DUII Release Conditions -- The New Prohibition
This morning Judge Henry Kantor was handling Multnomah County misdemeanor arraignments in JC4 (Justice Center courtroom #4). Most Multnomah County judges at DUII arraignments will say, "standard DUII release conditions." That phrase traditionally means (1) "No Driving without a valid license and insurance," and (2) "No use of any intoxicant when operating a motor vehicle." A minority of judges had replaced item (2) with "No possession or use of any intoxicant." The word "intoxicant" is problematic and worthy of its own post (what about prescription medications? prescription pain-killers?), but here I'll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII. As the question implies, it of course is not. I made a brief record relating Sexson v. Merten, 291 Or 441 (1981), a case that required -- for a Prohibition condition to be imposed -- "an alcohol problem, as would appear from the record" in the individual case. 291 Or at 450. Here's the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine whether your client has an alcohol problem or not. In my case today, it was not a battle worth taking up on mandamus. So what is the right case? It should (a) be DUII Diversion eligible; (b) involve a relatively low breath test, .05-.07% BAC is ideal, but even up to .14% would be OK -- at .14% and under evaluators do not presume an alcohol problem. In any event, it is virtually always worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will back down after a discussion of Sexson and the exculpatory facts in your particular DUII case (first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario [Oregon State Bar function?]), and impose a less onerous condition. I'd suggest: "No use of alcohol in connection with the use of a vehicle." Finally, I should note that the release statutes underlying Sexson have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation -- but I don't believe those amendments affect the logic of Sexson: to impose a Prohibition condition, you've got to have a demonstrated alcohol problem based on the facts of the case or the defendant's history. In other words, blanket Prohibition for all first-time DUII arrestee's does not pass muster.
A new way of looking at DCS within 1000 feet of a school
by: Ryan Scott • April 9, 2018 • no comments
This morning Judge Henry Kantor was handling Multnomah County misdemeanor arraignments in JC4 (Justice Center courtroom #4). Most Multnomah County judges at DUII arraignments will say, "standard DUII release conditions." That phrase traditionally means (1) "No Driving without a valid license and insurance," and (2) "No use of any intoxicant when operating a motor vehicle." A minority of judges had replaced item (2) with "No possession or use of any intoxicant." The word "intoxicant" is problematic and worthy of its own post (what about prescription medications? prescription pain-killers?), but here I'll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII. As the question implies, it of course is not. I made a brief record relating Sexson v. Merten, 291 Or 441 (1981), a case that required -- for a Prohibition condition to be imposed -- "an alcohol problem, as would appear from the record" in the individual case. 291 Or at 450. Here's the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine whether your client has an alcohol problem or not. In my case today, it was not a battle worth taking up on mandamus. So what is the right case? It should (a) be DUII Diversion eligible; (b) involve a relatively low breath test, .05-.07% BAC is ideal, but even up to .14% would be OK -- at .14% and under evaluators do not presume an alcohol problem. In any event, it is virtually always worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will back down after a discussion of Sexson and the exculpatory facts in your particular DUII case (first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario [Oregon State Bar function?]), and impose a less onerous condition. I'd suggest: "No use of alcohol in connection with the use of a vehicle." Finally, I should note that the release statutes underlying Sexson have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation -- but I don't believe those amendments affect the logic of Sexson: to impose a Prohibition condition, you've got to have a demonstrated alcohol problem based on the facts of the case or the defendant's history. In other words, blanket Prohibition for all first-time DUII arrestee's does not pass muster.
