In a recent opinion piece in The Oregonian, well-known DUII defense lawyer John Henry Hingson III seems to imply Oregon appellate courts are endangering our civil liberties because of pressure to combat under-the-influence driving.
That conclusion was surprising, especially in view of a ruling handed down by the Court of Appeals last fall. Fortunately, the Supreme Court on Feb. 11 reversed the Court of Appeals and, among other things, concluded that the defendant had been validly arrested for DUII and was accurately informed of his rights and the prescribed consequences that would flow from a refusal to consent to the blood draw. To the extent that defendant’s decision to permit the blood draw was influenced, even significantly, by the statutory advice of rights and adverse consequences of refusing the blood draw, the implied consent law operated exactly as the Legislature intended.
Defense lawyers undoubtedly will not like the Supreme Court’s decision, but to those attempting to continue reducing Oregon deaths due to impaired drivers from a high of 288 in 1982 to 136 in 2008, it means a significant part of the state’s highway safety program has not been dealt a serious blow.
While the appeal was pending in the Supreme Court, the appeals court ruling resulted in almost 400 fewer implied consent suspension actions against impaired drivers in the last three months of 2009 compared with that period a year ago. As a committee, we applaud the Supreme Court’s decision. We would be hard-pressed to recall a proposal to aid enforcement and prosecution of DUII drivers that criminal defense lawyers have liked. After all, the job of a defense attorney, such as John Henry Hingson, is to create reasonable doubt and thus assist clients in avoiding conviction.
When you put together the laws passed in the past 20 years, you realize that even for a repeat impaired driver to go to prison in Oregon the driver must rack up four convictions within 10 years, and that does not count the diversion they now get every 15 years. Along the way, opportunity for treatment is part of every conviction process. It is not uncommon for prosecutors to see people with 10 or more DUIIs not eligible for prison because their convictions are spread out over a long impaired-driving career.
We have come a long way in combating the DUII problem, despite fewer police officers than 30 years ago. Back then a driver was not considered legally under the influence until he or she had a BAC of at least 0.15 percent. Despite improvements in our laws, you only need to read the headlines about fatal crashes caused by impaired drivers to know the problem remains. Today more drivers also are impaired on legal or illegal drugs, often mixed with alcohol. Unlike most states, it still is not a crime in Oregon to drive while impaired because you have abused one or more non-controlled drugs. The list of these drugs is long and continues to grow.
It is true that Mothers Against Drunk Driving helped force a shift in social consciousness in the 1980s that, among other things, resulted in creation of the Governor’s Advisory Committee on DUII and passage of the implied consent law jeopardized by the Court of Appeals decision but saved by the Supreme Court.
Too few people understand how difficult it is to convict impaired drivers or to carry out the penalties imposed. If the Court of Appeals decision had been upheld, hundreds of pending DUII cases would likely have been dismissed and jurors would never have learned a driver’s test results.
Defense lawyers probably will say the Supreme Court decision was another loss for civil liberties, but civil liberties are of no value to people for whom church bells toll because they died when an under-the-influence driver ignored the laws.
OREGON GOVERNOR’S ADVISORY COMMITTEE ON DUII