New Cellphone/ Mobile Electronic Device Law in Effect October 1, 2017

On August 2, 2017, Governor Kate Brown signed House Bill 2597 into law. HB 2597 amends our current cell phone law, ORS 811.507, Operating a Motor Vehicle While Using a Mobile Communication Device to Operating a Motor Vehicle While Using a Mobile Electronic Device.

The changes go far deeper than the title, of course. The new law is a reaction to State v. Rabanales-Ramos, a 2015 case that gave us a little more wiggle room when it came to cellphone tickets. Under the new law, a Mobile Electronic Device is defined as any “…device capable of text messaging, voice communication, entertainment, navigation, accessing the Internet or producing electronic mail.” This covers far more than our old definition of communication devices, which was “…a text messaging device or a wireless, two-way communication device designed to receive and transmit voice or text communication.”

Under the new version a court can find us guilty when we “hold” an MED or use an MED “for any purpose”. We can’t use it when we are at a stop sign or stopped in bumper to bumper traffic because “[d]riving means operating a motor vehicle on a highway or premises open to the public, and while temporarily stationary because of traffic, a traffic control device or other momentary delays.” That means we can no longer rely on the traditional definition of “driving” – to move or propel.

In addition to the stricter law, the legislature has drastically increased the penalties. Operating a Vehicle while using a Mobile Electronic Device will become a B violation with a presumptive $265 fine. If there is a crash you’re looking at  A violation with a presumptive $435 fine. Penalties will increase dramatically for subsequent convictions. For a first offense the court will offer a class in lieu of a fine, but that arrangement puts a conviction on your record.  A second conviction in ten years is deemed an A violation, with no option to take a class. The offense will be enhanced to a B misdemeanor, an actual crime with potential jail time with a minimum fine of $2,000 for a third conviction in 10 years. People who were convicted under the previous law will also face the increased penalties, so I’m preparing to challenge prior convictions.

I still see some defenses in there, but they are doing their best to chip away at them. I look forward to fighting back.

 

UPDATE:

It looks like misdemeanor treatment will be based on previous convictions of the new MED law rather than the MCD law we’ve had for a few years.

Urine Tests in DUII Diversion — The Rules

Lately I’ve heard one municipal judge assert that a “dilute” urine test must be treated as positive for drugs under Oregon law. I have been unable to find legal support for that assertion, and am in contact with that court’s ADES and, if no luck there, I’ll directly ask the judge for his legal support. In any event, the rules about urine tests are published and have long been established:

309-019-0195

DUII Rehabilitation Programs

(1) In addition to the general standards for substance use disorders treatment programs, those programs approved to provide DUII rehabilitation services must meet the following standards:

(a) DUII rehabilitation programs must assess individuals referred for treatment by the screening specialist. Placement, continued stay and transfer of individuals must be based on the criteria described in the ASAM PPC, subject to the following additional terms and conditions:

(A) Abstinence: Individuals must demonstrate continuous abstinence for a minimum of 90 days prior to completion as documented by urinalysis tests and other evidence;

(B) Treatment Completion: Only DUII rehabilitation programs may certify treatment completion;

(C) Residential Treatment: Using the criteria from the ASAM PPC, the DUII program’s assessment may indicate that the individual requires treatment in a residential program. When the individual is in residential treatment, it is the responsibility of the DUII program to:

(i) Monitor the case carefully while the individual is in residential treatment;

(ii) Provide or monitor outpatient and follow-up services when the individual is transferred from the residential program; and

(iii) Verify completion of residential treatment and follow-up outpatient treatment.

(2) Urinalysis Testing: A minimum of one urinalysis sample per month must be collected during the period of service, the total number deemed necessary to be determined by an individual’s DUII rehabilitation program:

(a) Using the process defined in these rules, the samples must be tested for at least five controlled drugs, including alcohol;

(b) At least one of the samples is to be collected and tested in the first two weeks of the program and at least one is to be collected and tested in the last two weeks of the program;

(c) If the first sample is positive, two or more samples must be collected and tested, including one sample within the last two weeks before completion; and

(d) Programs may use methods of testing for the presence of alcohol and other drugs in the individual’s body other than urinalysis tests if they have obtained the prior review and approval of such methods by the Division.

(3) Reporting: The program must report:

(a) To the Division on forms prescribed by the Division;

(b) To the screening specialist within 30 days from the date of the referral by the screening specialist. Subsequent reports must be provided within 30 days of completion or within 10 days of the time that the individual enters noncompliant status; and

(c) To the appropriate screening specialist, case manager, court, or other agency as required when requested concerning individual cooperation, attendance, treatment progress, utilized modalities, and fee payment.