Oregon Supreme Court - March 15, 2018
by: Rankin Johnson IV • March 16, 2018 • no comments
This morning Judge Henry Kantor was handling Multnomah County misdemeanor arraignments in JC4 (Justice Center courtroom #4). Most Multnomah County judges at DUII arraignments will say, "standard DUII release conditions." That phrase traditionally means (1) "No Driving without a valid license and insurance," and (2) "No use of any intoxicant when operating a motor vehicle." A minority of judges had replaced item (2) with "No possession or use of any intoxicant." The word "intoxicant" is problematic and worthy of its own post (what about prescription medications? prescription pain-killers?), but here I'll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII. As the question implies, it of course is not. I made a brief record relating Sexson v. Merten, 291 Or 441 (1981), a case that required -- for a Prohibition condition to be imposed -- "an alcohol problem, as would appear from the record" in the individual case. 291 Or at 450. Here's the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine whether your client has an alcohol problem or not. In my case today, it was not a battle worth taking up on mandamus. So what is the right case? It should (a) be DUII Diversion eligible; (b) involve a relatively low breath test, .05-.07% BAC is ideal, but even up to .14% would be OK -- at .14% and under evaluators do not presume an alcohol problem. In any event, it is virtually always worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will back down after a discussion of Sexson and the exculpatory facts in your particular DUII case (first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario [Oregon State Bar function?]), and impose a less onerous condition. I'd suggest: "No use of alcohol in connection with the use of a vehicle." Finally, I should note that the release statutes underlying Sexson have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation -- but I don't believe those amendments affect the logic of Sexson: to impose a Prohibition condition, you've got to have a demonstrated alcohol problem based on the facts of the case or the defendant's history. In other words, blanket Prohibition for all first-time DUII arrestee's does not pass muster.
Cross-Enforcement of the 4th Amendment
by: Ryan Scott • March 15, 2018 • no comments
This morning Judge Henry Kantor was handling Multnomah County misdemeanor arraignments in JC4 (Justice Center courtroom #4). Most Multnomah County judges at DUII arraignments will say, "standard DUII release conditions." That phrase traditionally means (1) "No Driving without a valid license and insurance," and (2) "No use of any intoxicant when operating a motor vehicle." A minority of judges had replaced item (2) with "No possession or use of any intoxicant." The word "intoxicant" is problematic and worthy of its own post (what about prescription medications? prescription pain-killers?), but here I'll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII. As the question implies, it of course is not. I made a brief record relating Sexson v. Merten, 291 Or 441 (1981), a case that required -- for a Prohibition condition to be imposed -- "an alcohol problem, as would appear from the record" in the individual case. 291 Or at 450. Here's the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine whether your client has an alcohol problem or not. In my case today, it was not a battle worth taking up on mandamus. So what is the right case? It should (a) be DUII Diversion eligible; (b) involve a relatively low breath test, .05-.07% BAC is ideal, but even up to .14% would be OK -- at .14% and under evaluators do not presume an alcohol problem. In any event, it is virtually always worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will back down after a discussion of Sexson and the exculpatory facts in your particular DUII case (first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario [Oregon State Bar function?]), and impose a less onerous condition. I'd suggest: "No use of alcohol in connection with the use of a vehicle." Finally, I should note that the release statutes underlying Sexson have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation -- but I don't believe those amendments affect the logic of Sexson: to impose a Prohibition condition, you've got to have a demonstrated alcohol problem based on the facts of the case or the defendant's history. In other words, blanket Prohibition for all first-time DUII arrestee's does not pass muster.
Applying the right mental state to the material elements: a quick summary and something you probably didn't know
by: Ryan Scott • March 11, 2018 • no comments
This morning Judge Henry Kantor was handling Multnomah County misdemeanor arraignments in JC4 (Justice Center courtroom #4). Most Multnomah County judges at DUII arraignments will say, "standard DUII release conditions." That phrase traditionally means (1) "No Driving without a valid license and insurance," and (2) "No use of any intoxicant when operating a motor vehicle." A minority of judges had replaced item (2) with "No possession or use of any intoxicant." The word "intoxicant" is problematic and worthy of its own post (what about prescription medications? prescription pain-killers?), but here I'll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII. As the question implies, it of course is not. I made a brief record relating Sexson v. Merten, 291 Or 441 (1981), a case that required -- for a Prohibition condition to be imposed -- "an alcohol problem, as would appear from the record" in the individual case. 291 Or at 450. Here's the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine whether your client has an alcohol problem or not. In my case today, it was not a battle worth taking up on mandamus. So what is the right case? It should (a) be DUII Diversion eligible; (b) involve a relatively low breath test, .05-.07% BAC is ideal, but even up to .14% would be OK -- at .14% and under evaluators do not presume an alcohol problem. In any event, it is virtually always worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will back down after a discussion of Sexson and the exculpatory facts in your particular DUII case (first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario [Oregon State Bar function?]), and impose a less onerous condition. I'd suggest: "No use of alcohol in connection with the use of a vehicle." Finally, I should note that the release statutes underlying Sexson have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation -- but I don't believe those amendments affect the logic of Sexson: to impose a Prohibition condition, you've got to have a demonstrated alcohol problem based on the facts of the case or the defendant's history. In other words, blanket Prohibition for all first-time DUII arrestee's does not pass muster.
