defending duii cases in oregondefending duii cases in oregon v schedule 8:30 registration 9:00 the...

Thursday, November 15, 2012 9 a.m.–12:15 p.m.

Oregon State Bar Center Tigard, Oregon

3.25 General CLE credits

Cosponsored by the Criminal Law Section

Defending DUII Cases in Oregon

Defending DUII Cases in Oregon ii

DEfENDING DUII CaSES IN OrEGON

SECTION PLaNNEr

Samuel C. Kauffman, Garvey Schubert Barer, Portland

OrEGON STaTE Bar CrImINaL Law SECTION EXECUTIVE COmmITTEE

Samuel C. Kauffman, ChairTimothy A. Sylwester, Chair-Elect

Gregory D. Horner, Past ChairPeter L. Deuel, TreasurerBeth L. Roberts, Secretary

Bradley C. BerryAaron L. Brenneman

Milan E. CastilloSteven H. Gorham

Jamie S. KilbergGregory B. Scholl

Shawn Evans WileyDaniel Ousley, Advisory Member

The Honorable Janelle Factora Wipper, Advisory Member

The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials.

Copyright © 2012

OREGON STATE BAR16037 SW Upper Boones Ferry Road

P.O. Box 231935Tigard, OR 97281-1935

Defending DUII Cases in Oregon iii

TaBLE Of CONTENTS

Schedule . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . v

faculty . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . vii

1. The Cycle of Your DUII Case . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–i— Lisa J. Ludwig, Attorney at Law, Portland, Oregon

2. The Ten Commandments of DmV Hearings . . . . . . . . . . . . . . . . . . . . . . . . . . . 2–i— Ben Eder, Thuemmel Uhle and Eder, Portland, Oregon

3. Suppression motions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–i— Ben Eder, Thuemmel Uhle and Eder, Portland, Oregon

4. Common Defenses and Considerations related to Diversion or Pleading Guilty . . . . . 4–i— richard E. Oberdorfer, Oberdorfer Law Firm LLC, Portland, Oregon

Defending DUII Cases in Oregon iv

Defending DUII Cases in Oregon v

SCHEDULE

8:30 registration

9:00 The Seven Steps of DUIIF The cycle of a DUII caseF What every attorney should knowLisa J. Ludwig, Attorney at Law, Portland

10:00 DmV License Sanctions (Don’t waive That Hearing!)F The strategic value of a DMV hearingF Effective strategies for avoiding a DMV license suspensionBen Eder, Thuemmel Uhle and Eder, Portland

10:30 Break

10:45 Suppression motionsF Unique search and seizure issuesF The initial stop and interrogationF Requests for blood, breath, or urine testsBen Eder, Thuemmel Uhle and Eder Portland

11:15 Common Defenses and Considerations related to Diversion or Pleading GuiltyF Effective strategies for resolving a DUII case by trial, diversion, or a guilty plearichard E. Oberdorfer, Oberdorfer Law Firm LLC, Portland

12:15 adjourn

Defending DUII Cases in Oregon vi

Defending DUII Cases in Oregon vii

faCULTY

Ben Eder, Thuemmel Uhle and Eder, Portland. Mr. Eder practices in the areas of DUII defense and criminal defense. He has argued DUII cases before the Court of Appeals and tried misdemeanor and felony jury trials. Mr. Eder is a member of the Multnomah Bar Association, the American Bar Association, the Oregon New Lawyers Division, and the Oregon Criminal Defense Lawyers Association. He received the 2008 Oregon State Bar Member Service Award for his service through the Oregon New Lawyers Division. He has presented continued legal education seminars on defending driving under the influence cases to lawyers in Portland, Eugene, and Salem. In July 2009, he was the featured speaker regarding how to defend DUII cases in a presentation to the Metropolitan Public Defender’s Office in Portland. Mr. Eder authored the chapter on conducting Department of Motor Vehicle Hearings for the DUII Notebook, published by the Oregon Criminal Defense Lawyers Association in 2008.

Lisa J. Ludwig, Attorney at Law, Portland. Ms. Ludwig has been a criminal defense attorney since 1996, including two years as a public defender and eleven years in private practice. She has handled all types of criminal cases from pre-indictment through trial: traffic, drugs, property crimes, assaults, sexual assaults, robbery, and homicide, including aggravated murder. Ms. Ludwig is a member of the Multnomah Defenders, Inc., Board of Directors, the National Association of Criminal Defense Lawyers, the Oregon Criminal Defense Lawyers Association, and the Multnomah Bar Association. She is a regular speaker on criminal defense topics, and she coauthored the chapter on “Search and Seizure—Without Warrants” in Criminal Law (Oregon CLE 2005 & Supp 2006).

richard E. Oberdorfer, Oberdorfer Law Firm LLC, Portland. Mr. Oberdorfer is in private practice, specializing in DUII.

Defending DUII Cases in Oregon viii

Chapter 1

The Cycle of Your DUII Case(with apologies to Dr. Kubler-ross)

Lisa J. Ludwig

Attorney at LawPortland, Oregon

Contents

I. The Call from the Jail, or the Shock Stage (Initial Paralysis at Hearing the Bad News) . . . . 1–1

II. The First 24 Hours, or the Denial Stage (Trying to Avoid the Inevitable) . . . . . . . . . . . . 1–1

III. The First Week, or the Anger Stage (Frustrated Outpouring of Bottled-Up Emotion) . . . . . 1–2

IV. The First Month, or the Bargaining Stage (Seeking in Vain for a Way Out) . . . . . . . . . . . 1–3

V. The First 90 Days, or the Depression Stage (Final Realization of the Inevitable) . . . . . . . . 1–4

VI. The First Six Months, or the Testing Stage (Seeking Realistic Solutions) . . . . . . . . . . . . 1–4

VII. One Year Later, or the Acceptance Stage (Finally Finding the Way Forward) . . . . . . . . . . 1–5

AppendixesA. Sample Defendant’s Motion Regarding Driver License Suspension/Revocation . . . 1–7B. Sample DMV Hearing Request . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–13C. SR-22 Definition . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1–15D. Sample Motion to Dismiss Based on Successful Completion of Diversion . . . . . . 1–17

Chapter 1—The Cycle of Your DUII Case

Defending DUII Cases in Oregon 1–ii


Defending DUII Cases in Oregon 1–1

I. THE CaLL frOm THE JaIL, Or THE SHOCK STaGE (INITIaL ParaLYSIS aT HEarING THE BaD NEwS)

A. Whether to blow or not?

B. Whether to answer questions or not?

1. Request privacy.

2. Was there a prior DUII or suspension?

3. CDL? If so, no diversion—so refuse.

4. Prior diversion in last 15 years? If so, no diversion—so refuse.

5. If fewer than two small drinks in last two or more hours—client may elect to blow.

6. If diversion eligible—client may elect to blow (more evidence at trial but shorter suspension).

C. DUII law is dynamic.

1. Review the statute for changes.

2. Be prepared for client to have done his or her own “research.”

3. Call a practitioner.

D. Remember that for many clients, this is the worst night of their life.

II. THE fIrST 24 HOUrS, Or THE DENIAL STAGE (TrYING TO aVOID THE INEVITaBLE)

A. Jail or bail?

1. DUII is a crime where client can receive a cite-in-lieu, be arrested and released on recognizance after a certain period/after passing jail breath test, or be held for arraignment and then released.

2. Unless client is cited in lieu or bails out, s/he will be subject to a release agreement.

a. No-drinking conditions.

b. Travel restrictions.

c. No-contact orders with “victim” or “witness” where victim or witness is friend/family.

3. Bail that is self-posted goes back to the client.

a. Bail that is posted by third party goes back to third party.

b. Either way, fines and fees are deducted before bail is returned, and the poster is liable for the full bail in case of failure to appear.

4. See county jail website for release and bail info.

B. Where’s auto?

1. ORS 809.720(1)(b) allows the police to impound a vehicle when the driver is arrested for DUII.

2. ORS 809.710 allows police to keep a vehicle until the owner is sober.

3. If accident—probably towed to a private lot or seized as evidence.

4. If no accident—seized and releasable.

ExampLE: Multnomah County charges a $500 fee to release the vehicle.

http://www.changingminds.org/disciplines/change_management/kubler_ross/denial_stage.htm



5. Accident report required?

a. DMV website.

b. Just the facts.

III. THE fIrST wEEK, Or THE ANGER STAGE (frUSTraTED OUTPOUrING Of BOTTLED-UP EmOTION)

A. First conference with the client.

What is an arraignment?

1. Identify counsel or request court-appointed counsel.

2. Address release issues.

3. Set next court date.

4. Trigger discovery obligation.

5. Start the clock on diversion (30 days).

6. Address violations:

a. Tracking?

b. If not tracking, separate trial request.

B. DMV process vs. criminal process.

1. Out-of-state license?

2. Separate potential suspensions.

3. Separate processes.

4. Value of DMV hearing in criminal case.

C. Criminal process.

1. Timeline.

2. Trial vs. diversion or

3. Trial vs. negotiation.

4. Jury vs. bench.

5. Status checks.

6. Investigation.

7. Funding.

D. Criminal history.

1. Any prior arrests for any alcohol-related traffic crimes ever, anywhere?

2. Trust but verify.

3. Pull those records yourself.

4. Discuss suspension/revocation/habitual offender issues with client (see Appendix A for sample motion contesting use of prior out-of-state conviction).

E. Diversion eligibility (ORS 813.215).

1. If client seems to be disqualified due to prior,

a. See if prior was counseled or uncounseled;

http://www.changingminds.org/disciplines/change_management/kubler_ross/anger_stage.htm



b. See if prior was from another jurisdiction;

c. See if prior was really a “diversion” within the meaning of Dunbrasky.

2. If client seems to be disqualified due to injury, consider investigation to verify injury.

3. If client seems to be disqualified due to CDL, consider whether CDL was valid.

4. If client seems to be disqualified because of failure to appear at arraignment,

a. Negotiate this with DA;

b. Request diversion entry anyway.

5. If client seems to be disqualified because there was a minor in car, request diversion anyway—entry is discretionary (ORS 813.220(5)).

6. Request DMV hearing (see Appendix B for sample).

7. Hardship permits.

a. Application.

b. Time limits.

c. SR-22 (see Appendix C for info).

d. Ignition interlock device.

