Johnson v. Driver and Motor Vehicles Services Div.

261 Or.App. 641
Court of Appeals of Oregon.
Brocklen N. JOHNSON, Petitioner–Appellant,
v.
DRIVER AND MOTOR VEHICLES SERVICES DIVISION (DMV), a division of the Department of Transportation, Respondent–Respondent.
11CV0577; A150353. | Argued and Submitted Dec. 6, 2012. | Decided March 26, 2014.

Synopsis
Background: Motorist filed petition for judicial review of decision of Driver and Motor Vehicle Services Division of the Department of Transportation (DMV), suspending his driver’s license after he refused to submit to a breath test when he was arrested for driving under the influence of intoxicants (DUII). The Circuit Court, Coos County, Paula M. Bechtold, J., affirmed, and motorist appealed.
 
[Holding:] The Court of Appeals, Armstrong, P.J., held that arresting officer’s jury duty was not an "official duty conflict" that would have allowed postponement of suspension hearing.
 
Reversed.
 

West Headnotes (2)

[1]

Automobiles
Administrative Procedure in General

Arresting police officer’s jury duty was not an "official duty conflict" that would have allowed postponement of Driver and Motor Vehicle Services Division (DMV) hearing on validity of suspension of motorist’s driving privileges, and thus hearing was required to be held within statutory time limits; jury duty was not an obligation that arose from officer’s position as a police officer. West’s Or.Rev. Stat. Ann. §§ 813.410, 813.440(1)(d).
Cases that cite this headnote

 

[2]

Automobiles
Administrative Procedure in General

A police officer’s "official duty conflict," allowing postponement of Driver and Motor Vehicle Services Division (DMV) hearing on validity of suspension of a motorist’s driving privileges, is a clash resulting from obligatory tasks connected with holding the position of a police officer; it is an obligatory task connected with the position of police officer that prevents the officer from appearing at the hearing. West’s Or.Rev. Stat. Ann. § 813.440(1)(d).
Cases that cite this headnote

 

Attorneys and Law Firms
John Henry Hingson, III, argued the cause and filed the briefs for appellant.
Rebecca M. Johansen, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before ARMSTRONG, Presiding Judge, and DUNCAN, Judge, and BREWER, Judge pro tempore.
Opinion
ARMSTRONG, P.J.

*642 The Driver and Motor Vehicle Services Division of the Oregon Department of Transportation (DMV) suspended petitioner’s driver’s license after he refused to submit to a breath test when he was arrested for driving under the influence of intoxicants (DUII). See ORS 813.410(1) (requiring DMV to suspend a person’s driving privileges if notified by police report under ORS 813.120 of the person’s refusal to take breath test unless, after hearing, DMV determines the suspension to be invalid). The circuit court affirmed the final order of suspension issued by an administrative law judge (ALJ), and petitioner appeals that judgment. We conclude that DMV erred in determining that the arresting officer’s jury duty was an "official duty conflict" justifying postponement of the suspension hearing under ORS 813.440(1)(d). Accordingly, we reverse petitioner’s license suspension. ORS 813.450(4)(a)(A); Hays v. DMV, 230 Or.App. 559, 563, 216 P.3d 902 (2009) (reversing suspension of driving privileges, citing principle that, when an administratively imposed penalty is based on a legally unauthorized procedure, the penalty is invalid).
 
The pertinent facts are not in dispute. Petitioner refused to submit to a breath test after being arrested for DUII; consequently, DMV proposed to suspend his driving privileges. ORS 813.410(1). Petitioner requested an administrative hearing to contest the validity of the proposed suspension, ORS 813.410(3), and the Office of Administrative Hearings (OAH) scheduled a hearing before an ALJ for July 5, 2011. OAH also issued a subpoena to the arresting officer to appear at the hearing.
 
On June 28, 2011, OAH was notified—via preprinted form—that the officer was unavailable to appear on July 5 due to jury duty in Benton County on that date.1 An ALJ from OAH subsequently issued an order concluding *643 that the officer’s inability to attend the hearing was "due to court[,] which constitutes grounds to reschedule under ORS 813.440(1)(d) and OAR 735–090–0120(4)" (footnotes omitted), and ordering that a hearing to determine the validity of the suspension be scheduled "as soon as practicable." The suspension of petitioner’s license was rescinded pending the outcome of the rescheduled hearing.
 
The rescheduled hearing took place on July 14, 2011, before another ALJ. After the hearing, the ALJ issued a final order affirming the suspension of petitioner’s license for three years. ORS 813.420(2); ORS 813.430(2). The final order concluded, among other things, that the hearing had been properly reset due to the officer’s scheduling conflict. Petitioner sought judicial review in circuit court, ORS 813.410(8), and the court affirmed the suspension. Petitioner appeals that judgment.
 
We directly review the underlying order to determine whether DMV erroneously interpreted a provision of law and whether the order is supported by substantial evidence. See ORS 813.450(4); Bianco v. DMV, 257 Or.App. 446, 448, 307 P.3d 470 (2013).
 
[1] A hearing to determine the validity of a suspension of an individual’s driver’s license must be held according to the time limits in ORS 813.410 unless one of the exceptions in ORS 813.440 applies.2 Walker v. DMV, 254 Or.App. 543, 545, 295 P.3d 167 (2013); ORS 813.440(1), (2); ORS 813.410(4)(e). The exception at issue in this case appears in ORS 813.440(1)(d), which provides, as relevant:
"Notwithstanding ORS 813.410, the Department of Transportation may provide a hearing to determine the validity of a suspension under ORS 813.410 only if the time requirements under ORS 813.410 could not be met because of any of the following:
"


"(d) The inability of a subpoenaed police officer to appear due to the officer’s illness, vacation or official duty conflicts. The department shall set forth by rule the conditions that constitute official duty conflicts."
*644 Emphasis added.) In accordance with the directive to the department to specify, by rule, the conditions that constitute "official duty conflicts," the department promulgated OAR 735–090–0120(4). That rule provides:
"An official duty conflict exists if the subpoenaed police officer is unable to attend the hearing due to any of the following conditions:
"(a) Community caretaking pursuant to ORS 133.033;
"(b) Court;
"(c) Hazardous or impeding travel conditions;
"(d) Participating in employer approved training;
"(e) Physical incapacity; or
"(f) Service in the U.S. Armed Forces, military reserves, National Guard or the organized militia."
As discussed, here, DMV determined that, because the subpoenaed officer was scheduled for jury duty on the same day as the suspension hearing, the hearing was properly rescheduled due to an "official duty conflict," viz., "court."
 