(4) Certifying Completion: The program must send a numbered Certificate of Completion to the Department of Motor Vehicles to verify the completion of convicted individuals. Payment for treatment may be considered in determining completion. A certificate of completion must not be issued until the individual has:

(a) Met the completion criteria approved by the Division;

(b) Met the terms of the fee agreement between the provider and the individual; and

(c) Demonstrated 90 days of continuous abstinence prior to completion.

(5) Records: The DUII rehabilitation program must maintain in the permanent Service Record, urinalysis results and all information necessary to determine whether the program is being, or has been, successfully completed.

(6) Separation of Screening and Rehabilitation Functions: Without the approval of the Chief Officer, no agency or person may provide DUII rehabilitation to an individual who has also been referred by a Judge to the same agency or person for a DUII screening. Failure to comply with this rule will be considered a violation of ORS chapter 813. If the Chief Officer finds such a violation, the Chief Officer may deny, suspend, revoke, or refuse to renew a letter of approval.

Stat. Auth.: ORS 161.390, 413.042, 428.205 – 428.270, 430.640 & 443.450
Stats. Implemented: ORS 161.390 – 161.400, 430.010, 430.205 – 430.210, 430.240 – 430.640, 430.850 – 430.955, 443.400 – 443.460, 443.991, 743A.168, 813.010 – 813.052 & 813.200 – 813.270
Hist.: MHS 6-2013(Temp), f. 8-8-13, cert. ef. 8-9-13 thru 2-5-14; MHS 4-2014, f. & cert. ef. 2-3-14; MHS 11-2016(Temp), f. 6-29-16, cert. ef. 7-1-16 thru 12-27-16; MHS 18-2016, f. 11-28-16, cert. ef. 11-30-16

It’s Still Illegal to Impose More Jail For Going to Trial

The original post on this topic is here: More Jail for Trial? No!

The Court of Appeals has reversed three convictions recently for judges imposing more jail on someone who went to trial:

State v. Robledo, 281 Or App 96 (2016) (Egan, J.) Robledo opinion

State v. Bradley, 281 Or App 696 (2016) (Tookey, J.) Bradley opinion

State v. Criswell, 281 Or App 146 (2016) (Garrett, J.) (this one was for a harsher sentence following appeal) Criswell opinion

Point being, it’s really true: courts cannot use the sentencing power as a stick to force people into pleading guilty, and lawyers should not assist with it. It’s illegal, and it’s morally reprehensible.

Motion to Vacate IID Requirement in Oregon DUII Diversion

Oregon courts can vacate your DUII Diversion Ignition Interlock Device (IID) agreement after 6 months if you show:

(1) You’ve had the device installed for at least 6 months;

(2) In that 6 months, you’ve had zero “negative reports”; and

(3) You’re in compliance with your alcohol and drug treatment program. Since those programs require a minimum 90-days of demonstrated alcohol and drug abstinence, hopefully you’re done with treatment at 6 months. If you’ve had a dirty UA (urine analysis) during treatment, you will be required to re-start treatment, and at a higher (and more expensive) level of care. More meetings, more time, more hassle (and, of course, you could have Diversion revoked for even a single dirty UA). The key to winning in DUII Diversion really, truly is: abstain from alcohol and drugs for the full year of your contract with the court.

For the IID, a “negative report” is “a report of tampering with an ignition interlock device, unauthorized removal of an ignition interlock device, lockout or a test violation recorded by an ignition interlock device.” ORS 813.645.

ORS 813.645 motivates DUII Diversion petitioners to install the IID promptly upon Diversion entry, to get the 6-month clock rolling. The statute also encourages us to have zero dirty UAs in treatment since we have to prove “compliance.” If you’re sick of the device, ask your lawyer to file a motion to vacate the IID requirement at the 6-month mark. Some lawyers build this into their fee agreements, some ask for an additional fee (it is, of course, more legal work), and some will simply do it for free as a courtesy. If you don’t have a lawyer, consider hiring one for this motion to the court — you always have a better chance of things working out for you with a well-respected lawyer at your side. No matter what, you’ll be the one doing the leg-work to get the reports of (a) “compliance” in treatment and (2) 6-months of IID reports sans “negative reports.”