IV. THE fIrST mONTH, Or THE BARGAINING STAGE (SEEKING IN VaIN fOr a waY OUT)

A. Review police reports with client.

1. Read them aloud.

2. Anything incorrect or omitted?

3. Discuss legal or factual significance of errors.

4. Discuss what defenses may apply, including what motions could be filed and what effect the rulings on motions may have.

5. Discuss license suspension/revocation issues and how they may/will affect decisions.

6. Discuss investigation (scope, cost, purpose, self-help).

7. Discuss use of experts (purpose, cost).

B. Commence investigation.

1. Order BOEC/dispatch recordings.

2. Order DPSST training records.

3. Request copies of photos, video, access to evidence seized.

4. Pull booking photo of client.

5. Order client’s DMV record.

6. Hire an investigator to:

a. Take photos of scene;

b. Interview witnesses;

c. Drive the route.

C. File your motions.

1. Search and seizure.

http://www.changingminds.org/disciplines/change_management/kubler_ross/bargaining_stage.htm



2. Confrontation issues.

3. Miranda.

4. Brown/104 hearing.

D. Prepare for diversion.

1. Client should understand obligations and process.

2. Have extra copy of police reports and DMV record ready.

3. Check on health insurance coverage of treatment in advance.

4. Plan what to do with tracking cites/other charges.

5. Use no-contest plea if there are other charges/violations.

E. Attend the DMV hearing.

1. Raise Pooler and Bish.

2. Address stop issues.

3. Look for technical defects.

4. Gather information.

V. THE fIrST 90 DaYS, Or THE DEPRESSION STAGE (fINaL rEaLIzaTION Of THE INEVITaBLE)

A. Diversion.

1. Diversion entry hearing.

2. Contested diversion entry

a. File your petition, despite objection.

b. Make sure your petition is filed, even in Washington County.

B. Pre-trial conferences.

C. Disposing of accompanying charges.

1. Civil compromise.

2. The insurance company may be your friend.

3. Beware the license suspension issues.

VI. THE fIrST SIX mONTHS, Or THE TESTING STAGE (SEEKING rEaLISTIC SOLUTIONS)

A. Trial on the DUII.

1. Prepare the client for delay.

2. Prepare the client for trial process.

a. Court vs. jury.

b. Participation in voir dire.

c. Taking notes at trial.

d. Testimony or forbearance.

e. Sobriety during.

3. Prepare witnesses for delay and for trial process.

4. Visit the scene, check out the car.

http://www.changingminds.org/disciplines/change_management/kubler_ross/depression_stage.htm

http://www.changingminds.org/disciplines/change_management/kubler_ross/testing_stage.htm



5. A picture is worth a thousand words.

6. Have your manuals, know your FST procedures.

B. Winning and losing.

1. What do you mean, my license is still suspended?

2. Sentencing issues.

a. Mandatory jail.

b. Mandatory license suspension or “what about my constitutional right to drive?”

c. Hardship permit issues.

3. Probation and probation violations.

a. Lawyer for life?

b. Treatment, treatment, treatment.

i. The need for redundant record-keeping.

ii. The need for extensions (ORS 813.225).

C. Life in diversion.

1. Have client send you copies of receipts and graduation documents.

2. Orders to show cause (ORS 813.225).

a. Standard is preponderance of the evidence.

b. Termination can be for any reason that would have initially disqualified under ORS 813.215.

VII. ONE YEar LaTEr, Or THE ACCEPTANCE STAGE (fINaLLY fINDING THE waY fOrwarD)

A. No “expungement” for DUIIs unless acquittal or nondiversion dismissal.

B. Completion of diversion does not result in automatic dismissal.

C. ORS 813.250 requires motion (see Appendix D for sample).

http://www.changingminds.org/disciplines/change_management/kubler_ross/acceptance_stage.htm



aPPENDIX a—SamPLE DEfENDaNT’S mOTION rEGarDING DrIVEr LICENSE SUSPENSION/rEVOCaTION



L I S A J. L U DW I G A T T O R N E Y A T L A W

8 1 1 S W N A I T O P A R K W A Y , S U I T E 5 0 0 P O R T L A N D , O R 9 7 2 0 4

TEL. 503-223-5570 FAX 503-721-9050 WEB www.ludwiglegaldefense.com

August 15, 2012

DMV Hearings Case Management 1905 Lana Avenue, N.E. Salem, Oregon 97313 Via Facsimile (503) 945-5521

RE: State v. Saul Tigh Case #Z121212

Dear Hearings Clerk: Please be advised that I have been retained to represent Saul Tigh in the above-referenced matter. By this letter, I request a formal hearing, in person, on the suspension of my client’s driver license. Pursuant to the instructions on form 735-6667, Notice of Intent to Suspend, the following information is submitted: Name : Saul Tigh

Address : 6909 Colonial DriveOc Caprica, OR 97111

License No. : ODL #99199 DOB : 05/11/2250 Date of arrest : 08/12/2012 County of arrest : Clackamas Available dates : Preference: late morning or early afternoon 8/30. Other dates: anytime 9/4 or 9/5 or afternoon 9/7. Please forward any discoverable materials in your file to my office, including any reports or writings that any witness may rely on. Notice is hereby given that Petitioner intends to challenge the stop and investigation of Petitioner pursuant to Pooler v. MVD, 306 Or 47 (1988). Thank you for your assistance in this matter. Please contact me with any questions or concerns. Sincerely, Lisa J. Ludwig Attorney at Law

aPPENDIX B—SamPLE DmV HEarING rEqUEST



L I S A J. L U DW I G A T T O R N E Y A T L A W

8 1 1 S W N A I T O P A R K W A Y , S U I T E 5 0 0 P O R T L A N D , O R 9 7 2 0 4

TEL. 503-223-5570 FAX 503-721-9050 WEB www.ludwiglegaldefense.com

FACSIMILE TRANSMITTAL SHEET TO:

DMV Hearings Case Management

FROM:

Lisa Ludwig

COMPANY:

DATE:

11/5/2012 FAX NUMBER:

1-503-945-5521 TOTAL NO. OF PAGES INCLUDING COVER:

2 PHONE NUMBER:

CASE NO.

REGARDING:

Request for In Person DMV Hearing TYPE OF DOCUMENT:

URGENT FOR REVIEW PLEASE REPLY ORIGINAL UPON REQUEST

NOTES/COMMENTS:

Sending DMV hearing request for Saul Tigh. Please call me at 503-223-5570 with any questions or if you need additional information.

Thank you, Denise Magnus

DISCLAIMER This document may contain confidential information which is intended only for the individual or entity named above. The recipient is prohibited from reading, disseminating, copying, or distributing the information unless the recipient is the intended recipient, or the agent or employee of the intended recipient. Please notify the sender of this document immediately if it was transmitted in error, and immediately return all originals which were transmitted erroneously.



aPPENDIX C—Sr-22 DEfINITION



aPPENDIX D—SamPLE mOTION TO DISmISS BaSED ON SUCCESSfUL COmPLETION Of DIVErSION

Chapter 2

The Ten Commandments of DmV HearingsBEn EdEr

Thuemmel Uhle and EderPortland, Oregon

Chapter 2—The Ten Commandments of DMV Hearings




THE TEN COmmaNDmENTS Of DmV HEarINGS

1. The purpose of the DMV hearing is to prevent a license suspension, increase of insurance rates, and discovery and lock in the police officer to favorable evidence. Ninety-nine percent of the time, your client should hire you/an attorney to do the DMV hearing.

2. The hearing must be requested in writing within ten days of the breath test refusal/failure or urine test refusal. See ORS 813.40. Always ask about the date of arrest so you can request the hearing in time. You can do this before you get hired. (503) 945-5521 is the fax number where you can send your DMV request. Or do it online at https://www.oregondmv.com/SSL/IC_Hearing/request.htm.

The request must include the following of the client’s information:

a. Your full name.

b. Your complete mailing address.

c. Date of arrest.

d. Your Oregon driver license, permit, ID card or customer number (if you have one).

e. Your date of birth.

f. A telephone number (with area code) where you can be reached between 8 a.m. and 5 p.m. Monday through Friday.

g. A brief statement of the issues you intend to raise at the hearing.

h. The name, address, and telephone number of your attorney (if you will be represented by an attorney during the hearing process).

You have the right to be represented by an attorney at your own expense. You may represent yourself at the hearing. Legal aid organizations may be able to assist you if you have limited financial resources. The department will not be represented by an attorney at the hearing;

i. Dates and times that you (or your attorney) cannot appear at a hearing.

j. A request to have the hearing held in person, if desired.

k. A request for an interpreter (if you do not speak English and will need an interpreter to translate for you at the hearing).

You may call the DMV Hearings Case Management Unit at (503) 945-5545 to confirm receipt of your request. DMV is not responsible for requests that cannot be read when they are received or that are lost or misdirected during the transmission process.

3. You want to request an “in person” hearing so the officer has to show up in person. Make sure you request this in your notice.

4. Expand the scope of the hearing to challenging the reasonableness of the stop and the probable cause for the arrest, pursuant to Bish v. Motor Vehicles Division and Pooler v. Motor Vehicles Division. You might want to state other issues such as the right to communicate in your opening statement in your opening statement or in your request. You can also challenge all of the requirements under ORS 813 where the DMV has the burden of proof.

5. Treat every DMV hearing as a case that is going to go to trial. So you need to be aware of how to try DUII cases. Examine driving issues, field sobriety tests, things your client did well, how the breath test was conducted, etc.

6. Be familiar with the DOJ guide to Oregon implied consent hearings and OCDLA’s guide on DMV hearings.

https://www.oregondmv.com/SSL/IC_Hearing/request.htm



7. Examine your client’s paperwork to see if the correct boxes are checked. See Coutler v. DMV, 168 OR 442 (2000).

8. Did your client get a reasonable opportunity to communicate with counsel or others? See Moore v. MVD, 293 Or 715 (1982).

9. Did your client have the physical capacity to take the test? Cobine v. MVD, 102 Or App 17 (1990).

10. If you appeal, it must be filed in circuit court within 30 days of the written decision. See ORS 813.410(5)(7)(a).

Chapter 3

Suppression motionsBEn EdEr

Thuemmel Uhle and EderPortland, Oregon

Contents

I. Definition of Driving . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1

II. Anonymous 911 Calls as the Basis for the Stop . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–1

III. Drug DUIIs . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2

IV. Hit and Run for Damage to Fixtures. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–2

V. Entrance into the Home Issues . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3–3

Chapter 3—Suppression Motions




I. DEfINITION Of DrIVING

http://www.youtube.com/watch?v=xlA13VFSXTU.