As both parties recognized at oral argument, the issue on appeal reduces to whether the rule as applied in these circumstances is inconsistent with the statutory meaning of "official duty conflicts" as used in ORS 813.440(1)(d). In other words, we must decide whether DMV erroneously construed "official duty conflicts" to encompass jury duty. See Coast Security Mortgage Corp. v. Real Estate Agency, 331 Or. 348, 354, 15 P.3d 29 (2000) ("This court reviews the agency decision concerning a ‘delegative term’ to determine whether it is within the range of discretion allowed by the more general policy of the statute."); Marolla v. DPSST, 245 Or.App. 226, 230, 263 P.3d 1034 (2011) ( "An administrative rule * * * must be consistent with the legislative directive; it exceeds the agency’s statutory authority if it ‘depart[s] from a legal standard expressed or implied in the particular law being administered, or [if it] contravene[s] some other applicable statute.’ " (Quoting Planned Parenthood Assn. v. Dept. of Human Res., 297 Or. 562, 565, 687 P.2d 785 (1984); brackets in Marolla.)). We conclude that it did.
 
*645 Petitioner’s argument reduces to the proposition that the legislature intended "official duty conflicts" under ORS 813.440(1)(d) to be limited to circumstances in which the officer is "conducting business as a police officer." We examine the applicable statutory wording in context to determine the legislature’s intent. Bergerson v. Salem–Keizer School District, 341 Or. 401, 413, 144 P.3d 918 (2006) ("Determining the general policy of a statute is a matter of statutory construction * * *.").
 
[2] The plain meaning of the text of subsection (1)(d) tends to support petitioner’s proposed construction. "Official duty" is an adjective phrase modifying the noun "conflicts." The adjective "official" means "belonging or relating to an office, position, or trust: connected with holding an office <d̃uties>." Webster’s Third New Int’l Dictionary 1567 (unabridged ed 2002). "Duty" refers to "obligatory tasks, conduct, service, or functions enjoined by order or usage according to rank, occupation, or profession." Id. at 705. Finally, "conflict" means "clash, competition, or mutual interference of opposing or incompatible forces or qualities (as ideas, interests, wills)." Id. at 476–77. Thus, "official duty conflicts" are clashes resulting from obligatory tasks connected with holding the position of a police officer. It follows that an official duty conflict as used in ORS 813.440(1)(d) is an obligatory task connected with the position of police officer that prevents the officer from appearing at the hearing.
 
DMV argues, however, that "official duty conflicts" may also be understood to mean "a condition that creates a legitimate conflict with the officer’s ‘official duty’ to attend the hearing" and, because that is a reasonable interpretation of the statute, including jury duty in the meaning of "official duty conflicts" does not exceed the legislative directive expressed in ORS 813.440(1)(d). In other words, in DMV’s view, "official duty conflicts" can be understood to include any conflict—whether or not related to the officer’s employment or duties as a police officer—that, by rule, DMV decides reasonably conflicts with the officer’s "official duty" to attend a license-suspension hearing.
 
We disagree. As discussed, ORS 813.440(1) sets forth valid reasons for DMV to postpone a license-suspension hearing ("Notwithstanding ORS 813.410, [DMV] may *646 provide a hearing to determine the validity of a suspension under ORS 813.410 only if the time requirements under ORS 813.410 could not be met because of any of the following:"). Paragraph (d) then lists one of those reasons as "[t]he inability of a subpoenaed police officer to appear [at the suspension hearing] due to the officer’s illness, vacation or official duty conflicts." (Emphasis added.) If, as DMV contends, "official duty" refers to the duty to appear at the hearing, then the statute becomes circular, viz., the hearing may be postponed if the officer is unable to appear at the hearing due to a conflict that prevents him from appearing at the hearing. As explained above, the grammatical structure of the sentence demonstrates that the phrase "official duty" modifies the noun "conflicts"; DMV’s reading rejects that view and proposes, instead, that "official duty" simply reiterates the subject of the exception—that is, the officer’s inability to appear at the hearing. That reading however, renders the words "official duty" redundant. As a matter of statutory construction, we assume that the legislature does not intend any portion of an enactment to be "meaningless surplusage." State v. Stamper, 197 Or.App. 413, 418, 106 P.3d 172, rev. den., 339 Or. 230, 119 P.3d 790 (2005).
 
Furthermore, under DMV’s proposed interpretation of "official duty conflicts," the words "illness" and "vacation" are also superfluous. The statute is written in the disjunctive—viz., "illness, vacation or official duty conflicts"—demonstrating that the legislature intended that any of the three categories would constitute a valid reason to reschedule a hearing. If, instead, the legislature intended "official duty conflicts" to encompass any circumstance that, in DMV’s view, reasonably interferes with an officer’s ability to attend the hearing, then the first two listed categories would be subsumed within the third and, therefore, unnecessary verbiage. Again, we are obliged, if possible, to construe a statute so as to give effect to all relevant provisions. ORS 174.010; State v. Mayes, 220 Or.App. 385, 389, 186 P.3d 293 (2008). In short, DMV’s interpretation of "official duty conflicts" is not a plausible reading of the text of the statute in context.3
 
*647 We also note that we have previously rejected DMV’s proposed reading of "official duty conflicts." In Blaisdell v. MVD, 145 Or.App. 468, 472, 929 P.2d 1073 (1996), the Motor Vehicle Division (MVD) urged us to construe "official duty conflicts" "to mean that the hearing is the official duty, and the conflict is anything that reasonably prevents the officer from complying with that duty." In that case, the officer did not appear at the suspension hearing because "his [private] vehicle had seized up and would not run." Id. at 470, 929 P.2d 1073 (internal quotations marks and brackets omitted). MVD determined that that circumstance constituted an official duty conflict under its rule, OAR 735–090–0120(4) (Nov 4, 1993), which justified postponement of the hearing. Id. at 470–72, 929 P.2d 1073.
 