Your lawyer will assemble those documents into a motion to the court, asking to vacate the IID requirement. A hearing may be required, and although your appearance isn’t explicitly required by the statute, odds are slightly better if you show. The court may consider your BAC (Blood Alcohol Content) and other circumstances from your arrest. The text of the statute is here:

ORS 813.645 Motion to vacate requirement to install and use ignition interlock device; rules. (1)(a) As used in this section, “negative report” includes a report of tampering with an ignition interlock device, unauthorized removal of an ignition interlock device, lockout or a test violation recorded by an ignition interlock device.
(b) The Department of Transportation may by rule further define what constitutes a test violation.
(2) A defendant may apply by motion to the court in which a driving while under the influence of intoxicants diversion agreement described in ORS 813.230 was entered for an order vacating the requirement to install and use an ignition interlock device if the defendant:
(a) Has complied with the condition of the diversion agreement described in ORS 813.602 (3) for at least six consecutive months and provides a certificate to the court from the ignition interlock device provider stating that the device has not recorded a negative report; and
(b) The defendant has entered into and is in compliance with any treatment program that the person is required to participate in as a condition of diversion.
(3) The defendant shall cause to be served on the district attorney or city prosecutor a copy of the motion for an order vacating the requirement to install and use an ignition interlock device under ORS 813.602 (3). The copy of the motion shall be served on the district attorney or city prosecutor at the time the motion is filed with the court. The district attorney or city prosecutor may contest the motion.
(4) The court shall hold a hearing on a petition filed in accordance with subsection (2) of this section. In determining whether to grant the petition, the court shall consider:
(a) The nature of the underlying crime for which driving privileges were suspended.
(b) The blood alcohol content of the defendant at the time of the arrest.
(c) Any other relevant factors.
(5) The court may vacate a defendant’s requirement to install and use an ignition interlock device under ORS 813.602 (3) if, after a hearing described in subsection (4) of this section, the court finds by a preponderance of the evidence that the petitioner:
(a) Has complied with the condition of the diversion agreement described in ORS 813.602 (3) for at least six consecutive months with no negative reports; and
(b) Has entered into and is in compliance with any treatment program required as a condition of diversion.
(6) When a court vacates a defendant’s requirement to install and use an ignition interlock device under ORS 813.602 (3), the court shall notify the department. [2015 c.577 §4]

Photo Traffic Tickets

Many people just pay photo tickets  believing that the photograph makes it too hard to win. In fact, photo tickets come with a series of hoops for the government which often makes them more winnable than traditional tickets.

Once you hire an attorney we will give the court and prosecutor notice that we are “challenging the statutory preconditions to the issuance of the citation. We typically call this a King Motion, after a case called “State of Oregon v Kermit King”.  ORS 810.436 and 810.439 lay out the preconditions like a checklist.

The precondition I get the most traction out of at trial is 810.439(E) or the sister statute 810.436(d);  which require the government to show that the citation was mailed within 6 or 10 days respectively. Since the cop didn’t mail it the government will have to bring someone who has personal knowledge about the mailing. If at all possible, save the envelope the ticket was mailed in so we can check the postmark. If we can show it wasn’t postmarked in time, we should win!

Many of my clients tell me that they didn’t see the required signage. Most cops working the vans simply testify that they put the signs up and that is the end of it. Judges tend to believe that it’s more likely the driver missed the signs than that the cop is lying under oath. There are times, especially with fixed photo radar, that we can impeach the officer’s testimony with photographs showing the signs were not in compliance.

Another question I get a lot is about the photos themselves; they tend to be blurry and sometimes even dark. The legislature seemed to take bad photography into consideration when they added the rebuttable presumption to the preconditions. That means it is up to the defendant to show that they were not the driver. Typically the government has burden of showing that the defendant was driving but that has been shifted in these tickets.

If you aren’t the driver, sign the certificate of innocence and send it back ASAP. Unless you are a business or government entity you do not have to rat out the driver. If it was you or you can’t tell, hire a lawyer,  plead not guilty and go to trial. False swearing is a felony, you don’t want to turn your traffic ticket into a crime of moral turpitude.

As in any legal matter, it’s always easy to get a good result with a lawyer by your side.

Oregon Ignition Interlock Device — Required When You Blow <.08% BAC?

The short answer is: no, it’s not required. It’s up to the judge, and it’s an “abuse of discretion” standard. That means the judge has wide (but not unfettered) latitude to either grant or deny an exception to the IID requirement. It’s a call to advocacy for defense lawyers, especially to make a record and consider mandamus relief if not granted, and if the facts are on our side — or if the judge’s decision is based on a blanket DA argument, see below.

The court must impose the IID requirement for you as part of DUII Diversion if:

(1) You blew above .08% BAC.