A. Moe v. MVD, 133 Or App 75 (1995), tells us that a person drives a car within the DUII statute if a person operates, tows, moves. or otherwise propels it in any way.

B. State v. Bilsborrow, 230 Or App 413 (2009), affirms Moe that a vehicle must be in motion. A running/idling engine does not fit the definition of driving. Make a special jury instruction for this because jurors think it depends on the engine running, keys in ignition, or even sitting in the driver’s seat. Build your theory of defense around the definition.

C. Did your client move to the driver’s seat but then decide not to drive?

practicE tip: Argue that the state has not proven driving at judgment of acquittal (JOA) if the state’s case would require speculation as to if defendant actually drove a vehicle while under the influence. Be very careful if you call your client on a botched JOA because the court of appeals will review the record as a whole, not just the driving issue at the time of JOA.

D. In State v. Manzella, 306 Or 303 (1988), a police officer responding to a report of an accident found the defendant at a parking lot where the vehicles allegedly involved were parked. The police officer did not see the defendant drive, nor did he recall seeing defendant’s car at the scene of the accident. The state did not produce any witnesses who saw defendant driving. There was no physical evidence that defendant had been driving or that his car had been at the scene. Evidence of driving not corroborated so confession inadmissible.

practicE tip: At the DMV hearing, ask the witness if he/she ever saw the vehicle move because you want to have confidence in a no-driving defense. You can also ask at the motion to suppress if you didn’t get to have a DMV hearing. You may also want to ask questions about the car. Stick or automatic? When were statements about driving made? Were questions skipped from the interview report about driving? Isolate your main theory and tailor the cross examination to support your theory of defense.

practicE tip: Always visit the scene of the driving and of the stop. Take a camera with you.

F Examine the slope of the road if they say the vehicle was still in drive when your client was in the car.

F Did your client choose a safer place to pull over? How was the vehicle parked? How does the scene look compared to how the police described the area/driving?

F Drive the road to see if the report is accurate, the 911 call is accurate, etc.

F Was the witnessed driving reported in a private parking lot? Did the police arrest your client before any evidence that your client drove on a public road after arrest? Some apartments are not premises open to the public and have private property signs. Private property signs make great exhibit photos for a motion to suppress.

F Was the alcohol consumed after driving? Build your defense around the driving definition.

II. aNONYmOUS 911 CaLLS aS THE BaSIS fOr THE STOP

http://www.youtube.com/watch?v=iavZJB3N0YI.

If the person calls 911 to report your client’s driving, then the police must corroborate an indicium of reliability; otherwise, there is no justification to stop the client. State v. Black, 80 Or App 12 (1986). If you have an anonymous caller, look for things that are inconsistent with the information contained in

http://www.youtube.com/watch?v=xlA13VFSXTU

http://www.youtube.com/watch?v=iavZJB3N0YI



the call, and move to suppress the stop. Did the stopping officer know if the caller was named at the time of the stop? Black allows stop under reasonable suspicion standard it does not say that a named caller is probable cause. This is important for entrance into the home issues, discussed later.

III. DrUG DUIIS

http://www.youtube.com/watch?v=65vTMIMWaL8.

Drugs must be pled to be relevant. Can’t get a Miles instruction for drugs with alcohol unless the state puts on evidence that the drugs made client more susceptible to alcohol. Court reverses for new trial. State v. Stiles, 165 Or App 584 (2000). So look at the charging instrument/information and think about what evidence is admissible.

Did the state do an incomplete DRE? See State v. Aman, 194 Or App 463 (2004). What was in the urine test? What other medication was your client taking? Is the drug a scheduled controlled substance?

IV. HIT aND rUN fOr DamaGE TO fIXTUrES

http://www.youtube.com/watch?v=f6rmxyp3cCQ.

Is there any damage to the fixture or other vehicle? If no damage, then there is no obligation for your client to stop at the scene of the accident. Take pictures of the car and fixture.

A. Jasper v. MVD, 130 Or App 603 (1994), is the case for damage to fixtures.

B. ORS 133.310(1)(a) holds that, in order to arrest a person, a police officer must have probable cause that the person has committed the alleged crime. ORS 811.700, Failure to Perform Duties of a Driver (aka Hit and Run) When Property Damaged, holds as follows:

. . . .

(c) if the person is the driver of any vehicle involved in an accident resulting only in damages to fixtures or property legally upon or adjacent to a highway, the person shall do all of the following:

(A) take legal steps to notify the owner or person in charge of the property of such fact and of the driver’s name and address and of the registration number of the vehicle the driver is driving.

(B) Upon request and if available exhibit any document issued as official evidence of a grant of driving privileges to the driver.

There is not a provision that the defendant remain at the scene of an accident when involved in an accident resulting only in damages to fixtures, unlike when someone is injured, or to leave a note when a vehicle is damaged.

C. Seriously, there is no duty to remain at the scene after damaging a fixture, and the Court of Appeals goes out of its way to highlight this in Jasper.

Under ORS 811.700(1)(c), the driver of the vehicle involved in a one vehicle accident is under no duty to remain at the scene of the accident. Because [the police officer] knew that he was investigating a one vehicle, non-injury accident, his suspicion that petitioner had violated a duty under ORS 811.700 arguably did not provide grounds for a stop. However petitioner does not raise that issue, and its resolution is unnecessary to our disposition of the case.

Footnote 4 on page 608 of Jasper.



D. Did the police transport your client back to the scene of the accident?

ORS 131.615 holds:

Stopping of persons. (1) A peace officer who reasonably suspects that a person has committed or is about to commit a crime may stop the person and, after informing the person that the peace officer is a peace officer, make a reasonable inquiry.

(2) The detention and inquiry shall be conducted in the vicinity of the stop and for no longer than a reasonable time.

1. Jasper v. MVD, 130 Or App 603 (1994), holds that when the stop and detention of a person for a crime results in the person being transported away from the vicinity of the stop, the evidence exceeds the scope of the stop and should be suppressed.

Even assuming the propriety of the stop and the handcuffing under ORS 131.615(1), we conclude that under the circumstances, putting the hand-cuffed petitioner in the patrol car and transporting him three blocks exceeded the permissible scope of the stop, because the detention went beyond the vicinity of the stop. MVD argues that the “investigation required the officer to transport petitioner” to the accident scene and that location was in the vicinity of the stop. We disagree on both counts.

Id. at 608. This happens when your client is taken from his/her home to the accident scene.

E. Did your client go back to the scene or to the police department due to a threat from the police?

State v. Cohen, 203 Or App 92 (2005), tells us that despite the defendant’s consenting to give blood and urine, his consent was the product of an illegal threat. Suppression was required because the police officer did not have probable cause when he made the threat that led to defendant’s consent.

V. ENTraNCE INTO THE HOmE ISSUES

A. Be familiar with these cases before DMV hearings, and make sure you create a very tight record at the DMV.

http://www.youtube.com/watch?v=1bkYeaCuDtY.

Article I, Section 9, of the Oregon Constitution holds that:

No law shall violate the right of the people to be secure in their persons, houses, papers, effects against unreasonable search or seizure; and no warrant shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.

1. State v. Apodaca, 85 Or App 128 (1987). Door opened does not make private area not private. Police can’t enter home without a warrant to wake up sleeping defendant accused of DUII. Police can’t enter home to investigate accident under a community care taking–type theory.

2. State v. Somfleth, 168 Or App 414 (2000). Garage is curtilage. Consent gained after exploitation of observations made during trespass is not consent.

3. State v. Roberts, 75 Or App 292 (1985). Police can’t create exigencies and can’t enter home for alcohol dissipation unless it is shown that there wouldn’t be a warrant. Burden on the state. Imminent escape is required. Police must know constitutionally mandated procedures.

4. State v. Kruse, 220 Or App 38 (2008). Police must be able to demonstrate they couldn’t get a warrant before entering the home. Affirms Roberts as another example of the protection of being in your own home. This is the scariest part of Machuca because the per se exigency analysis may change these cases.



B. Did the police receive consent to enter from someone other than your client?

http://www.youtube.com/watch?v=65vTMIMWaL8.

1. State v. Ready, 148 Or App 149 (1997). Judge must make findings that person who gave consent to enter/search had actual authority. Not just that it was reasonable to assume the person did.

2. State v. Carsey, 295 Or 32 (1983), tells us that the person giving consent must have actual authority to consent to search. The illegal search is not rendered legal by a reasonable belief on the part of the police that the person had sufficient authority over the room to consent to a search.

practicE tip: Interview the person who answered the door. Did the police make a threat or order the person that answered the door to get our client to come outside? Police can’t create an agent to avoid protections of the home. Look to see if there was a threat made without probable cause under Cohen. Also, did the person giving consent have the authority to consent to the area searched? House mates shouldn’t be able to give consent to enter another house mates bedroom.

C. Warrant exceptions (other than probable cause plus exigency or consent).

The state has the burden to prove that an exception applies to a warrantless arrest. File a motion and an affidavit that the arrest was made without a warrant. Stops and arrests are constitutional seizures, and “a seizure without a warrant is per se unreasonable.” State v. Miller, 269 Or 328, 334 (1974).

1. Emergency exception requires probable cause and several other things. State v. Bridewell, 306 Or. 231, 235, 759 P.2d 1054 (1988), tells us that there must be a true emergency (not just the possibility of an emergency). We conclude that the Emergency Aid Doctrine provides an exception to the warrant requirement of Article I, section 9, when these conditions are met:

a. The police must have reasonable grounds to believe that there is an emergency and an immediate need for their assistance for the protection of life;

b. The emergency must be a true emergency—the officer’s good faith belief alone is insufficient (so the house better be on fire);

c. The search must not be primarily motivated by an intent to arrest or seize evidence.

d. The officer must reasonably suspect that the area or place to be searched is associated with the emergency and that, by making a warrantless entry, the officer will discover something that will alleviate the emergency. See Christenson, 181 Or App at 352, 45 P3d 511 (2002), for a comprehensive review of this body of law.

2. Welfare exception? There is no welfare exception in Oregon. State v. Goodall, 219 Or App 325 (2008). The context of ORS 133.033(2)(a) includes the provision in ORS 133.033(1) that those actions cannot be “expressly prohibited by law.”