Because MVD’s rule at that time simply provided a nonexclusive list of examples of official duty conflicts, it was necessary for us to resolve the case by determining the common characteristics of those examples, which then became the characteristics "constitut[ing] official duty conflicts" under the rule. Id. at 472, 929 P.2d 1073. Although one of those examples—"[i]nclement travel conditions"—supported MVD’s construction of official duty conflicts, the others, for example, "physical incapacity resulting from the performance of duties as a police officer," were explicitly inconsistent with that understanding. Id. at 472–73, 929 P.2d 1073. As we explained regarding that particular example, "If the rule were intended to work the way MVD claims that it does"—that is, to "cover any incapacitating ailment suffered by the officer," then the limitation contained in the rule—"resulting from the *648 performance of duties as a police officer," would be superfluous. Id. at 473, 929 P.2d 1073. (Emphasis in original.) We thus rejected MVD’s interpretation of its rule to include the officer’s car problems, concluding that "the examples [in the rule] cannot be reconciled with MVD’s understanding except by stripping them of any meaningful content." Id. at 474, 929 P.2d 1073. Although the usefulness of the Blaisdell analysis to this case is limited—among other things, as DMV points out, the rule has since been amended so that it now contains an exclusive list of specific conditions that constitute official duty conflicts, see ––– Or.App. at ––––, ––– P.3d at –––– – ––––—the ultimate flaw in DMV’s analysis is similar: If "official duty conflicts" has the meaning that DMV ascribes to it, then the other categories listed in the statute—illness and vacation—become devoid of any meaningful content.4
 
DMV also argues, alternatively, that jury duty qualifies as an "official duty" of the officer and, thus, DMV acted consistently with ORS 813.440(1)(d) in concluding that "official duty conflicts" includes jury duty. In support of that argument, DMV argues only that jury duty "is a public obligation of every citizen," compliance of which is "even more important" given a police officer’s status as a law enforcement officer. DMV does not argue, nor is there any evidence in the record indicating, that jury service was an obligation of petitioner’s position as a police officer. Although we can envision that there may be circumstances in which jury service is an obligation of a person’s employment, in the absence of any evidence in the record to that effect in this case, we reject DMV’s argument without further discussion.
 
In summary, we conclude that DMV erred in concluding that, because the arresting officer was called for jury duty on the day of the originally scheduled suspension hearing, the hearing was properly postponed due to an "official duty conflict" under ORS 813.440(1)(d). Accordingly, we set *649 aside petitioner’s license suspension. ORS 813.450(4)(a)(A); Hays, 230 Or.App. at 563, 216 P.3d 902.
 
Reversed.
 
Parallel Citations
2014 WL 1258331 (Or.App.)

Footnotes

1

The preprinted form provides spaces for the reporting agency to indicate the reason for the officer’s unavailability; in this case, the space next to the word "COURT" (listed under the category "OFFICIAL DUTY CONFLICT CHECKED BELOW (OAR 735–090–0120)") was checked and, in the place provided for explanation, a handwritten notation provided, "scheduled for jury duty." The form also indicated that the place and time of "COURT" was Benton County Circuit Court on July 5, 2011.

2

For a thorough discussion of the statutory scheme governing implied-consent hearings, see Bianco, 257 Or.App. at 452–56, 307 P.3d 470.

3

The parties do not provide any legislative history regarding the original enactment of the "official duty conflicts" exception in ORS 813.440(1)(d). Or. Laws 1993, ch. 600, § 2. That omission is ultimately of no import in this case because our analysis of the text and context of the provision is dispositive. See State v. Gaines, 346 Or. 160, 173, 206 P.3d 1042 (2009) ("When the text of a statute is truly capable of having only one meaning, no weight can be given to legislative history that suggests—or even confirms—that legislators intended something different."); State v. Kelly, 229 Or.App. 461, 466, 211 P.3d 932, rev. den., 347 Or. 446, 223 P.3d 1054 (2009) ("In some cases, the legislative history—however clearly it may express the legislature’s intentions—is worth precisely nothing, because the text of the statute is capable of one, and only one, reasonable construction.").
The parties do provide some very brief excerpts of the legislative history surrounding the 1999 amendment to ORS 813.440(1)(d). That amendment added the words "illness" and "vacation" to the first sentence of the subsection to read (as in its current form): "The inability of a subpoenaed police officer to appear due to the officer’s illness, vacation or official duty conflicts." Or. Laws 1999, ch. 831, § 1. We note that that change, and the accompanying legislative history proffered by the parties, appear to support our construction of the statute.

4

DMV argues that its subsequent amendment of the rule "demonstrates its intent to define official duty conflict more expansively than the Blaisdell court did." That may well be, but it is beside the point. The question is whether DMV’s "expansive" definition of official duty conflict as applied here exceeds the scope of the legislative directive. We conclude that it does.

 

End of Document

© 2014 Thomson Reuters. No claim to original U.S. Government Works.

 

How Clean Is Your Client’s Money?

More from  Lawyers Weekly USA

by Diana Digges
Lawyers Weekly USA
Feb. 2004

Gone are the days when a criminal defense attorney could accept a bag of cash from a client as a fee retainer – or even a check from the client’s grandma with assurances that the money was squeaky clean.

In the wake of the F. Lee Bailey fee forfeiture case, enforcement of the Money Laundering Control Act of 1986 can now be much stricter. The act gives the government the power to seize fees from attorneys if they are the fruit of illegal activities. The question created by the Bailey case is what constitutes tainted money?

“The answer to that question is markedly different now than just a year ago,” said John Henry Hingson, III, a sole practitioner in Oregon.

The precedent it established for pro-rated fee forfeitures has lawyers wondering just what constitutes due diligence.

“Lawyers are thirsting for guidelines to make sure they don’t cross the line. The line ought to be bright, but it is not,” said Hingson. “What has happened is that this shift has caused defenders to act more like inquisitors with their own clients. You have to run a paper trail two or three times back to make sure [the fee] is not washed money. Very few of us will accept cash any more.”

The ABA, through the chairman of the Criminal Justice Section, Albert Krieger, has been trying for years to get the Department of Justice to commit to a clear set of guidelines, but with little success.

The result is that attorneys are left in a bind: is it sufficient, as many lawyers still believe, to obtain the client’s assurance that the funds are not the fruit of some criminal enterprise? Or must they go further? And how far can they go without antagonizing the client?

“We’re just not getting answers,” said Irwin Schwartz, former president of the National Academy of Criminal Lawyers. “The code of professional responsibility requires that I represent my clients zealously. When a client comes in for representation, whether that’s someone on a marijuana charge or a senior corporate executive, the lawyer’s first job is to build trust and confidence. If you begin by cross-examining the client, it undercuts the attorney-client relationship.”

Although there are no reliable estimates of an increase in fee forfeiture cases, “the threat is real, and it has gotten worse,” according to Krieger.

“Steadily, we’ve seen a march of forfeitures starting from drug cases, moving into corporate cases, and now it’s a problem across the board,” said Schwartz.

The latest sector of the profession to feel its effects is the real estate bar. As the Department of Treasury seeks comments on money laundering regulations scheduled to be imposed on real estate transactions, attorneys in that practice area worry about increased due diligence, invasion of attorney-client privilege and the possibility of fee forfeitures.