(2) You refused the breath test.

(3) You blew more than .00% BAC, less than .08% BAC, and a urine test showed controlled substances.

On the other hand, the court is not required to impose the IID provision if you blew zeros and this is just a controlled substance DUII, or if you blew under a .08% BAC and there’s no urine test with drugs in it.

Before I get into statutory language, I want to point out the problem with one DA argument in opposition to relief from the IID requirement: “Judge, we’re concerned that people will switch substances, so even though this prescription DUII case involved no alcohol, we’re worried the defendant will switch from prescription meds to alcohol.” In other words, the DA’s argument was based on hearsay, innuendo, character blackening, and had nothing to do with the facts of the case before the court. If IID relief were denied on this basis, this argument would nullify the statutory exception in every instance, nullifying the legislature’s intent for brief case-by-case judicial consideration. The DA argument did not prevail, but it was breathtaking in it’s “one size fits all” temerity — reminiscent of how that same DA’s office objects to each and every civil compromise.

The statute is here. Note the bolded words:

ORS 813.602 Circumstances under which ignition interlock device required; exemptions; rules. * * *

(3)(a) Except as provided in paragraph (c) of this subsection, as a condition of a driving while under the influence of intoxicants diversion agreement:

(A) The court shall require that an approved ignition interlock device be installed and used in any vehicle operated by the person during the period of the agreement when the person has driving privileges if:
(i) The person submitted to a chemical test of the person’s breath or blood as required under ORS 813.100 and the test disclosed a blood alcohol content of 0.08 percent or more by weight;
(ii) The person refused to submit to a chemical test of the person’s breath or blood; or
(iii) The person submitted to a chemical test of the person’s breath, blood or urine as required under ORS 813.100 or 813.131 and the test disclosed a blood alcohol content of more than 0.00 percent by weight but less than 0.08 percent by weight and disclosed the presence of a controlled substance or an inhalant.

(B) The court may require that an approved ignition interlock device be installed and used in any vehicle operated by the person during the period of the agreement when the person has driving privileges if the person submitted to a chemical test of the person’s breath, blood or urine as required under ORS 813.100 or 813.131 and the test disclosed a blood alcohol content below 0.08 percent by weight.

For information on employer-provided vehicle exemptions, see here: IID Employer Owned Vehicle Exemption

90-Days Perfection for IID in DUII Diversion

ORS 813.635(2) now provides:

“[T]he requirement to have an ignition interlock device installed in a vehicle continues until the person submits to the department a certificate from the ignition interlock device provider stating that the device did not record a negative report for the last 90 consecutive days of the required installation period. The department shall remove the ignition interlock device requirement from the person’s driving record as soon as practicable after the department receives the certificate.
(3) If there is a negative report during the last 90 consecutive days, the person shall continue to use an ignition interlock device beyond the period required under ORS 813.602 (1)(b) or (c), (2) or (3) until the person submits a certificate, in a form prescribed by rule by the department, to the department from the ignition interlock device provider stating that the device has not recorded a negative report for 90 consecutive days, beginning on the date of the most recent negative report.”

Prior to this statute, some DUII Diversion petitioners would ask me, “What if I just don’t drive for a year? I can ride my bicycle and use public transit to get around.” I would respond, “Great! No need to install an IID then. You avoid the expense, hassle, and destruction visited on your car’s ignition system!”

Enter the Oregon legislature, passing this statute to require everybody to install an IID and prove stellar results for at least the last 90-days of Diversion. The statute is very poorly written, and fails to account for the situation where a driver never installed an IID during Diversion, learns of this statute, then installs one. In that case, some DMV clerks are refusing to remove the IID requirement. The smart ones are. But a citizen’s legal protection should not depend on which clerk happens to be working that day, and our legislature owes our people much better.

Oregon DMV Hearing FAQs

QUESTION: Do I have to go to my Oregon DMV Hearing?

ANSWER: If you have a lawyer there, no, you do not have to attend your Implied Consent hearing. However, I find it almost always helps to have you there. That’s true because most of my clients have their memory jogged by something the officer says, and sometimes it results in us winning the hearing. Also, it’s your first chance to see your lawyer fight for you — and get a gauge on how they fight. After the hearing, I always like to have a 10-15 minute recap with my client to get their impressions and talk about strategy on the criminal case.

QUESTION: Will they ask me any questions at the DMV Hearing?