3. Community care taking exception? There is no community care taking exception to Article I, section 9, of the Oregon Constitution. State v. Christenson, 181 Or App 345 (2002). Exceptions limited by Article 1, section 9. Reasonable suspicion is not enough.

4. Exigency? Police must be able to show they couldn’t get a warrant. Make sure you cross examine about absorption/distribution, plateau, and dissipation rates to show that alcohol is not a per se exigency and the police could get a warrant. (Although Machuca can really hurt this argument.) Police are trained to use the .015 dissipation per hour rule. This only applies when a person is actually dissipating make sure you create a record on how alcohol actually stays in your body for a long time. See Martinez-Alvarez.

5. Hot pursuit? Emphasis on the “hot.” It must be continuous and immediate. State v. Snow, 337 Or 219 (2004).



6. Officer safety exception. State v. Foster, 217 Or 1 (2009), holds that a police officer can’t just stare into bedroom window before entering a house for officer safety concerns. Test is if an average citizen could do it without being offensive. Court was not persuaded that it was a safety measure to make sure no weapons. If the police can see your client inside the house, they can probably just get a warrant. They can’t peer into other adjacent rooms to look for evidence of a crime under the officer safety exception.

Chapter 4

Common Defenses and Considerations related to Diversion or Pleading Guilty

richard E. OBErdOrfEr

Oberdorfer Law Firm LLCPortland, Oregon

Contents

I. Is the Client Diversion Eligible? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1

II. Is the Client a Good Diversion Candidate? . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1

III. Mechanics of Entering Diversion. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–1

IV. If Client Is Not Diversion Eligible—Trial or Plea? . . . . . . . . . . . . . . . . . . . . . . . . . 4–2

V. Trial . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2

VI. Be Kind . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2

VII. Be Realistic . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–2

VIII. Have a Theory . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–5

AppendixesA. Sample Defendant’s Sentencing Memorandum—No Colloquy . . . . . . . . . . . . . 4–9B. Sample Defendant’s Sentencing Memorandum—Sentencing Can Only Be Half

Condensed . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–17C. Sample Defendant’s Sentencing Memorandum—Uncounseled; Prior Out of

State Conviction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–19D. Sample Defendant’s Sentencing Memorandum—Uncounseled; Prior

Convictions . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–23E. Sample Defendant’s Motion to Enter DUII Diversion Program—Uncounseled . . . 4–27F. Sample Defendant’s Motion to Enter DUII Diversion Program—Late. . . . . . . . . 4–31G. Sample Affidavit in Support of Defendant’s Motion to Enter DUII Diversion

Program—Late; Missed Arraignment . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–33H. Sample Defendant’s Motion to Extend Diversion Period . . . . . . . . . . . . . . . . 4–35I. Sample Defendant’s Motion for Dismissal upon Successful Completion of

Diversion . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4–39J. Washington County Sentencing Guidelines . . . . . . . . . . . . . . . . . . . . . . . 4–41

Chapter 4—Common Defenses and Considerations Related to Diversion or Pleading Guilty




I. IS THE CLIENT DIVErSION ELIGIBLE?

A. “What’s your record” versus:

B. “How many times have you had handcuffs put on you?”

1. Prior drug treatment? Know what a Dunbrasky issue is.

2. Similar treatment program? Participation? State v. Dunbrasky, 122 Or App 90 (1993) (PCS methamphetamine conviction with SIS, court-ordered treatment; “In any case, a court may impose a milder sanction in exchange for the defendant’s agreement to address an underlying alcohol or drug problem. Because the first program addressed a substance abuse problem and was accepted by defendant in exchange for a milder sanction, it was sufficiently similar to the diversion to disqualify her from diversion in this case.”); State v. Lagrassa, 235 Or App 150 (2010) (same if drug/alcohol treatment was ordered through PPS); State v. Wright, 204 Or App 724 (2006) (same for noncriminal juvenile dependency case); State v. Young, 196 Or App 708 (2004) (same for non–driving related STOP program); State v. Bentley, 239 Or App 18 (2010) (even though PCS sentencing is now one-size-fits-all, defendant still got “benefit” by not risking PV sanctions); State v. Parker, 235 Or App 40 (2010) (where defendant blew off treatment, he did not “participate;” thus is still statutorily eligible for DUII diversion; however, remanded for judge to review discretionary reasons for permitting or denying diversion entry).

3. Prior DUII conviction—counseled? Barnes, 92 Or App 355 (1988).

a. The conviction must have been counseled and/or otherwise valid and voluntary for the reasons explained in City of Pendleton v. Standerfer, 297 Or 725 (1984), and State v. Probst, 339 Or 612 (2005).

If counseled, appropriate colloquy?

Burgett v. Texas, 389 US 109 (1967) (invalid convictions may not be used to support guilt or enhance sentencing); Stelts v. State, 299 Or 252 (1985) (DUII conviction void where court’s personal address to defendant did not include discussion of confrontation right).

b. Is state objecting? Ethics, perjury, and false swearing.

Do you disclose the problem?

c. CDL?

Do you disclose that problem?

II. IS THE CLIENT a GOOD DIVErSION CaNDIDaTE?

A. “Do you smoke pot?” Roommates? Are you around pot smoke regularly?

1. Physical characteristics/discussion of drinking history, attitudes.

2. Drink of choice—why it’s important. Drinking since arrest?

B. Anger at the police/investigation/case; bitterness; breath test result.

III. mECHaNICS Of ENTErING DIVErSION

A. Lengthy plea petition; online sources available at http://courts.oregon.gov/OJD/forms/pages/index.aspx.

1. Setting up ignition interlock device (IID) before you go to court!

2. Starting treatment right away—especially if currently abstinent.

3. Investigating the case, client’s permission.

B. “My lawyer has talked with me about the four affirmative obligations for DUII diversion.”

1. Filing fee.

http://courts.oregon.gov/OJD/forms/pages/index.aspx

http://courts.oregon.gov/OJD/forms/pages/index.aspx



2. Victim impact panel.

3. Alcohol evaluation and treatment.

4. IID on any “vehicle” during term of Diversion K (.025%, rolling tests, etc.).

C. Passive obligation: Complete abstinence from alcohol and “intoxicants” except for prescriptions and “sacramental wine given or provided as part of a religious rite or service,” or a “non-prescription drug that contains alcohol so long as taken in accordance with the directions” on the label—but no driving with booze/intoxicants on board, open containers.

Medical marijuana?

D. Keep court apprised of address—what to do for travelers?

IV. If CLIENT IS NOT DIVErSION ELIGIBLE—TrIaL Or PLEa?

A. Medical marijuana redux.

B. In some counties, it’s a no-brainer—e.g., does the county’s plea petition have language like: “I have been convicted/adjudicated of one or more misdemeanors, felonies, and/or Juvenile offenses in the past as follows: . . .”

Ethical obligations.

C. How did things go at DMV?

Reasons to plea: cheaper; starts ODL suspension immediately; control.

D. Why start treatment immediately?

Read your client. Explain the benefits. Let client make the decision.

E. Multnomah County’s “X-Plea” Program

If client is afraid of jail; has time on hands for community service.

Most common probation violation?

V. TrIaL

A. Know what you’re doing—consult with DUII regulars.

B. Be aware that you don’t need to be a DUII expert for some cases.

VI. BE KIND

A. Treat everyone with respect.

1. Court staff, client, opponent (judges go without saying, right?).

2. There are exceptions. Rarely. Is righteous indignation appropriate?

3. Above all else, be yourself.

B. Get to it—save time whenever possible.

VII. BE rEaLISTIC

A. Some folks should not be on a DUII jury.

B. The questionnaire—note those you are already inclined to challenge.

1. The government versus the citizen—do you want the government on your jury?

2. People working in a field sensitive to DUII.

3. People working in a field that does not encourage critical thinking.

C. The introductions—prep your client. First impressions count.



D. The judge’s questions—watch body language.

Keep in mind those who will be your for-cause challenges shortly.

E. The one time the defense gets to go first—your chance at voir dire.

1. Start with group questions—easy ones.

2. Use questions to make people confront their own biases/self-deceits.

3. Ask the prosecutor’s for-cause challenges and rehab ahead of time.

4. This is an adversary system, after all.

5. Know how to deal with premature judicial rehab.

F. Dealing with judicial time limits—preservation.

But bear in mind that unnecessarily long jury selection does the client no favors.

G. Challenges for cause.

Know State v. Carter, 205 Or App 460 (2009). During jury selection, the following colloquy occurred with prospective juror Henson, beginning with a discussion of his prior work in the State of Tennessee:

Q. [Defense counsel] What type of work were you doing in Tennessee?

A. I was like a cop (indiscernable).

Q. Cop.

A. Yeah.

Q. Is there anything about the work that’s going to impact your ability to sit in judgment in this case?

A. Probably not on that. I don’t like the drinking and drugs, I have a problem with that.

Q. Okay. But what about just your involvement with law enforcement that leads you to believe some people maybe at this stage are all guilty or people accused with crimes are all guilty or everyone lies, anything like that?

A. I think people on drugs will lie for their drugs. . . . Probably alcohol, too, because my wife is an alcoholic, I had problems over that. We were separated twice and I’m still dealing with that.

Q. What about the nature of the allegations of alleged sex crimes in this case, does that give you reasonable cause about your ability to be fair?

A. From what I heard so far, I would have to hear a lot of good stuff to probably change what I feel already.

Q. What does that mean? Tell me what that means.

A. From just what you’ve been talking about: A little bit of force, amount of drugs, whatever was involved in it.

Q. You said you would have to hear a lot of good stuff to change the way how you feel already. I guess my question is how do you feel already?

A. Well, I feel like he’s guilty. . . . I mean like I say, I haven’t heard all the other stuff, but I mean that’s just right off the bat how I feel, I mean but—



Q. And even though you haven’t heard any evidence and there is a presumption of innocen[ce], you still think that he’s more than likely guilty?

A. Yeah. I could—maybe I could change my mind, I don’t know, I would have to hear probably more to find out to see.

Q. Just a second. . . . Do you think it would be fair to have someone having the same thoughts that you’re having be on the jury?

