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

Does effective representation require defense attorneys to know where the law is going, not just where it is?

by: Ryan Scott • November 14, 2020 • 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 arrestees does not pass muster.

Resources for Defenders Responding to the COVID-19 Crisis in Oregon

by: Admin@ocdla.org • March 27, 2020 • 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 arrestees does not pass muster.

3 Things Attorneys Should Know About the "Firearm Minimum"

by: Ryan Scott • December 30, 2019 • one comment

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.

The very short version of the DCS-PCS merger argument

by: Ryan Scott • December 13, 2019 • 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 arrestees does not pass muster.

Increasing the Chances of Reversal

by: Ryan Scott • December 1, 2019 • 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 arrestees does not pass muster.

The Court of Appeals Misses an Easy One

by: Ryan Scott • September 22, 2019 • 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 arrestees does not pass muster.

A Sentencing Argument for DCS- Super-Substantial Quantity (and Super-Super-Substantial Quantity)

by: Ryan Scott • September 18, 2019 • 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 arrestees does not pass muster.

Juries are routinely misinstructed on the elements of theft, assault, criminal mistreatment and criminal mischief

by: Ryan Scott • July 17, 2019 • 2 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 arrestees does not pass muster.

4th Amendment Issues Regarding Property-in-Property

by: Ryan Scott • July 13, 2019 • 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 arrestees does not pass muster.

Mirror Universe: Why the Legislature May Spend the Money on a Unanimity Ballot Measure and Defenders of Non-Unanimous Verdicts Will Vote For It

by: Ryan Scott • July 4, 2019 • 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 arrestees does not pass muster.

Should prosecutors object to a defendant's request for unanimous juries?

by: Ryan Scott • April 8, 2019 • 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 arrestees does not pass muster.

How the prosecutor can seek to double the presumptive sentence of Oregon felonies and why it may be unconstitutional

by: Ryan Scott • March 24, 2019 • 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 arrestees does not pass muster.

Oregon Appellate Court--March 6, 2019

by: Rankin Johnson • March 12, 2019 • 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 arrestees does not pass muster.

Oregon Appellate Court--December 27, 2018

by: Rankin Johnson • January 8, 2019 • 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 arrestees does not pass muster.

Improper Joinder Demurrer: What Issues Remain?

by: Ryan Scott • December 14, 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 arrestees does not pass muster.

Do DCS and PCS now merge?

by: Ryan Scott • December 10, 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 arrestees 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 arrestees does not pass muster.

Using profile evidence as substantive proof of guilt

by: Ryan Scott • November 19, 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 arrestees does not pass muster.

Oregon Appellate Court--September 12, 2018

by: Rankin Johnson • September 20, 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 arrestees does not pass muster.

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