“There’s no empirical data that a money laundering problem even exists in commercial real estate transactions,” said Kevin Shepherd, of the American College of Real Estate Lawyers. “On the basis of four appellate cases, the government wants to regulate a multi-trillion dollar industry. It doesn’t make sense. There will be dramatic consequences for lawyers if they run afoul of the regulations.”

The Bailey Alert
While attorneys in civil practice struggle with the “whiff of encroachment on attorney-client privilege,” as Shepherd puts it, their colleagues in the criminal defense bar have long been dealing with such constraints.

The most recent case to sound the alarm bell is U.S. v. McGorkle, which involved attorney F. Lee Bailey. After Bailey’s clients were found guilty of laundering proceeds of a fraudulent telemarketing scheme, an 11th Circuit judge ordered the forfeiture of $2 million in legal fees to Bailey, which had been placed in an offshore account.

Bailey has plenty of detractors in the bar. But many of them nevertheless express concern about the Feb. 18 decision. The court held that an attorney who, in the course of representing a client, discovers that the up-front fee was tainted is subject to forfeiture on a pro-rated basis. He may only keep that portion of the fees which were rendered for services while he met the “bona fide purchaser” test – a standard for demonstrating that the lawyer was, in fact, rendering legal services rather than participating in a money laundering scheme.

The court wrote:

“The point is this: a criminal defendant cannot pay an attorney for the rendition of future legal services with the expectation that the entire payment will be immune from forfeiture���For example, if an attorney receives an up-front payment of $5 million for his future legal services and the attorney loses his BFP status a week later (say, because the client is indicted, and the attorney learns additional information about his client’s guilt,) the attorney may keep only the reasonable value of his services prior to losing his BFP status; he may not keep the entire $5 million.”

The decision represents a crackdown on lawyers who directly or indirectly – knowingly or not – participate in money laundering. Attorneys complain that in the process, it creates a disincentive for finding out if a client’s fee is clean, thus making it easier for lawyers to stumble into wrongdoing.

Krieger argues that “a case like McGorkle gives so much power to the prosecution that it can destroy the private bar. Whether the fee is five million or $50,000 doesn’t matter. What Bailey did is what we all try to do – get paid up front. You do some preliminary vetting that leaves you satisfied the money is untainted. You then render service. As a result, you become aware of certain information that makes you know the money had a tainted provenance. And you’re asked why you didn’t inquire further in the beginning. This is a very dangerous situation for lawyers, and the courts are going to have to straighten it out.”

The dilemma, according to Kreiger, is that if a lawyer accepts a criminal case and, in the process of developing the case, realizes the client has been laundering money, he has two bad choices: Continue working the case knowing his fees could be seized or drop the case like a hot potato, and in so doing, signal his client’s guilt. The end result, critics say, could be a decline in private lawyers willing to take on criminal cases.

The Bailey case comes on the heels of several others that have alarmed defense attorneys in recent years. One of the most troubling (United States v. Ferguson) involved a Florida criminal defense attorney and former federal prosecutor. Donald Ferguson’s client wanted money for defense costs; Ferguson contacted a third party for assistance. He received four cash payments, filed the appropriate IRS forms for the money and was indicted under the “receiving and depositing” statute. He was the first lawyer prosecuted on the theory that in receiving a fee he engaged in money laundering.

The government’s position is that criminally derived funds can’t be used for any purpose; attorneys in the defense bar counter that blocking clients from hiring attorneys destroys the presumption of innocence and violates the accused’s Sixth Amendment right to counsel. The tension between the two positions was recognized when Congress passed an amendment to the 1986 Money Laundering Control Act recognizing a “safe harbor” provision for attorney fees, thus protecting the defendant’s right to an attorney.

In 1989, however, a pair of narrowly decided U.S. Supreme Court decisions, (Caplin & Drysdale v. United States and United States v. Monsanto) held that there was no exception for payment of attorney’s fees.

“There’s a lot of free-floating anxiety out there,” said David Smith, author of a treatise on forfeitures and a former associate director in the DOJ’s Asset Forfeiture Office. “I get a lot of calls from criminal defense attorneys who are worried about their fees, and mostly what I do is calm them down.”

“This Justice Department is hostile to defense attorneys – the most aggressive we’ve seen in a while,” he added. “There are efforts to undermine attorney-client privilege on a number of fronts.”

Smith believes that while the threat of fee forfeiture is minimal, the hostile environment created by the government has created a “bit of hysteria” within the criminal defense bar.

What Lawyers Can Do
In the current climate, lawyers have to be extremely careful regarding the origin of their fees, cautions Martin Weinberg, of the National Association of Criminal Defense Attorneys. “Too many lawyers simply believe that all of their relations to their clients are privileged, whereas in fact the courts have carved out financial transactions as a largely unprivileged domain and therefore susceptible to government subpoena.”

To demonstrate a good faith effort, experts suggest that attorneys:

Demand verification of the origins of the fees, particularly if they are in the form of cash or money orders.

“Obviously, if a kid comes into your office charged with drug importation and dumps an attach�� case with your $500,000 fee, alarm bells go off,” said Krieger. “But if he gives you a check from Grandma? It’s reasonable to say, give me some kind of proof of where the money came from. If Grandma just mortgaged the house, give me that information. If you borrowed it from a lender, give me that information. If they say it’s an inheritance or won it on the lottery, give me proof.”

Include a clause in your retainer agreement in which the client assures the money is clean. “I routinely include a clause, but sometimes that’s not enough,” said Hingson. “At times, I quote a fee that includes the money to hire a retired IRS criminal investigation division agent to assist me in assuring the bonafides of the fee.”

That, however, can backfire, points out Joel Hirschhorn, a Florida attorney and president of the American Board of Criminal Lawyers.

“Let’s say you come into my office, and I decide I’d like to represent you. But the first thing you have to prove to me is that the money for my fee did not come from ill-gotten gains. Oh, and by the way, you also need to pay me [in case the government tries to seize my fees.]”

That’s no way to develop trust in the attorney-client relationship, he said.

Examine the indictment and the dates for alleged illegal conduct.

“Probe the client about what assets they had before the indictment; look to those pre-indictment assets for payment of fees,” said Hirschhorn.

Pick up the phone and call a professor of ethics or senior practitioners. “The best way for an attorney to protect himself or herself is to demonstrate that if an alarm bell has gone off, it was not ignored,” said Schwartz, who routinely educates young lawyers on “self-defense.”

“I believe that if the lawyer can demonstrate that a good faith effort was made to keep both feet inside the line – wherever that line may be – he can protect himself before a jury.”