A. Probably not, really.

Q. So you don’t think you could be fair?

A. No.

Defendant challenged Henson for cause. The prosecutor asked whether Henson understood that he would be asked to agree to follow the law, and Henson replied, “Yeah.” The prosecutor then explained that a juror is required to presume a defendant innocent until proved guilty beyond a reasonable doubt and then asked whether Henson could follow such an instruction. Henson replied, “Yeah, I could probably do that.”

The trial court then questioned Henson:

Q. I don’t want to beat a dead horse, but I want to make sure that you and I are on the same page. Just sitting and as a human being rather than even as a juror, just sitting and hearing everything you heard—well, he might well be guilty, but then you have to change your role. Now you become a juror, and the Constitution of the United States, which is the highest law we have, it’s a secular law, the way we have, says you have to as a juror start from the proposition that he’s not guilty, and force the state to move you to that he’s guilty with evidence beyond a reasonable doubt. And I will put it as clearly as I can. I personally oppose the death penalty, I think it’s a very significant waste of resources and I think it demeans the state of Oregon. I have signed more orders that people be put to death than all other judges in this county in history because that’s my job as opposed to my personal feelings. Okay. Now, can you kind of do the same thing I have to do sometimes and follow the law and what it says? And if it’s different than my personal feelings, I have to set my personal feelings aside, can you do that?

A. I guess I could try.”

The trial court said, “I think that’s all we can ask,” and denied defendant’s motion. Shortly thereafter, the court commented to defendant that, “you’re lucky Mr. Henson is not a leader.” Defendant renewed his motion to excuse Henson for cause. The trial court again denied the motion, commenting that Henson has “his own personal beliefs but he said he can set them aside, and I believe him.”

The state insists that we are in no position to declare an abuse of discretion, particularly in light of the trial court’s assessment that Henson “has his own personal beliefs but he said that he can set them aside, and I believe him.” We agree that the standard of review is deferential. But “deferential” does not mean “unbounded.” In this case, the trial court did remark that he believed Henson when Henson said that he could set aside his personal beliefs. The problem is that, as we have noted, Henson never said that he could do so. Moreover, the trial court itself remarked to defendant that “you’re lucky Mr. Henson is not a leader.” We are at a loss to understand what the trial court meant if it believed that Henson truly intended to “set aside his personal beliefs.”

We conclude that the trial court erred in denying defendant’s motion to excuse juror Henson for cause.

Reversed and remanded for new trial.



H. Preserve the error.

1. Be prepared to explain your peremptory challenges—why you were ultimately forced to accept objectionable juror.

2. Not too difficult in DUII cases, however. Lots of bad jurors out there.

a. Philosophical question: Why? Has drinking and driving gotten worse over the years, or is it something else?

b. In any event, bear in mind that we represent political pariahs.

i. Jury panel should have 18 members;

ii. And probably an alternate—mistrials and judicial economy. See, e.g., Caliendo v. Warden of California Men’s Colony, 365 F3d 691, 696–98 (9th Cir. 2004) (habeas petition granted where detective, who provided crucial testimony, had 20-minute conversation factually unrelated to trial with three jurors during a recess).

I. Be familiar with Batson challenges—how to, when, and why.

1. Prima facie; DA explanation; pretext.

2. State v. Ross, 154 Or App 121 (1998) (DUII conviction reversed where DA excused African-American jurors and judge relied on her personal knowledge of prosecutor (“I know [the prosecutor], and I know that he does not exclude jurors based on their race.”) in making assessment whether discrimination was purposeful).

J. Attitudes toward authority and critical thinking skills.

1. New issues: returning military service people.

2. Often not exposed by typical questionnaires.

3. Why it’s important.

K. Side note: Why, if you’re a DUII defense lawyer, you will be picking a lot of juries.

1. judicial economy and protecting the public fisc.

a. DA office politics—why it interferes with dispassionate case evaluation,

b. And the DA’s ability to protect the public fisc.

2. The legislature—why it interferes with the DA’s ability to save face and protect the public fisc.

How to combat this problem, is it worth it, is it changeable?

3. Effective representation for purposes of pleading/entering diversion.

How jury selection plays into that advocacy role.

VIII. HaVE a THEOrY

A. Does the expert help your theory?

State experts vs. defense experts: what’s the difference?

B. Specific types of experts and why/when you need them.

1. DRE exams—what urine tell us, and the problems of junk science.

2. Do you need an expert to expose the problems?



3. What’s in the public jurisprudence already: The Court of Appeals explained why “past drug use” and this type of urinalysis evidence should be excluded:

Clearly, whether defendant was impaired due to alcohol or drug consumption at the time of the accident was material to the state’s case. However, the trial court correctly accorded the urinalysis little probative value as to that question, because of the conceded lack of direct correlation between the urinalysis test results and impairment at the time of the accident. At most the evidence could properly be used to demonstrate that defendant had consumed drugs at some point before the accident. It could also be viewed as providing some slight corroboration of the officer’s observation of symptoms, e.g., red eyes and greenish tongue, that the officer associated with drug use. However, given the significant weight that a jury is likely to accord this type of evidence, the potential for prejudice here is high. Specifically, the jury might infer, from the very fact that it is being told that defendant tested “positive” for marijuana and methamphetamine after the accident, that there necessarily must be some correlation between the drugs in her urine and her physical or mental condition at the time of the accident. Alternatively, the jury might assume that because defendant had consumed drugs in the past, she was a reckless person and was likely to have been acting in a reckless manner at the time of the accident.

State v. Jayne, 173 Or App 533, 544 (2001) (emphasis in original).

C. What’s in your ability as a lawyer?

1. “Cross-examination is the greatest legal engine ever invented for the discovery of truth. You can do anything with a bayonet except sit on it. A lawyer can do anything with cross-examination if he is skillful enough not to impale his own cause upon it.” John Henry Wigmore.

But you can still use an expert to prepare (both scientific and legal expertise is helpful).

2. Breath testing—educate yourself:

a. About the particular machine’s effectiveness and foibles;

b. about alcohol’s effect on the human body.

3. Blood testing—educate yourself on difference between serum and whole blood testing, forensic and hospital test.

4. Extrapolating back—read Garriott’s.

a. Okay if offered as exculpatory evidence.

b. State v. Milstead, 57 Or App 658 (1982):

The state has the burden of proof in a criminal case, and a defendant has the right to make the state’s burden of proof as “heavy as possible by calling to the . . . attention [of the trier of fact] any fact which would raise a not completely unreasonable possibility . . .” inconsistent with guilt. See Byrd v. Lord Brothers, 256 Or. 421, 425, 473 P.2d 1018 (1970). Although Byrd was a civil case, we perceive no reason why its holding should not apply with equal force in criminal cases. The “fact” defendant seeks to prove is that, in the course of the state’s investigation of her condition immediately following her arrest, one of several tests made by the state produced a result consistent with her sobriety. The possibility that she was not intoxicated is clearly a subject on which she may produce evidence to rebut the state’s case. Certainly she can testify that, at the officer’s request, she submitted to a breathalyzer test and to her recollection of its result. It follows that the test result itself is admissible when offered to impeach the state’s case.



D. Why it’s important to get it right.

The part I took in defense of Cptn. Preston and the Soldiers, procured me anxiety, and obloquy enough. . . . Judgement of death against those soldiers would have been as foul a stain upon this country as the executions of the Quakers or Witches, anciently. As the evidence was, the verdict of the jury was exactly right.



aPPENDIX a—SamPLE DEfENDaNT’S SENTENCING mEmOraNDUm—NO COLLOqUY

PAGE 1 – DEFENDANT’S SENTENCING MEMORANDUM – NO COLLOQUY OBERDORFER LAW FIRM LLC 210 SW Morrison Street, Suite 600

Portland, OR 97204 Telephone 503-223-2313 Facsimile 503-243-3257 Email [email protected]

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

IN THE CIRCUIT COURT OF THE STATE OF OREGON

COUNTY OF WASHINGTON

STATE OF OREGON,

Plaintiff,

v.

JOHN DOE,

Defendant.

))))))))))

Case No.

DEFENDANT’S SENTENCING MEMORANDUM – NO COLLOQUY

oral argument requested

The state seeks to impose a lifetime license revocation using, in part, 1990 Clatsop

County plea for which the court transcript appears to have been destroyed and did not include, to

the best of defendant’s knowledge, an ORS 135.385 / Rule 11 colloquy, required by the Due

Process Guarantee of the 14th Amendment to the federal constitution. Boykin v. Alabama, 395

US 238 (1969); Stelts v. State, 299 Or 252, 261 (1985) (a conviction with insufficient colloquy

on the right to confrontation “is ‘void.’”).

I. COUNSELED PLEAS:1

Boykin v. Alabama, 395 U.S. 238, 89 S Ct 1709 (1969), and McCarthy v. United States,

394 U.S. 459, 89 S Ct 1166 (1969), set forth what procedural safeguards must be followed when

a defendant enters a guilty plea to a criminal charge, even when counseled. If these procedures

are not followed, the plea is invalid and may not be used to enhance defendant’s punishment or

as proof of an element of the offense. Burgett v. Texas, 389 US 109 (1967) (invalid convictions

may not be used to support guilt or enhance sentencing); Stelts v. State, 299 Or 252 (1985) (DUII

1 Thanks and acknowledgment are due to Mr. William Uhle, Esq., for providing virtually verbatim the law in this Supplement.





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

conviction void where court’s personal address to defendant did not include discussion of

confrontation right).

Stelts v. State, 299 Or 252 (1985), analyzed these U.S. Supreme Court decisions

regarding the procedure for obtaining guilty pleas and their validity as it applies to state criminal

convictions. The Supreme Court stated not only that the federal rules and procedures for

obtaining guilty pleas apply to the states via the Fourteenth Amendment to the U.S. Constitution,

but they also apply through ORS 135.385, the statute governing the acceptance of guilty pleas

for purposes of the Oregon Constitution.

In November, 1972, the Criminal Law Revision Commission submitted to the Legislative Assembly its final draft and report on the “proposed criminal procedure code.” As we have noted many times, the work of the commission is a valuable source of “legislative” history. See, for example, State v. Garcia, 288 Or 413, 416, 605 P2d 671 (1980). At pages 154-55, the commentary to the section that has been codified as ORS 135.385 states that the section is based on “Boykinv. Alabama.” The commentary further makes it clear that the section is also based on “McCarthy v. United States.” We conclude that ORS 135.385 was intended to lead a trial court through a catechism that would ensure that a defendant’s waiver of constitutionally valid plea of guilty.