Notable Petition for Cert: Can the state seize internet traffic info without PC?
by: Ryan Scott • January 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 arrestee's does not pass muster.
Cell Phones, Residences and Search Warrants
by: Ryan Scott • January 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 arrestee's does not pass muster.
Orin Kerr: If Carpenter is Going to Win, This is How the Case Should Be Decided
by: Ryan Scott • January 2, 2018 • no comments
This morning Judge Henry Kantor was handling Multnomah County misdemeanor arraignments in JC4 (Justice Center courtroom #4). Most Multnomah County judges at DUII arraignments will say, "standard DUII release conditions." That phrase traditionally means (1) "No Driving without a valid license and insurance," and (2) "No use of any intoxicant when operating a motor vehicle." A minority of judges had replaced item (2) with "No possession or use of any intoxicant." The word "intoxicant" is problematic and worthy of its own post (what about prescription medications? prescription pain-killers?), but here I'll deal with whether Prohibition is an appropriate release condition for every run-of-the-mill DUII. As the question implies, it of course is not. I made a brief record relating Sexson v. Merten, 291 Or 441 (1981), a case that required -- for a Prohibition condition to be imposed -- "an alcohol problem, as would appear from the record" in the individual case. 291 Or at 450. Here's the rub: not everybody who picks up a DUII has an alcohol problem. In fact, the state has an army of evaluators ready to determine whether your client has an alcohol problem or not. In my case today, it was not a battle worth taking up on mandamus. So what is the right case? It should (a) be DUII Diversion eligible; (b) involve a relatively low breath test, .05-.07% BAC is ideal, but even up to .14% would be OK -- at .14% and under evaluators do not presume an alcohol problem. In any event, it is virtually always worth making a record about. Why? First, someday a client will want to mandamus. Second, some judges will back down after a discussion of Sexson and the exculpatory facts in your particular DUII case (first arrest, never in trouble with the law before, low breath test, coming back from religious observance or other socially acceptable drinking scenario [Oregon State Bar function?]), and impose a less onerous condition. I'd suggest: "No use of alcohol in connection with the use of a vehicle." Finally, I should note that the release statutes underlying Sexson have been amended since 1981 to include more explicit protection for victims as part of the victim rights rounds of legislation -- but I don't believe those amendments affect the logic of Sexson: to impose a Prohibition condition, you've got to have a demonstrated alcohol problem based on the facts of the case or the defendant's history. In other words, blanket Prohibition for all first-time DUII arrestee's does not pass muster.
Crime keeps on dropping in NYC
by: Ryan Scott • December 28, 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 arrestee's does not pass muster.
A couple of notable petitions for cert
by: Ryan Scott • December 22, 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 arrestee's does not pass muster.
Analysis Of Today's US v. Carpenter Oral Argument
by: Ryan Scott • November 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 arrestee's does not pass muster.
Search Warrants, Cell Phones and Particularity
by: Ryan Scott • October 25, 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 arrestee's does not pass muster.
Another Trial Tip
by: Ryan Scott • October 25, 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 arrestee's does not pass muster.
Trial Tip o' the Day
by: Ryan Scott • October 25, 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 arrestee's does not pass muster.
Carpenter: A primer
by: Ryan Scott • October 23, 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 arrestee's does not pass muster.
SW for Cell Phone Sufficiently Limited to Texts from One Person
by: Ryan Scott • October 12, 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 arrestee's does not pass muster.
Admitting your client's guilt over his objection
by: Ryan Scott • September 28, 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 arrestee's does not pass muster.
A good pro-privacy case involving a pole cam
by: Ryan Scott • September 25, 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 arrestee's does not pass muster.
Important case regarding additional testing of item lawfully seized (but without a search warrant)
by: Ryan Scott • September 20, 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 arrestee's does not pass muster.
SW needed to get results of hospital blood draw
by: Ryan Scott • September 14, 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 arrestee's does not pass muster.
The Bad Science Behind Campus Response to Sexual Assaults
by: Ryan Scott • September 8, 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 arrestee's does not pass muster.
