Archive for October, 2009
State v. Machuca – The Death of Implied Consent?
October 18th, 2009 | 
Author: On September 30, 2009, the Oregon Court of Appeals handed down their opinion in State v. Machuca and in one fell swoop may have rendered dead Oregon’s implied consent law as well as 40 years of supporting case law.
‘Implied Consent’ is not unique to Oregon. Its prevalence throughout the United States means many people are already familiar with it. In essence, implied consent laws state that when a citizen is granted their driver’s license, that grant is a privilege, not a right. In turn for being granted the privilege to drive, the citizen is presumed to ‘consent’ to an alcohol or drug test (whether by breath, blood or urine) at the request of police when certain circumstances are present (ie the police have probable cause that the citizen was driving under the influence).
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State v. Williamson – A Case of Consent
772 P.2d 404
307 Or. 621
STATE of Oregon, Petitioner on Review,
v.
Timothy Paul WILLIAMSON, Respondent on Review.
TC 86-1386-C-1; CA A42019; SC S35681.
Supreme Court of Oregon,
In Banc.
Argued and Submitted Jan. 31, 1989.
Decided April 18, 1989.
State v. Machuca – End of Implied Consent? Only Time Will Tell.
Heer v. DMV – Oregon’s first implied consent case.
450 P.2d 533
252 Or. 455
Lawrence Delmar HEER, Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES, Respondent.
Otis Paul GRAYSON, Appellant,
v.
DEPARTMENT OF MOTOR VEHICLES, Respondent.
Supreme Court of Oregon, In Banc.
Argued and Submitted Jan. 6, 1969.
Decided Feb. 13, 1969.
[252 Or. 456]
Tags: Can I afford to hire a lawyer?
The actual question you might want to ask yourself is: “Can I afford not to hire a lawyer?”
The Law Offices of Squire M. Bozorth PC works with every client and their individual case to come to a fair, honest, and affordable fee agreement.
All major credit cards are accepted and initial consultations are free.
Squire is almost always available by phone to help you make sense of what can be one of life’s more stressful events.
The Law Office of Squire M. Bozorth PC strives to evaluate every case individually so as to present the fairest and most reasonable fee quote given the facts and circumstances of any given case. We understand that it can be difficult to acquire the funds needed to retain a experienced, competent and respected attorney like Squire M. Bozorth, which is why we accept credit cards and in some rare circumstances will consider payment plans. We believe strongly that our office gives its clients extreme value when compared to the competition. Experienced. Aggressive. Reasonable cost. These are the core values we bring to the client in every case.
Lawyer or Pro Se?
Deciding whether to hire a lawyer is an important decision. If you are charged with a crime, getting the right legal advice is a must. The implications and consequencies of a criminal charge and conviction can last for years and impact many areas of your life.
A person who decides not to obtain counsel and goes to court without being represented by a lawyer is called “self-represented” or “pro se.” Pro se is a Latin term that means “for oneself.”
You may need a lawyer if: (these are only examples)
* You want legal advice.
* You do not fully understand papers you received from the other party side or from the court. (Court administration may be able to answer some questions for you.)
* You cannot afford to lose your case.
* You have a complicated case.
* You want to appeal a case.
* You are charged with a crime.
You may not need a lawyer if: (these are only examples)
* You understand your case well enough to explain it to a judge.
* You don’t get overly nervous speaking in public, like a courtroom.
* You are organized and keep accurate records.
* You can write neatly or type.
* You have time to prepare papers, make copies, learn the required steps, file papers with the court, do legal research and attend court hearings.
* You have time to respond (right away) to papers you receive from the other party.
* You are able to read, understand, and respond promptly to all papers you get from the Court.
* Your case is relatively simple and no one will come forward to argue against what you want.
* You are comfortable negotiating with the other side or their lawyer, if represented.
* You speak, read, and write English well.
* When you read state laws and court rules and cases, you understand what you have read.
DUI Penalties: If I’m convicted, will the judge give me jail?
Oregon DUI penalties law requires a minimum of 48 hours in jail (ORS 813.020) or 80 hours of community service (ORS 137.129) upon conviction for DUII. Due to the intense focus the public and the media have placed on the crime of DUII/DWI, many courts are highly reluctant to impose a sentence of community service, even in first conviction cases. Additionally, 48 hours jail is just the minimum required by law. Many courts impose more than 48 hours, even on the first go-round.
In cases where someone is facing a charge of DUII with one or more previous DUII convictions in their past, a request for significant jail time on the part of the District Attorney’s office is an almost certainty. HOWEVER, there are ways jail time can be mitigated, depending on the county involved.
A skilled and experienced DUII attorney will know the particularities of the prosecution, the Courts and the Sheriff’s office and will process all those variables to effectively gain the best possible outcome for his client. Of course, sometimes the best advice is to take the case to trial. Again, an experienced DUII trial attorney will best be able to identify weaknesses in the State’s case and properly advise the client as to the potential gains from full litigation.