Stelts v. State, supra, at 258-59. ORS 135.385 provides in pertinent part:

135.385 Defendant to be advised by court. (1) The court shall not accept a plea of guilty or no contest to a felony or other charge on which the defendant appears in person without first addressing the defendant personally and determining that the defendant understands the nature of the charge. (2) The court shall inform the defendant: (a) That by a plea of guilty or no contest the defendant waives the right: (A) To trial by jury; (B) Of confrontation; and (C) Against self-incrimination. (b) Of the maximum possible sentence on the charge, including the maximum possible sentence from consecutive sentences.

Likewise, Federal Rule of Criminal Procedure 11 provides:

(b) Considering and Accepting a Guilty or Nolo Contendere Plea.

(1) Advising and Questioning the Defendant.

Before the court accepts a plea of guilty or nolo contendere, the defendant may be placed under oath, and the court must address the defendant





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

personally in open court. During this address, the court must inform the defendant of, and determine that the defendant understands, the following:

(A) the government's right, in a prosecution for perjury or false statement, to use against the defendant any statement that the defendant gives under oath;

(B) the right to plead not guilty, or having already so pleaded, to persist in that plea;

(C) the right to a jury trial;

(D) the right to be represented by counsel -- and if necessary have the court appoint counsel -- at trial and at every other stage of the proceeding;

(E) the right at trial to confront and cross-examine adverse witnesses, to be protected from compelled self-incrimination, to testify and present evidence, and to compel the attendance of witnesses;

(F) the defendant's waiver of these trial rights if the court accepts a plea of guilty or nolo contendere;

(G) the nature of each charge to which the defendant is pleading;

(H) any maximum possible penalty, including imprisonment, fine, and term of supervised release;

(I) any mandatory minimum penalty;

(J) any applicable forfeiture;

(K) the court's authority to order restitution;

(L) the court's obligation to impose a special assessment;

(M) in determining a sentence, the court's obligation to calculate the applicable sentencing-guideline range and to consider that range, possible departures under the Sentencing Guidelines, and other sentencing factors under 18 U.S.C. § 3553(a); and

(N) the terms of any plea-agreement provision waiving the right to appeal or to collaterally attack the sentence.

(2) Ensuring That a Plea Is Voluntary.

Before accepting a plea of guilty or nolo contendere, the court must address the defendant personally in open court and determine that the plea is





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

voluntary and did not result from force, threats, or promises (other than promises in a plea agreement).

(3) Determining the Factual Basis for a Plea.

Before entering judgment on a guilty plea, the court must determine that there is a factual basis for the plea.

Rule 11 is the standard for measuring waiver of Mr. Doe’s federal rights, because

“The question of an effective waiver of a federal constitutional right in a proceeding is, of

course, governed by federal standards. * * * The dissenters in Boykin appraised the effect

of the decision as follows: ‘The Court thus in effect fastens upon the States, as a matter of

federal constitutional law, the rigid prophylactic requirements of Rule 11 of the Federal

Rules of Criminal Procedure.’ The majority did not disavow that characterization of the

effect of its opinion.” Stelts, 299 Or at 260.

Mr. Doe’s plea did not conform with either the federal due process requirement of a

personal address from the Court, nor the corollary ORS 135.385 personal address.2 It should not

be used to enhance his sentence, for the reasons explained herein.

Dated this 5th day of August, 2008.

OBERDORFER LAW FIRM LLC

Richard E. Oberdorfer, OSB 01371 Attorney for Defendant Trial Lawyer

2 For an idea of the specificity desired in the ORS 135.385 colloquy, the Stelts court found the “district court’s advice on self-incrimination * * * barely sufficient” on the following personal address to defendant: “You have the right to remain silent. No one can compel you to say anything. Anything you do say can be used in court to prove these charges.”





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

STAFF AFFIDAVIT IN SUPPORT OF MEMORANDUM

STATE OF OREGON ) ) ss.

County of Multnomah )

I, Robert M. Oberdorfer, being first duly sworn, do hereby depose and say:

1. On July 23, 2008, I spoke with the Clatsop County Transcript Coordinator

regarding Mr. Doe’s 1990 conviction from that county.

2. The clerk advised me that Mr. Doe’s sentencing and plea was transcribed by a

retired court reporter who used raw notes that only he could decipher. In retirement,

he no longer deciphers his notes. Moreover, some of his notes were damaged.

3. The transcriber’s notes are so unrecognizable that no other transcribing agency has

been able to decipher them; although the court has tried. The court has gone so far

as to ship the notes to a firm in Portland, which unfortunately failed in deciphering

the notes.

Signed and sworn this 5th day of August, 2008.

__________________________________Robert M. Oberdorfer

Signed and sworn to before me this 5th day of August, 2008.

__________________________________Signature of Notary





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

AFFIDAVIT OF COUNSEL IN SUPPORT OF MEMORANDUM



I, Richard E. Oberdorfer, being first duly sworn, do hereby depose and say:

1. Under no circumstances would I have advised a person in Mr. Doe’s situation in

1990 to enter a plea of guilty, or to proceed with anything other than a trial. The

potential repercussions down the road from a DUII conviction are simply too great;

his exposure at the time too high; and the option of global resolution of

misdemeanor charges too remote or impossible in light of prosecutor policy and the

legislative bar on plea bargaining for DUII charges.


__________________________________Richard E. Oberdorfer







1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

DEFENDANT’S AFFIDAVIT IN SUPPORT OF MEMORANDUM


County of Washington )

I, Jeffrey Eric Doe, being first duly sworn, do hereby depose and say that, to the best of

my knowledge and belief:

1. I have no memory of a judge advising me of the information referenced in this

memorandum in a personal colloquy related to my 1990 DUII convictions. Had I

been advised of those issues, including the collateral consequences of multiple

DUII convictions in a short period of time, I would have not pleaded guilty and

would instead have stood trial.


__________________________________Jeffrey Eric Doe







1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

CERTIFICATE OF SERVICE

I hereby certify that I shall serve, the foregoing Defendant’s Sentencing Memorandum along with supporting affidavit and materials on:

The Advocate for the State Washington County District Attorney’s Office

Justice Services Building 150 N First Avenue, Suite 300, MS40

Hillsboro, OR 97124-3002

by the following indicated method(s):

[ ] by MAILING full, true and correct copies in a sealed, postage paid envelope, addressed

as shown above, and deposited with the U.S. Postal Service at Portland, Oregon;

[X] by causing to be HAND-DELIVERED full, true and correct copies to the party above at

the time and place set for sentencing;

[ ] by FAXING full, true and correct copies to the parties at the facsimile number indicated

above.

DATED this 6th day of August, 2008.





aPPENDIX B—SamPLE DEfENDaNT’S SENTENCING mEmOraNDUm—SENTENCING CaN ONLY BE HaLf CONDENSED

PAGE 1 – DEFENDANT’S SENTENCING MEMORANDUM OBERDORFER LAW FIRM LLC 210 SW Morrison Street, Suite 600


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26


FOR THE COUNTY OF WASHINGTON

STATE OF OREGON,

Plaintiff,

v.

KURT M. DUBOWSKI,

Defendant.

))))))))))

Case No. D1234567T

DEFENDANT’S SENTENCING MEMORANDUM

SUMMARY

The maximum jail for a Class A misdemeanor probationary sentence is 6 months.

For a PV on a Class A misdemeanor that had received a probationary sentence, the maximum

jail term is 6 months, minus whatever jail was already-imposed as part of the original sentence.

Here, Mr. Dubowski was already sentenced to and served 70 days, meaning there are 180 days

minus 70 days remaining for a PV sanction. Thus, the maximum PV sanction is 110 days jail.

POINTS & AUTHORITIES

Pursuant to ORS 137.540(2), confinement to jail for misdemeanors may not “exceed one year

or one-half of the maximum period of confinement that could be imposed for the offense for

which the defendant is convicted, whichever is the lesser” when probation is imposed. ORS

137.540(2)(a) (emphasis supplied). The maximum sentence of imprisonment for a Class A

misdemeanor is one year. ORS 161.615(1). Thus, for a Class A misdemeanor when probation is

imposed, the maximum jail is 6 months.

///

///





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

For probation violations, ORS 137.545(5)(a) provides for only 2 possible jail sanctions for

revocation (one of which, section (B), does not apply to this case):

(A) If the execution of some other part of the sentence has been suspended, the court shall cause the rest of the sentence to be executed.

(B) If no other sentence has been imposed [thus rendering this section inapplicable to our case, as defendant had already been sentenced to 70-days jail upon the original conviction], the court may impose any other sentence which originally could have been imposed.

The most jail the court could have lawfully suspended at the time of sentencing was 6 months

(minus any jail actually imposed). Thus, ORS 137.545(5)(a)(A) provides that the maximum

sentence on a probation revocation for a Class A misdemeanor is 6 months with credit for time

served. Here, that amount is 110 days.

Respectfully submitted this 15th day of September, 2011.




By signing above I hereby certify that I served, on the date set forth above, the foregoing Defendant’s Sentencing Memorandum on the advocate for the state by providing a certified true copy thereto at the time and place set for sentencing.



aPPENDIX C—SamPLE DEfENDaNT’S SENTENCING mEmOraNDUm—UNCOUNSELED; PrIOr OUT Of STaTE CONVICTION



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26



STATE OF OREGON,

Plaintiff,

v.

H.P. LOVECRAFT,

Defendant.

))))))))))

Case No. D1234567T


BACKGROUND

The state seeks to impose second time DUII sentencing treatment pursuant to Washington

County Circuit Court DUII Sentencing Advisory Guidelines (Ex. 1) based on an out-of-state

uncounseled prior DUII conviction. Defendant should be sentenced as if this were a first DUII

conviction because (a) the same conduct in Oregon would have resulted in a first conviction

(defendant would have diverted his first DUII) and (b) uncounseled convictions cannot be used

to enhance sentence. United States v. Tucker, 404 US 443 (1972); Burgett v. Texas, 389 US 109

(1967).


I. Uncounseled conviction is not an appropriate basis for sentence enhancement.

“[U]nless an accused has ‘the guiding hand of counsel at every step in the proceedings

against him,’ * * * his conviction is not sufficiently reliable to support the severe sanction of

imprisonment.” City of Pendleton v. Standerfer, 297 Or 725, 728 (1984) (quoting Argersinger v.

