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{{DISPLAYTITLE:DUII Release Conditions -- The New Prohibition}}
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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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Revision as of 13:18, June 12, 2013

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 arrestees 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 arrestees 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 arrestees 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 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.

What kind of person makes false rape accusations?

by: Ryan Scott • September 17, 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.

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

by: Ryan Scott • June 22, 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.

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

by: Ryan Scott • April 24, 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.

More upward departure challenges

by: Ryan Scott • August 30, 2017 • 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.

Upward Departure Challenges

by: Ryan Scott • August 29, 2017 • 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 Email Preservation Letters Violate the 4th Amendment?

by: Ryan Scott • October 31, 2016 • 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.

Another Reason "On Supervision" Shouldn't Merit a Durational Departure

by: Ryan Scott • September 5, 2016 • 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.

Suddenly Relevant and Significant Opinion . . . .from 1973

by: Ryan • March 31, 2016 • 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.

Shaken Baby Science, Part V

by: Ryan • March 24, 2015 • 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.

Voluntariness of a Shaken Baby Confession

by: Ryan • May 1, 2014 • 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.

As-Applied Challenge to Felon in Possession (9th Circuit)

by: Ryan • November 19, 2013 • 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.

Is Third-Party Standing Necessary for a Defendant to Assert a 17 Year Old's Right to Intercourse?

by: Ryan • August 8, 2012 • 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.

Forgotten Favorites: Do 17 year olds have a constitutional right to intercourse?

by: Ryan • August 5, 2012 • 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.

Is the Rule of Lenity Rooted in the Due Process Clause?

by: Ryan • June 25, 2012 • 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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