A Book from the Library of Defense
Namespaces
Variants
Actions

Difference between revisions of "Blog:Main"

From OCDLA Library of Defense
Jump to: navigation, search
(DUII Release Conditions -- The New Prohibition?)
Line 1: Line 1:
 
{{DISPLAYTITLE:Blog}}
 
{{DISPLAYTITLE:Blog}}
 +
This morning Judge Henry Kantor was handling Multnomah County misdemeanor arraignments in JC4 (Justice Center courtroom #4). Most Multnomah County judges at DUII arraignments will say, "standard DUII release conditions." That phrase traditionally means (1) "No Driving without a valid license and insurance," and (2) "No use of any intoxicant when operating a motor vehicle." A minority of judges had replaced item (2) with "No possession or use of any intoxicant." The word "intoxicant" is problematic and worthy of its own post (what about prescription medications? Prescription pain-killers?), but here I'll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII. As the question implies, it of course is not. I was not expecting Judge Kantor to have joined forces with the Prohibition crowd, but he had (No drinking, "and that includes July 4th!" His Honor iterated). I made a brief record relating ''Sexson v. Merten'', 291 Or 441 (1981), a case that required -- for a Prohibition condition to be imposed -- "'''an alcohol problem''', as would appear from the record" in the individual case. 291 Or at 450. Here's the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine '''whether''' your client has an alcohol problem or not. In my case today, it was not a battle worth taking up on mandamus. So what is the right case? It should (a) be DUII Diversion eligible; (b) involve a relatively low breath test, .05-.07% BAC is ideal, but even up to .14% would be OK -- at .14% and under evaluators do not presume an alcohol problem. In any event, it is virtually '''always''' worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will back down after a discussion of ''Sexson'' and the exculpatory facts in your particular DUII case (first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario [Oregon State Bar function?]), and impose a less onerous condition. I'd suggest: "No use of alcohol in connection with the use of a vehicle." Finally, I should note that the release statutes underlying ''Sexson'' have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation -- but I don't believe those amendments affect the logic of ''Sexson'': to impose a Prohibition condition, you've got to have a demonstrated alcohol problem based on the facts of the case or the defendant's history. In other words, blanket Prohibition for all first-time DUII arrestee's does not pass muster.

Revision as of 12:24, June 12, 2013

This morning Judge Henry Kantor was handling Multnomah County misdemeanor arraignments in JC4 (Justice Center courtroom #4). Most Multnomah County judges at DUII arraignments will say, "standard DUII release conditions." That phrase traditionally means (1) "No Driving without a valid license and insurance," and (2) "No use of any intoxicant when operating a motor vehicle." A minority of judges had replaced item (2) with "No possession or use of any intoxicant." The word "intoxicant" is problematic and worthy of its own post (what about prescription medications? Prescription pain-killers?), but here I'll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII. As the question implies, it of course is not. I was not expecting Judge Kantor to have joined forces with the Prohibition crowd, but he had (No drinking, "and that includes July 4th!" His Honor iterated). I made a brief record relating Sexson v. Merten, 291 Or 441 (1981), a case that required -- for a Prohibition condition to be imposed -- "an alcohol problem, as would appear from the record" in the individual case. 291 Or at 450. Here's the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine whether your client has an alcohol problem or not. In my case today, it was not a battle worth taking up on mandamus. So what is the right case? It should (a) be DUII Diversion eligible; (b) involve a relatively low breath test, .05-.07% BAC is ideal, but even up to .14% would be OK -- at .14% and under evaluators do not presume an alcohol problem. In any event, it is virtually always worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will back down after a discussion of Sexson and the exculpatory facts in your particular DUII case (first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario [Oregon State Bar function?]), and impose a less onerous condition. I'd suggest: "No use of alcohol in connection with the use of a vehicle." Finally, I should note that the release statutes underlying Sexson have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation -- but I don't believe those amendments affect the logic of Sexson: to impose a Prohibition condition, you've got to have a demonstrated alcohol problem based on the facts of the case or the defendant's history. In other words, blanket Prohibition for all first-time DUII arrestee's does not pass muster.

What kind of person makes false rape accusations?

by: Ryan Scott • September 17, 2018 • no comments

"Study after study shows ex-prisoners would be better off without intense supervision"

by: Ryan Scott • July 10, 2018 • no comments

Why search warrants that were fine under Mansor (COA) may not be fine under Mansor (OSC)

by: Ryan Scott • July 3, 2018 • no comments

Oregon Supreme Court Affirms Mansor But Significant Difference in Approach than COA Took

by: Ryan Scott • June 29, 2018 • no comments

Post-Carpenter, What's the Status of the 3rd-Party Doctrine?

by: Ryan Scott • June 22, 2018 • no comments

Warrant needed for suspect's historical cell-site location data

by: Ryan Scott • June 22, 2018 • no comments

A jury selection irregularity

by: Ryan Scott • June 6, 2018 • no comments

New SCOTUS opinion on auto exception

by: Ryan Scott • May 29, 2018 • no comments

Oregon Supreme Court - April 26, 2018

by: Rankin Johnson IV • May 15, 2018 • no comments

Significant Forensic Cell Phone Search at Border

by: Ryan Scott • May 14, 2018 • no comments

Key Fob search opinion

by: Ryan Scott • May 14, 2018 • no comments

Rental Car. Driving not on rental agreement. Reasonable expecation of Privacy?

by: Ryan Scott • May 14, 2018 • no comments

When the Lawyer Concedes Guilt Over Defendant's Objection

by: Ryan Scott • May 14, 2018 • no comments

Race and Traffic Stops: A Remarkable (Unpublished) Federal Opinion

by: Ryan Scott • April 26, 2018 • no comments

Warrantless Seizure of Vehicle's Black Box: 4th Amendment Violated

by: Ryan Scott • April 24, 2018 • no comments

Foundation, Foundation, Foundation

by: Ryan Scott • April 24, 2018 • no comments

A new way of looking at DCS within 1000 feet of a school

by: Ryan Scott • April 9, 2018 • no comments

Oregon Supreme Court - March 15, 2018

by: Rankin Johnson IV • March 16, 2018 • no comments

Cross-Enforcement of the 4th Amendment

by: Ryan Scott • March 15, 2018 • no comments

Applying the right mental state to the material elements: a quick summary and something you probably didn't know

by: Ryan Scott • March 11, 2018 • one comment

« newest ‹ newer 20 ... oldest »