Hamlin, 407 US 25 (1972)); United States v. Tucker, 404 US 443 (1972) (uncounseled

convictions cannot be used to enhance sentence); Burgett v. Texas, 389 US 109 (1967).





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Here, the Wyoming judgment (ex. 2) indicates defendant was pro se and “plead to the

sheet” at his first appearance. See ex. 2 at 1 (“THIS MATTER came before the Court…for an

Initial Appearance”; “The Defendant…was present in person and proceeded pro se.” In addition

to being uncounseled and thereby not permissible for sentence enhancement, it also appears

defendant was not advised of the risks of proceeding pro se. State v. Jackson, 172 Or App 414

(2001) (uncounseled conviction may not be used against defendant unless defendant admonished

of dangers of self-representation).

Jackson involved an insufficient admonishment of the dangers of self-representation, to

wit: “I understand there may be advantages to being counseled by an attorney and disadvantages

by self-representation. I understand there may be defenses available to me of which an attorney

could advise me.” 172 Or App at 416. As noted by the trial court:

It’s not enough for the court to say in a conclusory manner that there are risks, but the court must at least set forth what some of those risks are; and must warn the defendant of what the dangers are of self-representation, not just that there generally are dangers of self-representation.

172 Or App at 423-24.

In agreeing with the trial court, the Court of Appeals held:

[T]he court could properly find that, given the generalized language of the written waiver, defendant’s execution of those forms showed only that defendant knew, in some amorphous way, that there might be risks to self-representation, without any real understanding of what the particular risks might be.

172 Or App at 424-25. Accord State v. Massey, 160 Or App 197, 199 (1999) (refusing to infer a

knowing waiver from a defendant’s prior work as a paralegal, prior involvement in civil lawsuits,

and prior representation by several lawyers); Stelts v. State, 299 Or 252, 254-56 (1985)

(defendant’s comment to trial court that “he had seen courtroom scenes portrayed in movie and

television programs, namely, ‘Perry Mason’ and ‘Your Day in Court,’” did not provide basis “to

inform a person intelligently of a constitutional right”).; McCarthy v. United States, 394 U.S. 459

(1969); Boykin v. Alabama, 395 U.S. 238 (1969).





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

II. Equal protection and due process guarantees mean defendants may not be treated differently based on the geography of prior misconduct.

Defendant’s prior .11% BAC (see ex. 3) DUII would have been handled in Diversion,

had it occurred in Oregon. He would then be standing before the Court today looking at

Washington County’s First DUII conviction treatment pursuant to the Sentencing Advisory

Guidelines. He should be so treated today. His conduct is the same as an Oregon resident with a

prior DUII arrest handled through Diversion. The Equal Protection and Due Process Guarantees1

prohibit disparate treatment based on geography. Similarly situated Oregon residents would be

looking at a likely 2 day jail sentence – because defendant’s prior occurred out-of-state, the state

seeks to impose 30-60 days jail. That is not permissible. See, e.g., Shapiro v. Thompson, 394 US

618 (1969) (improper to deny government benefits to persons with less than a year of state

residence; scrutiny of disparate treatment for out-of-staters is “strict scrutiny”); Dunn v.

Blumstein, 405 US 330 (1972); Memorial Hospital v. Maricopa County, 415 US 250 (1974)

(trigger for strict scrutiny is “penalty” – denying medical care to out-of-state residents is

“penalty”).

Dated: OBERDORFER LAW FIRM LLC



By signature above I certify that I served the foregoing Defendant’s Sentencing Memorandum on the advocate for the state by providing a certified true copy thereto at the time and place set for sentencing.

1 “No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” U.S. Const., Amend XIV.



aPPENDIX D—SamPLE DEfENDaNT’S SENTENCING mEmOraNDUm—UNCOUNSELED; PrIOr CONVICTIONS



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26


FOR THE COUNTY OF MULTNOMAH

STATE OF OREGON,

Plaintiff,

v.

OTTO VON BISMARCK,

Defendant.

))))))))))

Case No. 1234567


BACKGROUND

The state seeks to impose a lifetime license revocation using two 1977 DUII prosecutions

for which no judgment copy has been provided and defendant does not believe involved counsel.


“[U]nless an accused has ‘the guiding hand of counsel at every step in the proceedings

against him,’ * * * his conviction is not sufficiently reliable to support the severe sanction of

imprisonment.” City of Pendleton v. Standerfer, 297 Or 725, 728 (1984) (quoting Argersinger v.

Hamlin, 407 US 25 (1972)); State v. Jackson, 172 Or App 414 (2001) (uncounseled conviction

may not be used against defendant unless defendant admonished of dangers of self-

representation); United States v. Tucker, 404 US 443 (1972) (uncounseled convictions cannot be

used to enhance sentence); Burgett v. Texas, 389 US 109 (1967).

///

///

///

///





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Jackson involved an insufficient admonishment of the dangers of self-representation, to

wit: “I understand there may be advantages to being counseled by an attorney and disadvantages

by self-representation. I understand there may be defenses available to me of which an attorney

could advise me.” 172 Or App at 416. As noted by the trial court:

It’s not enough for the court to say in a conclusory manner that there are risks, but the court must at least set forth what some of those risks are; and must warn the defendant of what the dangers are of self-representation, not just that there generally are dangers of self-representation.

172 Or App at 423-24.

In agreeing with the trial court, the Court of Appeals held:

[T]he court could properly find that, given the generalized language of the written waiver, defendant’s execution of those forms showed only that defendant knew, in some amorphous way, that there might be risks to self-representation, without any real understanding of what the particular risks might be.

172 Or App at 424-25. Accord State v. Massey, 160 Or App 197, 199 (1999) (refusing to infer a

knowing waiver from a defendant’s prior work as a paralegal, prior involvement in civil lawsuits,

and prior representation by several lawyers); Stelts v. State, 299 Or 252, 254-56 (1985)

(defendant’s comment to trial court that “he had seen courtroom scenes portrayed in movie and

television programs, namely, ‘Perry Mason’ and ‘Your Day in Court,’” did not provide basis “to

inform a person intelligently of a constitutional right”).; McCarthy v. United States, 394 U.S. 459

(1969); Boykin v. Alabama, 395 U.S. 238 (1969).

Respectfully submitted this 14th day of March, 2008.


Richard E. Oberdorfer, OSB 01371 Attorney for Defendant





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

AFFIDAVIT IN SUPPORT OF MOTION



I, Otto Von Bismarck, being first duly sworn, do hereby depose and say:

1. I do not recall any assistance from an attorney involved with my 1977 DUII

prosecutions.

Signed and sworn this 14th day of March, 2008.

__________________________________Jeffrey Robert Summers

Signed and sworn to before me this 14th day of March, 2008.






1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26


I hereby certify that I served, on the date set forth below, the foregoing Defendant’sSentencing Memorandum on:

Multnomah County District Attorney’s Office 1021 SW Fourth Avenue

Portland, OR 97204


[ ] by MAILING full, true and correct copies in a sealed, first-class postage paid envelope,

addressed as shown above, and deposited with the U.S. Postal Service;

[X] by causing to be HAND-DELIVERED full, true and correct copies to the party listed

above at the time and place set for hearing;


above.

DATED this 14th day of March, 2008.





aPPENDIX E—SamPLE DEfENDaNT’S mOTION TO ENTEr DUII DIVErSION PrOGram—UNCOUNSELED

PAGE 1 – DEFENDANT’S MOTION TO ENTER DUII DIVERSION PROGRAM OBERDORFER LAW FIRM LLC 210 SW Morrison Street, Suite 600


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26



STATE OF OREGON,

Plaintiff,

v.

CLARENCE DARROW,

Defendant.

))))))))))

Case No.

DEFENDANT’S MOTION TO ENTER DUII DIVERSION PROGRAM

oral argument requested if contested

UTCR 4.050 INFORMATION

Oral argument and a recorded evidentiary hearing are requested, 30 minutes estimated.

MOTION

Defendant respectfully moves for entry into the DUII diversion program. For any out-of-

state DUI conviction to be used against him in this context:

(a) the conviction must have been counseled and/or otherwise valid and voluntary for the

reasons explained in City of Pendleton v. Standerfer, 297 Or 725 (1984) and State v.

Probst, 339 Or 612 (2005); and

(b) the out-of-state statute must be the statutory counterpart to Oregon’s DUII statute as

explained in State v. Ortiz, 202 Or App 695 (2005).

ADDITIONAL POINTS & AUTHORITIES

State v. Jackson, 172 Or App 414 (2001) (insufficient admonishment of the dangers of self-representation, to wit: “I understand there may be advantages to being counseled by an attorney and disadvantages by self-representation. I understand there may be defenses available to me of which an attorney could advise me.” “[T]he court could properly find that, given the generalized language of the written waiver, defendant’s execution of those forms showed only that defendant knew, in some amorphous way, that there might be risks to self-representation, without any real understanding of what the particular risks might be.”)





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

State v. Massey, 160 Or App 197, 199 (1999) (refusing to infer valid waiver of right to counsel from a defendant’s prior work as a paralegal, prior involvement in civil lawsuits, and prior representation by several lawyers)

Stelts v. State, 299 Or 252, 254-56 (1985) (defendant’s comment to trial court that “he had seen courtroom scenes portrayed in movie and television programs, namely, ‘Perry Mason’ and ‘Your Day in Court,’” did not provide basis “to inform a person intelligently of a constitutional right”)

State v. Golden, 112 Or App 302 (1992) (in analyzing whether out-of-state statute is Oregon statutory counterpart, courts look to the language of the respective statutes, not the underlying behavior; “[a]n inquiry about criminal history is not an occasion to relitigate the facts underlying an out-of-state, or any, conviction.”)

Respectfully submitted this 10th day of August, 2006.







1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26


I hereby certify that I served, on the date set forth below, the foregoing Defendant’sMotion to Enter DUII Diversion Program on:

Washington County District Attorney’s Office 150 N. First Avenue, Suite 300 MS40

Hillsboro, OR 97124


[X] by MAILING full, true and correct copies in a sealed, first-class postage paid envelope,


[ ] by causing to be HAND-DELIVERED full, true and correct copies to the party listed

above at the time and place set for show-cause hearing;


above.

DATED this 10th day of August, 2006.





aPPENDIX f—SamPLE DEfENDaNT’S mOTION TO ENTEr DUII DIVErSION PrOGram—LaTE



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26



STATE OF OREGON,

Plaintiff,

v.