ANSWER: No. You’re not a source of evidence, because in the related criminal case you have a right to silence. The Administrative Law Judge (ALJ) may confirm your mailing address with you at the start of the hearing. After the officer testifies, you have the right to testify if you wish. In 99% of my DMV Hearings, my client does not testify. There’s rarely any benefit to it in this type of hearing.

QUESTION: Who is the Judge?

ANSWER: Your case will be adjudicated by an Administrative Law Judge (ALJ) from the Oregon Office of Administrative Hearings (OAH). The ALJ will not be in a robe and is not an elected judge. She will be dressed in business casual attire or thereabouts. ALJs are lawyers who simply applied for a state job. Sometimes they are experienced, and sometimes not. They’re generally nice people trying to make the right decision.

QUESTION: How should I dress?

ANSWER: DMV Hearings are meant to be informal administrative hearings. They are not lawsuits, and they are not in court. There is no need to wear a suit and tie or formal attire. On the other hand, you should look like you’re taking this matter seriously. Business casual tends to work best.

QUESTION: Can I drive to the hearing, or will the judge take my license away if we lose — right there?

ANSWER: If you had a valid license at the time of your arrest, you are still able to drive to and from the hearing. That’s true because, on the night of your arrest, the police officer did not issue you a suspension. He issued you a notice of proposed suspension, slated to start on the 30th day after the date of your arrest.

QUESTION: Where will we meet at the hearing?

ANSWER: These hearings are almost always held in some nondescript office building. We’ll meet inside the hearing room or lobby (depending on the office layout), 15 minutes early.

QUESTION: What’s the point of this DMV hearing?

ANSWER: We’re looking for any reason for the proposed suspension to not be imposed. We’re also investigating the case by questioning the state’s star witness. We use that information to make smart decisions about how to handle the criminal case.

Oregon DUII Diversion — How Long to Decide?

If you’re arrested for DUII and you’re eligible for the Oregon DUII Diversion program, the law generally requires that you file your Diversion petition within 30 days of your first court appearance. ORS 813.210(1). However, that deadline can be extended for “good cause.” ORS 813.210(1)(a). The legislature didn’t give us much guidance on what constitutes “good cause,” but they told us what doesn’t: filing a motion to suppress, demurrer, omnibus hearing, or starting a trial.

In 2013 Oregon passed a “Brady Bill,” codifying the discovery obligations of Brady v. Maryland, 373 US 83 (1963). The prosecutor must disclose police reports, notes, and any lab note results of blood alcohol content (BAC). ORS 135.815(1), (3). But subsection (2) addresses timing, indicating those disclosures “shall occur without delay after arraignment and prior to the entry of any guilty plea pursuant to an agreement with the state. If the existence of the material or information is not known at that time, the disclosure shall be made upon discovery without regard to whether the represented defendant has entered or agreed to enter a guilty plea.” ORS 135.815(2).

Most courts understand that a guilty or no contest plea entered without full discovery is on its face not an intelligent and knowing plea. That is, without a lab report indicating what BAC the state attributes to the defendant, the defendant cannot know how her lawyer would defend the case. Lawyers do not defend under-the-limit DUII cases the same way we defend over-the-limit DUII cases. An accurate measurement of BAC can help protect the innocent and convict the guilty, and it is arguably the most important piece of evidence in any DUII case — because it harks from science, not opinion.

Point being: even though the legislature didn’t tell us what “good cause” meant for delaying an Oregon DUII Diversion decision, they did tell us that we’re not supposed to permit guilty pleas without full discovery.

There are times where it may, nevertheless, be wise to enter a plea to enter DUII Diversion without full discovery. For instance, if you feel that you were three sheets to the wind while driving, and you want to start the Diversion obligations, you are not required to wait until blood draw results come back from the Crime Lab (which typically take 6-8 weeks at the time of this writing). The nice thing about starting Diversion obligations in that situation are: (1) they then end sooner; (2) sometimes starting the process of Diversion helps deal with guilt or shame brought on by the arrest; (3) the Ignition Interlock Device (IID) requirement can start during a time when you’re already suspended for refusing or failing a breath test; and (4) early recognition of an alcohol problem can be looked on favorably by courts and prosecutors in relation to other pending charges from the night of the arrest (Reckless Driving, Reckless Endangering, etc.).

The short answer to “how long you have to decide” is: 30 days from your first court appearance. But if discovery is not complete, the law makes clear that you shouldn’t be required to enter a plea and enter the Oregon DUII Diversion program just yet — to give up your rights and defenses at trial, you have to know about what they’d be. And most lawyers can’t tell you how they’d defend your case without knowing what the BAC is.