Be careful to avoid even the appearance of greed.

“Make sure your moral compass is pointed to true north. Make sure there’s no willful blindness; doctor your eyes,” said Hingson. “To make sure you don’t have blindness, let there be light. Put the ever-loving light on this money, and make sure it doesn’t have one iota of dirt on it.”

 

Meth charge dropped against man who sold steroids to Canby

Oregon live

By Rick Bella, The Oregonian
Published: March 25, 2013 at 3:38 PM

policestop.JPG

William Traverso Multnomah County Sheriff

 

A felony methamphetamine-possession case was dropped Monday against a man who earlier pleaded guilty to selling steroids to a Canby police officer.

Clackamas County Circuit Judge Jeffrey S. Jones granted a motion to dismiss the case against William Jake Traverso, saying the state took too long to bring the case to trial. The case, filed in October 2010, has been delayed for 23 months. Only five of those months appear to be justified, Jones said.

“Based on the record, we have a year and a half delay that appears to be unreasonable,” Jones said. “The case law requires me to grant the motion to dismiss.”

Defense attorney John Henry Hingson III, who filed the motion on Traverso’s behalf, declined to comment on Jones’ ruling. Deputy District Attorney Michael Y. Wu, who was prosecuting the case, also declined to comment.

According to court files, Traverso was arrested Oct. 1, 2010, by Canby police. He was charged with possessing methamphetamine, a Class C felony.

During the discovery phase of the case, when the prosecution and the defense gather and share evidence they could use at trial, Hingson filed motions requesting subpoenas for city of Canby records. After the motions were taken under advisement by Circuit Judge Kathie F. Steele, the case was not scheduled for “speedy trial,” as required by Oregon law.

Traverso, 42, is not entirely out of the woods, however. He still is facing unrelated charges of methamphetamine possession, attempting to elude a police officer, tampering with evidence, falsifying drug test results, of driving with a suspended license and driving uninsured.

In 2010, Traverso admitted that he sold steroids and human growth hormone to former Canby police officer Jason Deason. Traverso then cooperated with FBI agents in their subsequent inquiry, which put Deason in jail and led to the resignation of former Canby Police Chief Greg Kroeplin. For his cooperation, Traverso received a relatively lenient 15-day jail sentence, followed by 30 days electronic home detention and 24 months probation.

Rick Bella

Appeals court rules accused drunken driver ‘coerced’ into blood test

Oregon live

By Maxine Bernstein, The Oregonian
Published:Friday, October 02, 2009, 11:00 PM

policestop.JPG

Thomas Boyd/The Oregonian

Police and prosecutors say a court of appeals ruling will make it more difficult to investigate and prosecute suspected drunken drivers.

 

Although a man accused of drunken driving gave his consent to have his blood drawn for testing, the Oregon Court of Appeals ruled this week that the consent was coerced and should be suppressed.

In a 6-4 decision, the appellate court found that the man’s consent was not voluntary because he agreed after a police officer read him the penalties of not complying, as required by state law.

The court also ruled that the officer, who had probable cause to believe the driver was intoxicated, could have obtained a search warrant by phone without sacrificing evidence and should have done so.

Prosecutors and police say the ruling could significantly change how police investigate drunk driving cases, requiring officers to get a search warrant before every breath test, blood draw or urine test.

“It could pose an enormous challenge to DUII prosecution,” said Josh Marquis, Clatsop County district attorney. “The whole concept of the implied consent law is that driving is a privilege, not a right.”

The ruling throws into question the constitutionality of the state’s implied consent law which holds that licensed drivers will consent to a breath, blood or urine test if arrested on an accusation of driving under the influence of intoxicants. The law says refusal to take a test could be used as evidence in court, and lead to loss of license and fines.

Defense attorneys hailed the ruling as a victory for individual rights.

“This is a huge case. I applaud the majority opinion for its devotion to the fundamentals of constitutional law,” said Oregon City lawyer John Henry Hingson III, founding member of the National College for DUII Defense Inc., a non-profit organization that helps train attorneys.

State Attorney General John Kroger will petition the Oregon Supreme Court to review the decision, said spokesman Tony Green. “Given the significant on-the-ground impact of the ruling, we are working quickly on getting our appeal together.”

The case stemmed from a 2005 arrest of Thomas Gregory Machuca after an accident on Portland’s Southwest Naito Parkway. Machuca was injured and taken to Oregon Health Sciences University Hospital.

Portland Traffic Officer Joshua Ladd, finding probable cause to believe the driver was under the influence of intoxicants, went to the hospital around 2:10 a.m.

The officer noticed a very strong smell of alcohol in his emergency room. He explained why he was there, and told Machuca he was under arrest for driving under the influence of intoxicants and reckless driving. Ladd testified the defendant understood he’d been in a wreck, knew where he was, and why. Ladd read him his Miranda rights, and the state’s implied consent law, including the consequences he could face if he refused a blood draw. Machuca consented, and a nurse drew his blood at 3:18 a.m.

Machuca pushed to suppress the evidence, but the trial court judge denied his motion. Machuca entered a conditional guilty plea, reserving the right to appeal.

The state argued that Machuca gave consent, and evidence would have been lost if the officer had to wait for a search warrant.

The appellate court’s majority opinion cited a 28-year-old Oregon Supreme Court case State v. Newton, saying that a consent to search is “coerced by the fear of adverse consequences, and is ineffective to excuse” a search warrant. The majority also ruled there was no emergency to draw the blood without a search warrant, because the officer conceded he could have obtained a warrant by phone within one hour.

“The requirement to obtain a warrant is not excused by the mere fact that alcohol dissipates in the bloodstream over time,” Appellate Judge Timothy Sercombe wrote in the majority opinion.

Oregon Public Defender Peter Gartlan, who argued the appeal on Machuca’s behalf, said the state statute is drafted to coerce consent, and violates the constitutional protection against unreasonable search or seizure.

Appellate Judge Rick T.Haselton wrote in the dissenting opinion that the 28-year-old Newton case is not binding, has never been cited and was “patently wrong.” He cited the Catch-22 impact of the majority’s ruling: if an officer follows state statute, they’re being “coercive,” but if they don’t, they’re violating state law.

Machuca, 41, has another case to fight, charged Sept. 19 in Portland with drunk driving. He pleaded not guilty Sept. 22.

—  Maxine Bernstein.

