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{{DISPLAYTITLE:DUII Release Conditions -- The New Prohibition}}
 
{{DISPLAYTITLE:DUII Release Conditions -- The New Prohibition}}
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 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.
+
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 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 arrestees does not pass muster.

Revision as of 12:27, 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 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 arrestees does not pass muster.

Special Jury Instructions for Kidnapping

by: Ryan Scott • January 12, 2024 • no comments

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 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.

A Common Mistake Among Minor Felony Attorneys

by: Ryan Scott • December 10, 2023 • no comments

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 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.

Unreasonable Self-Defense

by: Ryan Scott • December 10, 2023 • no comments

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 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.

Threatening to Go And Get a Gun: Is That UUW?

by: Ryan Scott • December 5, 2023 • no comments

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 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.

Pointing a Firearm is Not Use of Deadly Force

by: Ryan Scott • December 4, 2023 • no comments

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 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.

It usually takes awhile before issues of first impression start winning. This is the exception.

by: Ryan Scott • November 15, 2023 • no comments

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 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.

A Ballistics Test is a Search

by: Ryan Scott • November 10, 2023 • no comments

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 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.

The Portland City Code and Unlawful Possession of a Firearm

by: Ryan Scott • November 5, 2023 • no comments

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 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.

The Mens Rea for Felony Murder of a Child

by: Ryan Scott • November 4, 2023 • no comments

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 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.

The Scope of OEC 803(18)(a)(b)

by: Ryan Scott • November 4, 2023 • no comments

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 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.

The Brown-Poston Demurrer

by: Ryan Scott • September 28, 2023 • no comments

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 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.

Updated Argument on Gun Minimum

by: Ryan Scott • September 24, 2023 • no comments

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 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.

Upward Departures

by: Ryan Scott • September 13, 2023 • no comments

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 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.

Can the Judge Pick and Choose Which Count To Impose the Gun Minimum On?

by: Ryan Scott • August 16, 2023 • no comments

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 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 Can Brown Do for You?

by: Ryan Scott • August 16, 2023 • no comments

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 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.

Third Proportionality Post in a Row

by: Ryan Scott • August 3, 2023 • no comments

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 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.

Proportionality Clause and Sentences Consecutive to Murder

by: Ryan Scott • August 2, 2023 • no comments

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 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.

Proportionality Clause and Sex Abuse II Based on Age

by: Ryan Scott • August 2, 2023 • no comments

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 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.

Attempted DCS Sentencing

by: Ryan Scott • October 24, 2021 • no comments

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 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.

Incorporating the Grand Jury Clause from the Bill of Rights to State Prosecutions

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

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 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.

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