Archive for December, 2009

On December 16, 2009, the Oregon Supreme Court heard arguments in the controversial implied consent case State v. Machuca. Attorney General John Kroger argued the case himself, an indication of the strong law enforcement interest in overturning the controversial Oregon Court of Appeals decision. It seems questionable whether the 6-4 split decision from Oregon’s Court of Appeals will stand given the fact that in a blink it tossed aside nearly 40 years of established implied consent law. What may be of more interest to DUII lawyers and DUII defendants is how cases currently affected by the Machuca holding will be treated by the local district attorneys offices pending the Supreme Court’s ruling in the case. If the State opts to proceed to trial with cases hobbled by the Machuca ruling and lose (before a decision by the Supreme Court is handed down), the State will have no recourse. Case closed. However, if district attorneys opt to appeal the Machuca ruling in each individual case, they would be able to stay the proceedings in each case pending the Supreme Court’s ruling. This may be the most likely tactic for the State in these cases and certainly would slow down resolution of a large number of DUII cases.

Statesman-Journal article here.

Oregon Supreme Court synopsis here.

No surprise, the Sheriffs offices of Multnomah, Clackamas, Washington and Yamhill counties have announced that they will be increasing DUII patrols for the holiday season.

Article here.

Even though law enforcement budgets have been especially tight this year, Portland has received Federal funds to add extra patrols specifically targeting DUII drivers on the following dates.

• December 18th and 19th
• December 30th and 31st

According to Det. Mary Wheat, PPB spokesperson, “We tend to see during the holiday season more people drinking and driving. DUII related accidents tend to increase as well, so we want to get out there and stop them before they happen.”

Article here.

Alcohol Impairment Chart

This chart is intended as a guide,
not a guarantee.

Driving Under the Influence (DUI / DWI) is a crime that has recieved an intense amount of scrutiny in the last 30 years by the public, law enforcement and various public interest groups (MADD). Obviously, the best advice is don’t drive while impaired, however the reality is that most people at one time or another find themselves driving after having consumed some alcohol. Nowadays, with law enforcement actively targeting drivers with low blood alcohol content (BAC) as well as the “drunk” driver. The driver who 20 years ago would not have been arrested now finds themselves facing the full force of the law. With that in mind, here are some tips on how to minimize your exposure (and the evidence against you) should you be pulled over after having consumed alcohol.

1. BE POLITE: It always pays to be polite. Many people are instantly defensive when they are pulled over by the police. It is normal procedure for the police to explain why they pulled you over during the initial contact. Best advice is to listen and say nothing in response. Many people want to argue the point right away. “The light was yellow!”, “This car doesn’t go faster than 50 mph!” AVOID THE TEMPTATION. Remember, you have been drinking. If all you get from the encounter is a speeding ticket then you are lucky. If you start to argue you will annoy the officer. An annoyed officer is one that is focused on how to cause you maximum discomfort and increased scrutiny. Also, the more you talk the more you transmit the smell of alcohol to through the air.
2. DON’T ADMIT ANYTHING: We can’t tell you to lie, however it is your constitutional right to not incriminate yourself. Never admit to drinking. Don’t be goaded into telling them where you’ve been, what you ate, or how you would ‘rate’ your level of sobriety. If the officer asks you a question that you can’t or don’t want to answer (ie “Have you been drinking tonight?”) you can remain silent. Does it look weird? Yes. Is your invocation of your right to remain silent evidence of guilt they can use against you in Court? No.
3. DON’T AGREE TO TAKE ‘TESTS’: A request by the officer for you to take Standardized Field Sobriety Tests (SFST or FST) will soon follow. You do not have to take these tests. Be advised, however, that some jurisdictions may be able to enter your refusal to take these tests as evidence against you in court (In Oregon, whether a refusal to take SFSTs can be used against a driver is subject to the police meeting certain conditions. State v. Rohrs sets forth the procedure for the admission of a refusal of SFSTs, however, it is not uncommon that police fail to properly follow its holding). Keep in mind that police rarely ‘pass’ the drivers who take these tests. Even while sober these tests of coordination can be very difficult to pass. The question you have yourself is whether (in the worst case scenario) you want a jury told that you invoked your rights and refused to take the SFSTs or that you took them and failed. Remember, it is HIGHLY unlikely that you will be able to ‘prove’ to the cops that you are O.K. to drive by taking these heavily biased tests. All you will end up doing is spoon feeding the police the evidence they need to convict you.
4. SHOULD I TAKE THE BREATH TEST? This is the hardest decision that has to be made by the driver. In almost all states the DMV will suspend your license for refusing for a period longer than if you take the breath test and fail. Blow .08% or higher, however, and you’ve likely just given the police all the evidence they need to make a DUII case against you. Many states will also use your refusal to take a breath against you in court. If you think you are less than .08% and your license is important to you, you may want to blow. However, that is a big gamble, especially if you are just estimating your BAC in your head. Many people who don’t feel drunk end up blowing .08% BAC or higher. Remember, it’s not driving while drunk, but driving while impaired. Fortuitously, right now in Oregon, there is considerable question as to whether a breath test refusal can be used against a driver in court (or as the basis for an enhanced license suspension) based upon the recent Oregon Court of Appeals holding in State v. Machuca. Read Machuca here. Ultimately, the driver must make the decision based on all the available facts and circumstances (number of prior DUIIs, level of impairment, importance of license). Probably the most important time to request access to a phone to call a lawyer is right before making the decision as to whether or not to blow. Police in most states are required to allow the driver access to a phone at this point. The Law Office of Squire M Bozorth PC is available 24 hours a day, 7 days a weeks to take calls from Oregon drivers who find themselves in this unfortunate circumstance. 503-266-1661 (If after 5pm press ‘1′ to be connected directly to Squire).
5. CONCLUSION: Ultimately, these tips are meant to help the driver by illustrating that by being polite but firm, one can legally avoid incriminating oneself and thereby make the job of collecting evidence against the driver (and thereby building a successful DUII case) much more difficult for the police. If you have already been arrested and charged with DUII in the State of Oregon and you have more questions, call the Law Office of Squire M Bozorth PC today for your free consultation. 503-266-1661

Oregon State Police recorded 53 arrests for DUII over the holiday weekend. This was the exact same number as 2008. OSP Portland recorded 10 DUII arrests.
http://www.kuik.com/Article.asp?id=1607568&spid=