 

Prosecutors implicate Gladstone police Sgt. Lynn Benton in murder-for-hire plot

Oregon live

 

By Steve Mayes, The Oregonian
Published:Thursday, December 15, 2011, 6:25 PM

campbell.JPG

Randy L. Rasmussen/The Oregonian

Susan Campbell, who is accused of participating in the murder of Deborah Higbee Benton, reacts after she was denied bail Thursday in a Clackamas Court.

 

Gladstone police Sgt. Lynn Benton agreed to pay a close friend $2,000 to kill his estranged wife, Clackamas County prosecutors said in court  Thursday, but the victim didn’t die easily, and the conspiracy quickly unraveled.

The friend, Susan Campbell, was arrested June 3 and charged with aggravated murder for “participating” in a murder-for-hire scheme. She made statements to police that implicated Benton, but until Thursday’s two-hour hearing, prosecutors had never disclosed her statements or said who they believed was behind the plot. Testimony Thursday revealed extensive details about the May 28 death of Gladstone beauty salon owner Deborah Higbee Benton and ranged from the tragic to the unexpected.

Police quickly homed in on Campbell after receiving tips that she had talked about killing Higbee Benton.

Benton, who remains on paid administrative leave, has not been charged with a crime and did not attend Thursday’s hearing. He hired Pat Birmingham, an experienced criminal defense attorney, who attended the hearing but declined to comment.

higbee-mug.jpg lynnebentonmug.jpg
Deborah Higbee Benton Lynn Benton

 

Prosecutors now face a dilemma. Unless Campbell agrees to testify against Benton, her statements cannot be used against the police sergeant.

It’s uncommon to name, but not indict, a criminal co-conspirator.

“The proceedings were somewhat unusual,” said John Henry Hingson III, a prominent defense attorney based in Oregon City. “But it’s an unusual case. I don’t think there was anything improper about it.”

The allegations against Benton, a former homicide investigator, also rippled through law-enforcement circles.

“I can’t remember a certified police officer ever accused of murdering anyone,” said Eriks Gabliks, director of the Oregon Department of Public Safety Standards and Training. “This is a first, as far as I know.”

Thursday’s hearing was a legal requirement. A jailed defendant has the right to a release hearing where the state must show there is a strong presumption of guilt. To support a charge of aggravated murder, the state had to show Campbell was involved in a murder-for-hire plot. Prosecutors still have the option of bringing charges against Benton at a later time.

Under questioning from prosecutor John Wentworth, lead investigator Brad Edwards, an Oregon City police detective, laid out the case against Campbell and Benton, based on his review of the evidence and two interviews he conducted with Benton the day after Higbee Benton’s death.

Benton and Higbee Benton married in 2010 but it was a troubled relationship, Edwards said. Benton, formerly Lynne Irene Benton, underwent a female-to-male sex change operation, something Higbee Benton originally supported, then opposed. That led Benton to move out of their home a month before the killing.

Benton also admitted physically abusing Higbee Benton, once pressing his forearm to her throat and pinning her against the wall, Edwards said, and expressed concern that he would be fired if the abuse was reported.

During his interview, Edwards noted scratches on Benton’s arms. Benton said he received them during a scuffle with a suspect two days earlier, but Benton made no mention of the scratches in a written report about the incident.

That was just one of many discrepancies in Benton’s story, Edwards said.

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Molly Young/The Oregonian

A memorial outside Gladstone Beauty Salon in June shows Debbie Lee Higbee Benton, the slain owner of the salon.

 

When asked for all cell phones in his possession, Benton said he had just one — his work phone. Then a phone in Benton’s jacket pocket rang. Benton gave the phone to Edwards, then buried his head in his hands and uttered an obscenity.

Investigators also found that the record of calls and text messages on May 28 — the day of the killing — had been erased from Benton’s and Campbell’s cellphones.

Benton and Campbell were under police surveillance. They were photographed meeting June 1 in a restaurant parking lot near Clackamas Town Center.

After the killing, a neighbor called police and reported her suspicions about Campbell’s role in the killing. The neighbor spoke with Campbell, and police recorded the conversation. Campbell discussed plans to cover up the crime and said that Benton wanted his wife dead, investigators said.

Campbell’s son told investigators he overheard Benton offering Campbell $2,000 to commit the killing, Edwards said.

Campbell never received the cash. According to investigators, the payment was supposed to come from $60,000 Higbee Benton kept in a bank safe deposit box. Police seized the keys to the lockbox and even if they had not, Higbee Benton had blocked Benton’s access to it.

Prosecutors also detailed how they believe the crime unfolded:

On May 28, Campbell went to Higbee Benton’s salon and shot her in the back with a .25 caliber handgun. But the shot wasn’t fatal. Campbell immediately called Benton, who was working an overtime shift at police headquarters. Investigators later found .25 caliber ammunition in Benton’s police locker.

Edwards stopped short of saying Benton went to the shop and beat Higbee Benton to death.

An autopsy cataloged the brutality: a dozen broken ribs, a lacerated liver, evidence of strangulation, including a fractured thorax. The medical examiner characterized it as an act of “kill, kill and overkill.”

Prosecutors met their burden to show a strong presumption of guilt, said Circuit Judge Kathie F. Steele, who ordered that Campbell remain in jail.

Benton remains on the Gladstone payroll. However that may change.

“If Sgt. Benton is named a person of interest in a crime, then that will be taken into consideration,” said Pete Boyce, Gladstone city administrator. Meanwhile, Boyce said Benton is currently under investigation for “unrelated allegations.” He said a due-process hearing is set for Tuesday.

Reporter Rick Bella contributed to this story.

Steve Mayes

 

Beaverton woman caught drunk in a parked car gets a new trial — this time for attempted DUII

Oregon live

By Maxine Bernstein, The Oregonian
Published: May 27, 2011 at 7:00 PM

drunkdriver.jpg

Oregonian file photo

Should a drunk driver in a parked car that may not have moved face a lesser offense of attempted driving under the influence of intoxicants, although there’s no such charge? The Oregon Court of Appeals recently ruled that a Beaverton Municipal Court erred in not allowing the jury to consider the lesser offense.

 

Say a woman gets into a car parked in a handicapped space at Fred Meyer and a police officer notices she doesn’t have a disabled parking permit, so he walks up and detects alcohol on the driver’s breath.

Should that woman, whose blood-alcohol level turns out to be .17 percent, twice the legal limit, be convicted of driving under the influence of intoxicants?

Or should the motorist be accused of attempted drunk driving, an offense that is not in the statutes but one her defense attorney wanted a jury to consider?

In a Beaverton municipal court case, prosecutors argued that attempted DUII is not a crime, and therefore, the jury should not consider it.