Oregon DUII Diversion: Are You Diversion Eligible?
A “Diversion” is potentially available to people charged with DUII conditioned upon the following:
- There are no other charges of DUII (or a like offense from another jurisdiction) pending when the petition is filed.
- The accused petitioner has not been convicted of a DUII or like offense within the period beginning 10 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement.
- The petitioner has never been convicted of felony DUII.
- The petitioner isn’t at the time of filing, nor within the previous 10 years of filing, participating or participated in a driving while under the influence of intoxicants diversion program or in any similar alcohol or drug rehabilitation program.
- The petitioner has no charge of an offense of aggravated vehicular homicide or of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehicle pending in this state or in another jurisdiction on the date the petitoner files the petition for a driving while under the influence of intoxicants diversion agreement.
- The petitioner has not been convicted of an offense of aggravated vehicular homicide or of murder, manslaughter, criminally negligent homicide or assault that resulted from the operation of a motor vehiclewithin the period beginning 10 years before the date of the commission of the present offense and ending on the date the defendant filed the petition for a driving while under the influence of intoxicants diversion agreement.
- The petitioner did not hold a commercial driver license on the date of the commission of the offense.
- The petitioner was not operating a commercial motor vehicle at the time of the offense.
- The present driving while under the influence of intoxicants offense did not involve an accident resulting in the death of any person or physical injury as defined in ORS 161.015 to any person other than the defendant.
A diversion generally lasts one year (extensions for an additional 6 months are possible) and if successfully completed results in the dismissal of the DUII charge. A plea of guilty or no contest is required to enter the diversion program. Some of the standard requirements of the diversion program include an alcohol and drug evaluation and a recommended course of treatment. Length of treatment can vary based upon the outcome of the evaluation, however, the course of treatment can be completed within the year if the petitioner is dilligent in obtaining the evalution and entering the course of treatment. Many counties also require a one time attendance at a Victim Impact Panel. Other requirements may also be imposed.
If you are being denied diversion because the District Attorney maintains you are ineligible for any of the above reasons, all is not lost. Careful examination of your case and its facts by an experienced DUII attorney can uncover errors on the part of the district attorney or possible lines of attack that may still open the door for diversion entry.
What will happen to my license?
If you have a valid Oregon Drivers License (ODL) at the time of your arrest for DUII, your ODL suspension (whatever the length) begins 30 days after your arrest.
Under Oregon’s Implied Consent Law, you are entitled to a hearing. You must request the hearing within 10 days of your arrest in most cases. Quick, decisive action is crucial to mitigate the consequences to your license.
Implied Consent suspension lengths vary. If you are arrested for driving under the influence of intoxicants and you:
* Take a breath test and fail it – DMV will suspend your driving privileges for 90 days. If you have any prior alcohol-related entries on your driving record within five years, DMV will suspend your driving privileges for one year.
* Refuse to take a breath test – DMV will suspend your driving privileges for one year. If you have any prior alcohol-related entries on your driving record within five years, DMV will suspend your driving privileges for three years.
* Refuse to take a urine test – DMV will suspend your driving privileges for one year. If you have any prior alcohol-related entries on your driving record within five years, DMV will suspend your driving privileges for three years. The suspension for refusing a urine test will not start until any other implied consent suspension (even from the same arrest) is over.
* Refuse to take a blood test while receiving medical care in a health care facility following a motor vehicle collision – DMV will suspend your driving privileges for one year. If you have any prior alcohol-related entries on your driving record within five years, DMV will suspend your driving privileges for three years.
* Fail a blood test while receiving medical care in a health care facility following a motor vehicle collision – DMV will suspend your driving privileges for 90 days. If you have any prior alcohol-related entries on your driving record within five years, DMV will suspend your driving privileges for one year. This suspension will begin on the 60th day after DMV received the report that you failed the test. DMV will send a suspension notice to the address on your driving record to inform you of the suspension dates. The officer will not confiscate your driver license and issue a 30-day temporary driving permit. You are required to return any license in your possession to DMV when the suspension begins.
Additionally, when someone is convicted in an Oregon Court for DUII there is a court ordered suspension that is seperate from the Implied Consent suspension imposed by DMV (described above).
The first conviction is for DUII results in a 1 year ODL suspension.
A second conviction for DUII within 5 years of a previous conviction results in a 3 year ODL suspension.
A third conviction for DUII, no matter when it occurs in relation to the previous convictions, results in a LIFETIME revocation.
There is not an additonal court ordered ODL suspension for someone who enters into a diversion. The only suspension for someone in diversion is the initial suspension imposed under the Implied Consent Law by DMV.
Hardship permits may be possible to obtain in some cases.