JANE SMITH ,

Defendant.

))))))))))

Case No.

DEFENDANT’S MOTION TO ENTER DUII DIVERSION PROGRAM

oral argument requested

UTCR 4.050 INFORMATION

Oral argument and a recorded hearing are requested with the DUII diversion court judge,

10 minutes estimated.

MOTION

Defendant respectfully moves for entry into the DUII diversion program as she is eligible

for that program for all the reasons discussed in ORS 813.215, and immediately after

withdrawing her diversion petition she realized that act was ill-advised, went against the decision

her husband and her had made as a family, and that she would both benefit from and be

amenable to the requirements of the diversion program.

Ms. Smith is 46 years old and this case presents her first brush with the law. This is not

an alcohol DUI, but rather a marijuana DRE charge. The decision to enter or reject diversion has

been a tortured one for Ms. Smith, and I am confident that with the soul-searching she has now

embarked on, she will do well in the diversion system. I ask that the court allow her to enter the

program.

///





1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

For these reasons, defendant asks that the court grant her motion.

Respectfully submitted this 30th day of April, 2007.




I hereby certify that I served, on the date set forth below, the foregoing Defendant’sMotion to Enter DUII Diversion Program and all attachments on:

Washington County District Attorney’s Office Justice Services Building

150 N First Avenue, Suite 300, MS40 Hillsboro, OR 97124-3002


[X] by MAILING full, true and correct copies in a sealed, first-class postage paid envelope,


[ ] by causing to be HAND-DELIVERED full, true and correct copies to the party listed

above at the time and place set for show-cause hearing;


above.

DATED this 30th day of April, 2007.





aPPENDIX G—SamPLE affIDaVIT IN SUPPOrT Of DEfENDaNT’S mOTION TO ENTEr DUII DIVErSION PrOGram—LaTE; mISSED arraIGNmENT

PAGE 1 – AFFIDAVIT IN SUPPORT OF DEFENDANT’S MOTION TO ENTER DUII DIVERSION PROGRAM

OBERDORFER LAW FIRM LLC 210 SW Morrison Street, Suite 600


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26



STATE OF OREGON,

Plaintiff,

v.

JANE DOE,

Defendant.

))))))))))

Case No. 1234567

AFFIDAVIT IN SUPPORT OF DEFENDANT’S MOTION TO ENTER DUII DIVERSION PROGRAM



I, Jane Doe, being first duly sworn, do hereby depose and say:

1. I missed my arraignment in this matter for the following reasons, which I am

respectfully asking the Court to consider good cause to allow my entry into the

DUII diversion program.

2. On my arraignment date, I left my home at 7:30 a.m. with a “Google maps” printout

that I believed would help me get to the right place, as I am unfamiliar with

Hillsboro.

3. I became hopelessly lost. As I did not have telephone contact information with me,

I returned home, got the court contact information from the internet, and telephoned

the court. I left a voice mail. Later, at about noon, I left a voice mail for the judge

who I understood had presided at my arraignment. I also telephoned my arresting

officer, Tualatin Police Officer Villa, who explained to me exactly how to get to the

Law Enforcement Center in Hillsboro.



PAGE 2 – AFFIDAVIT IN SUPPORT OF DEFENDANT’S MOTION TO ENTER DUII DIVERSION PROGRAM



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

4. I arrived at LEC the following morning and the clerk advised that a warrant had

already been issued for my arrest and I would need to turn myself in to jail. I asked

if I should turn myself into jail right then, but was told that if I did so I would have

to stay there overnight to be arraigned the following day at 3:00 p.m.

5. As the mother of a 16 year old girl, I was concerned about leaving her alone while I

was in jail (I am separated from my husband). However, my 18 year old son was

returning from China on July 4, 2010. Therefore, I decided I should wait until after

he was home (and available to supervise my daughter) to turn myself in.

6. On my way to the airport to pick up my son on July 4, 2010, I was stopped and

arrested pursuant to the warrant. My driver license had not been suspended as I

blew .00% BAC and did not refuse a urine test.

7. I am truly sorry for the inconvenience and inefficiency I caused in the prosecution

of this case. I respectfully ask that the court consider the reasons listed above as

“good cause” to allow my entry into the DUII Diversion program.

Sworn this day of August, 2010.

__________________________________Jane Doe

Signed and sworn to before me this day of August, 2010.




aPPENDIX H—SamPLE DEfENDaNT’S mOTION TO EXTEND DIVErSION PErIOD

PAGE 1 – DEFENDANT’S MOTION TO EXTEND DIVERSION PERIOD OBERDORFER LAW FIRM LLC 210 SW Morrison Street, Suite 600

Portland, OR 97204 Telephone 503-223-2313 Facsimile 503-243-3257

Email: [email protected]

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26


FOR THE COUNTY OF JACKSON

STATE OF OREGON,

Plaintiff,

v.

VIRGINIA WOOLF,

Defendant.

) ) ) ) ) ) ) ) ) )

Case No. 01234567MI DEFENDANT’S MOTION TO EXTEND DIVERSION PERIOD

Defendant respectfully moves for a 180 day extension of her diversion period, currently

scheduled to end March 7, 2008, pursuant to ORS 813.225, and for the reasons set forth below:

Defendant has made a good faith effort to complete the diversion conditions, as:

(1) her diversion filing fee is paid in full;

(2) on February 21, 2008, she successfully completed the Victim Impact Panel

(certificate enclosed); and

(3) she is actively enrolled in drug and alcohol treatment at Treatment Services

Northwest, 948 NE 102nd Avenue, Suite 100, Portland, Oregon, 97220, (503) 257-

0381, and will be able to complete a course of treatment within the 180 day extended

period.

Ms. Woolf apologizes for the delay. She has been overwhelmed by personal and work

challenges over the past year, but is confident she will be able to complete the remaining

treatment requirement during the requested extended period. Defendant understands that full

compliance during an extended period can result in a dismissal, while lack of compliance will

result in a conviction and sentencing.






1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

Defendant has not asked for or been granted any previous extension of the diversion

agreement under ORS 813.225.

This motion is filed in good faith and for no improper purpose.

Dated this 25th of February, 2008. OBERDORFER LAW FIRM LLC


AFFIDAVIT IN SUPPORT OF MOTIONS



I, Richard E. Oberdorfer, being first duly sworn, do hereby depose and say that to the

best of my knowledge and based on my investigation into this case:

1. To the extent the foregoing motion contains factual assertions, they are hereby

incorporated by reference as if fully stated herein.

2. The attached Victim Impact Panel Completion Certificate was personally provided

by defendant to my office on February 22, 2008.

Signed and sworn this 25th day of February, 2008.

__________________________________ Richard E. Oberdorfer, OSB 01371 Attorney for Defendant

Signed and sworn to before me this 25th day of February, 2008.

__________________________________ Signature of Notary






1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26


I hereby certify that I served, on the date set forth below, the foregoing Defendant’s Motion to Extend Diversion Period on:

Jackson County District Attorney’s Office 715 W. 10th Street

Medford, OR 97501 by the following indicated method(s):

[X] by MAILING full, true and correct copies in a sealed, postage paid envelope, addressed


[ ] by causing to be HAND-DELIVERED full, true and correct copies to the parties at the

addresses indicated above;


above.

DATED this 25th day of February, 2008.





aPPENDIX I—SamPLE DEfENDaNT’S mOTION fOr DISmISSaL UPON SUCCESSfUL COmPLETION Of DIVErSION

PAGE 1 – DEFENDANT’S MOTION FOR DISMISSAL UPON SUCCESSFUL COMPLETION OF DIVERSION



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26



STATE OF OREGON,

Plaintiff,

v.

KURT VONNEGUT,

Defendant.

)))))))))))

Case No. D1234567T

DEFENDANT’S MOTION FOR DISMISSAL UPON SUCCESSFUL COMPLETION OF DIVERSION

Pursuant to ORS 813.250, defendant respectfully moves the Court for its judgment

dismissing the DUII charge in this case with prejudice, as defendant has successfully complied

with and performed the conditions of the diversion agreement.

Respectfully submitted this 1st day of July, 2010.





PAGE 2 – DEFENDANT’S MOTION FOR DISMISSAL UPON SUCCESSFUL COMPLETION OF DIVERSION



1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26


I hereby certify that I served, on the date set forth below, the foregoing Defendant’sMotion for Dismissal Upon Successful Completion of Diversion on:

Washington County District Attorney’s Office Justice Services Building

150 N First Avenue, Suite 300, MS40 Hillsboro, OR 97124-3002


[ ] by MAILING full, true and correct copies in a sealed, postage paid envelope, addressed


[X] by causing to be HAND-DELIVERED full, true and correct copies to the parties at the

addresses indicated above;


above.

DATED this 1st day of July, 2010.





aPPENDIX J—waSHINGTON COUNTY SENTENCING GUIDELINES

Washington County Circuit Court DUll Sentencing Advisory Guidelines

In Washington County a defendant facing sentencing on a DUll charge could appear before any of our Judges. With the legislative change made to increase the penalty for the 4th DUII to a felony, the Judges felt it important to review our general sentencing practice for the nonfelony DUll cases. In order to be consistent with the legislative change to increase substantially the sanction for the felony DUll, it was determined that the misdemeanors should also reflect a graduated increase in sanctions with each additional DUII. These are advisory guidelines. Like any guidelines, they may be adjusted depending on the particular circumstance of the individual defendant. Not all misdemeanor DUII defendants are similarly situated. Someone with a recently completed Diversion facing a sentencing on a new DUII may receive a different range of sanctions from one with no prior diversion. The defendant on his or her second or third DUII conviction(s) more than 10 years ago maybe differently situated than the defendant with the DUII convictions occurring all within a short period of time or the defendant with drug convictions in between their DUII convictions. First DUII conviction Enhanced Bench Probation 2 days or 80 hours of community service. Second DUII conviction Enhanced Bench Probation 30 to 60 days in jail (programing depending on the circumstance of the particular defendant) Third DUII conviction Formal Probation 90 to 180 days in jail (programing depending on the circumstances of the particular defendant) All probations will have other conditions as appropriate. Judge Price will continue to require the reading fo the book Under the Influence.

defending duii cases in oregondefending duii cases in oregon v schedule 8:30 registration 9:00 the...

Documents