But criminal defense attorney John Henry Hingson III argued that the jury could conclude that the woman in the Beaverton case had not moved the vehicle. Never mind that there’s no statute establishing attempted drunk driving as a crime, Hingson argued that it should be considered as a lesser offense to driving under the influence of intoxicants.

The Oregon Court of Appeals this month agreed, sending the case back to Beaverton Municipal Court, finding that the court erred in not instructing the jury to consider attempted DUII as an offense.

“This is a landmark decision, and going to be a really big deal in the DUII defense world,” Hingson said. “I’ve been arguing this case for over 25 years, and judges looked at me like I’ve lost my marbles. This gives the jury an option in some cases to acquit on the DUII and convict on the lesser offense.”

Until now, motorists have only faced attempted DUII convictions in Oregon as part of negotiated plea agreements.

Oregon DMV’s computer doesn’t even recognize attempted DUII as an offense. It doesn’t bring mandatory suspension of a license, jail time or community service. In fact, it’s unclear what sentence would be imposed since it’s not spelled out in any statute.

While Hingson is celebrating the ruling, prosecutors are troubled.

“I heard about it, and I just sort of moaned,” said Josh Marquis, Clatsop County district attorney.

“I do know there’s considerable concern among prosecutors because a significant number of DUII’s are not ones where we’re catching them driving down the road. Usually people call in and say they’ve seen someone driving drunk. But by the time we get them, they’re stopped.”

Even though Oregon voters approved a ballot measure requiring a fourth DUII conviction to be treated as a felony, an attempted drunk driving conviction likely would not count.

“There’s many, many consequences to it, or should I say lack of consequences to it,” Marquis said.

“Clearly you can have an attempted crime, like attempted robbery, burglary and rape,” Marquis said. “But what’s next? Conspiracy DUII? Or how about attempted speeding? It does not seem very wise.”

At trial in the State v. Rita Jean Baty case that ended up before the Oregon Court of Appeals, a Beaverton officer wrote in his report that the motorist was “trying to back up.” But when shown photos of the scene, the officer could not explain why Baty’s car was pulled all the way forward in the parking spot. The officer, during cross-examination, said his phrase “attempting to back up” could mean she merely prepared to drive in reverse, but where the car had not moved.

“Viewed in the light most favorable to defendant, a juror could infer that (Officer Brian) McNeel actually saw defendant take steps preparatory to driving, but did not see her drive.”

Nationally, the courts are not in agreement on whether there’s such an offense as attempted drunk driving. A California court said there is; a Texas court, ruled no.

Tony Green, spokesman for the state Attorney General’s office, said his office is reviewing the ruling and hasn’t determined yet whether or not to challenge it.

Maxine Bernstein

Canby steroid supplier’s cooperation with FBI spreads investigation to other law enforcement agencies, including Portland

Oregon live

By Maxine Bernstein, The Oregonian
Published: Monday, May 03, 2010, 9:20 PM

 

william traverso

Bruce Ely/The OregonianCanby businessman William Jake Traverso (center) appeared in court in Clackamas County in March. Prosecutor Michael Wu is on the left, and Traverso’s attorney John Henry Hingson III is to the right.

 

A federal inquiry into steroid abuse by a Canby officer and a cover-up by his chief has stretched to other law enforcement agencies, thanks to the cooperation of man who supplied the steroids: Canby resident William J. Traverso, who has admitted to selling steroids to other officers in the Portland area.

Traverso, one of the central figures in the Canby steroid abuse inquiry that put former Officer Jason Deason in jail and spurred Chief Greg Kroeplin’s resignation, sought a lenient sentence Monday because he’s been helping the FBI.

The federal investigation already has prompted the resignation of four law enforcement officers who also have lost their police certification — Deason, Kroeplin, Washington County narcotics dog handler Jared Gochenour and West Linn Officer Jess Riley.

Riley, who formerly worked as a Milwaukie officer, resigned from West Linn on April 9.

The federal inquiry also has led to the questioning of Portland Sgt. Charles Brown, who lives in Canby and whose late father was a retired Canby school superintendent. Portland police have been ordered not to talk about the federal investigation involving Brown.

“I’m not at liberty to discuss anything,” Brown said Monday.

In a letter submitted to a Clackamas County judge Monday, FBI Special Agent Christopher Frazier said that Traverso has discussed his drug distribution activities in detail. “The public safety employees identified by Traverso included law enforcement officers, corrections officers, fire and rescue personnel and university public safety officers,” Frazier wrote,  “Several spin-off FBI public corruption investigations were initiated as a result of these allegations, and are ongoing.”

Traverso’s attorney John Henry Hingson III urged the court to reward his client for his cooperation by sentencing him to community service. He criticized the district attorney’s office and the City of Canby for letting Kroeplin resign with a payout and not face prosecution. He also urged the court to consider the danger Traverso could face behind bars. “Deason has one strike against him in jail. He’s an ex-cop,” Hingson said. “Traverso has two strikes against him. He’s a snitch, and he’s somebody that fingered cops.”

Hingson argued that the judge doesn’t have to hold a harsh sentence over his client’s head. He said Traverso is still willing to help “clean up” law enforcement in the Portland area.

“People who are using steroids and packing Glocks…” Hingson said, “I cannot think of a more frightening thing in terms of the safety of the public.” 

Hingson referred to a July 1985 shooting by then-Clackamas County jailer, Glenn D. Woolstrum, who was sentenced to 20 years in prison after he abducted, shot and paralyzed a woman who worked at a feed store at Wanker’s Corner. The woman had joked about deputies frequently using the store phone when Woolstrum asked to make a call. Woolstrum’s attorney argued that his client’s actions were “aberrant” acts caused by steroid use.

Clackamas County deputy district attorney Michael Wu argued that Traverso should spend 30 days in jail, saying Traverso’s neighbors suffered because of the around-the-clock drug activity at his home. The neighbors complained that they had been ignored by Canby police. Further, Traverso was arrested for driving high on methamphetamine as he was speeding to a September court hearing in this case, and agents learned he had bought stolen guns from two men who burglarized a home in Sherwood. He pleaded guilty to delivery of controlled substance, driving under the influence of intoxicants and theft. “Mr. Traverso’s crimes and effect on the community deserve a jail sanction,” Wu said.

Hingson said Traverso, 39, began using steroids for competitive body building, and he attained the title of “Mr. Oregon.” But the story of a local Canby boy making good was shattered when he cheated and used steroids to attain his bodybuilding physique, and became addicted to methamphetamine.

