed glasses to read the phone book, and the officer did not assist. Remanded for consideration of the factual question of whether the officer was told about the need for glasses before or after the 15 minute period. State v. Roesler , 235 Or App 547 (2010)

Advice of Right to Privacy

An officer only needs to advise an arrested person of the right to talk in private with an attorney if the person asks to talk to an attorney. No invocation, no advice. In this case, defendant was told he could call anyone he wanted, including an attorney. But he wasn’t told that during a conversation with an attorney he would be given privacy. The defendant didn’t invoke any rights, though he did call his girlfriend, a friend and his employer. Then he blew a .21. Which was admissible. State v. Mendoza , 234 Or App 366 (2010)

Breath Test Refusal - License Suspension

“‘Anything substantially short of an unqualified, unequivocal assent to an officer’s request that the arrested motorist take the [breath] test constitutes a refusal to do so.’” The suspended person argued here that the officer didn’t follow the proper procedure for declaring a refusal. The court finds such procedure irrelevant where the person is given the chance to take the breath test and doesn’t do so. In this case, the person responded to the officer’s request to take a breath test thusly: “No, you’re an asshole. Put that in your report.” Tidwell v. DMV

Illegal Consent for Breath Test

Where there is probable cause and exigency, a breath test is admissible. This is true even if consent for the test was a product of unlawful police actions. Consent is unnecessary where there’s an exception to the warrant requirement. Since exigent circumstances exist because of the “evanescent nature” of alcohol in the body, that means that neither consent nor a warrant is necessary for a breath test where there is PC to arrest for DUII. State v. Hays

BAC is Ordinarily an Exigent Circumstance

“We therefore declare that, for purposes of the Oregon Constitution, the evanescent nature of a suspect’s blood alcohol content is an exigent circumstance that will ordinarily permit a warrantless blood draw of the kind taken here. We do so, however, understanding that particular facts may show, in the rare case, that a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances. We anticipate that only in those rare cases will a warrantless blood draw be unconstitutional.” Because the court finds an exigency exception to the warrant requirement, it does not address the appellate court’s ruling that defendant’s consent was involuntary because he was told of the adverse legal consequences of refusing, as set out in the implied consent law. State v. Machuca

Breath Test Administration

The trial judge should not have suppressed a DUII breath test solely because the cop did not use his own personal id number for the breathalizer. The cop is required to possess a permit and PIN but “possess” means “own”, not have on his possession at that moment.