After federal agents searched Traverso’s home and his parents’ business in July 2008, Canby Landscape Supply, Traverso admitted to the FBI he helped Deason acquire steroids and human growth hormone. He also provided agents a letter Deason had written to him April 30, 2002 on Canby Police stationery, placing a steroid order. Traverso also told agents Deason had tipped him off to an internal police investigation into Deason’s steroid abuse in 2001, and coached Traverso on how to answer any police questions. If he was asked if he knew anything about Deason’s steroid use, Traverso was to answer, “No I don’t know, ask him yourself,” Deason told him, according to a FBI document.

Clackamas County Judge Douglas V. Van Dyck said Traverso must recognize the hurt he caused his community. He ordered Traverso to turn himself into the Clackamas County jail on Friday, for a 15-day jail sentence, followed by 30 days electronic home detention and 24 months probation.

The judge also applauded Traverso for helping to identify officers who were buying the illegal steroids. “Good, that’s the way it should be, because this community should stand no corruption in those charged to uphold the law,” the judge said. “When a police officer operates outside the law, one or two, it can undermine the noble work of thousands of officers.”

—  Maxine Bernstein

 

The downside of driving sober in Oregon

Oregon live

By Steve Duin, The Oregonian
on January 06, 2010 at 5:00 PM

 

The ring tone woke me — at 1:30 a.m. Christmas night — from such a leaden sleep that I slapped the alarm clock for five seconds before realizing my panic was misdirected.

My 22-year-old daughter, Christina, was calling me on the cell phone. She was at the Gemini Pub in Lake Oswego. She needed a ride home.

Fair enough. Whenever my twentysomething kids are celebrating near alcohol, I’m on 24-hour call. I hopped into the Subaru and headed into L.O. Christina was waiting in the parking lot between the Gemini and Lakeside Bicycles.

So were two Lake Oswego police patrol cars.

As I swung into the alley behind the pub, one squad car followed me onto A Street. If there’s nothing like the misery of knowing a cop with a radar gun has you dead to rights, it’s calming when you think you have nothing to worry about. I drove the speed limit, kept an eye out for crosswalks, remained in the center of my lane …

And somehow wasn’t surprised when the cop hit his dome lights just shy of Our Lady of the Lake.

The officer said he pulled me over because I was “weaving” over the center line. I ignored my first impulse — that is, to say, “You and I both know that’s not true” — and handed him my license and registration.

He was gone all of 90 seconds before he returned my papers and bolted back toward the Gemini. Twelve days later, I’m still not sure how I feel about the encounter.

By the time I got home that night, the initial irritation had been replaced by the consolation of the teachable moment: My daughter had just received another powerful reminder about those on the lookout should she ever hop into a car with someone who’s been drinking.

What’s more, if the L.O. cops are that hyperactive, it stands to reason that L.O. neighborhoods are much safer for several people I love.

“There’s a reason our crime stats are pretty low,” police Chief Dan Duncan said Tuesday. “We’re out there rolling rocks and stopping cars. It helps to keep the public safe and the drunks off the road.”

In that case, I reasoned, I can live with the inconvenience wrought by the bogus “weaving” gambit.

Then I spoke with John Henry Hingson.

The Oregon City attorney is the author of “How to Defend a Drunk-Driving Case,” and one of the area’s best at it. While he applauds the Oregon Supreme Court’s decision to rule “suspicionless roadblocks” unconstitutional, he thinks the courts have given police far too much leeway to “hook the innocent in their dragnet enterprise.”

In fact, Hingson said, had that L.O. cop smelled alcohol in the ol’ Subaru on Christmas night, the Oregon Court of Appeals says he has probable cause to arrest me for DUII.

(As Justice Susan Leeson said in her dissent to the court’s 1995 ruling, “Taxi drivers are among those who will be interested to learn that, if they are called to pick up an intoxicated passenger at a tavern in the early hours of the morning and … (fail) to signal a lane change, they are at risk for being arrested for DUII.”)

Duncan readily concedes that police have no shortage of legal ways to pull a driver to the curb: “If I followed you for three miles, I’m going to find two reasons to stop you. We pull a lot of bad guys off the street doing that.”

But he says it’s a stretch to think that taxi drivers and sleepless fathers have anything to worry about. Duncan believes you can trust the cops. Hingson suggests you can’t.

And I’m weaving somewhere in between. I’ve long known driving drunk is indefensible … but it’s a bit disconcerting to discover that, under Oregon law, driving stone-cold sober might have its own share of unintended consequences.

Steve Duin

Another view on DUII law

Oregon live

By Letters to the editor The Oregonian
Published: Wednesday, February 17, 2010, 6:30 AM

 

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

Small penalty for Mt. Hood Skibowl owner Kirk Hanna’s drunken hit-and-run better than nothing

Oregon liveBy Anna Griffin, The Oregonian
Published: Saturday, September 11, 2010, 5:51 PM

At first glance, Kirk Hanna’s recent run-in with the law looks like a clear case of rich-guy justice.

In court last month, the owner of Mt. Hood Skibowl admitted to driving drunk, hitting a bicyclist and then fleeing. For his crime, he’ll spend 30 days in jail, two years on probation and pay a $1,000 fine.

Bloggers and bicyclists, a few of whom want a boycott of Skibowl, say that’s far too lenient. Hanna, they note, is lucky he didn’t kill someone and could have faced more than five years behind bars.

They’re right to be angry: A quick scan of court records shows that Hanna has received at least a half-dozen speeding tickets since 1987, the year he bought Skibowl out of bankruptcy. He’s also been accused of drunken driving before — a 2003 DUII charge was dismissed when a witness showed up late for court, and two lesser charges in that incident were dismissed when Hanna reached a civil compromise with someone whose property he hit.

And yet if you look closer, this is less a case of a wealthy guy buying his way out of trouble and more an example of how complicated and consternating our legal system can be. It doesn’t matter what prosecutors and police know in their heart of hearts, just what they can prove in a court of law. Without Hanna’s assistance — however self-serving it might have been — they couldn’t prove anything.

“I think we got more than we could have if we’d gone to trial,” said Portland police Sgt. Todd Davis. “And I’m not even sure we could have gone to trial.”

***

On the morning of Tuesday, May 25, a lawyer showed up at the Portland Police Traffic Division bearing keys to an SUV. The attorney would not say whom she represented, but she told investigators where they could find a vehicle that had been involved in an accident.

Officers took one look at the Porsche Cayenne and knew: The vehicle had hit a bike, hard. The passenger-side mirror was gone, the windshield cracked and the hood dented. They got a search warrant, ran the license plate and discovered that the SUV belonged to Hanna, a real-estate developer, Skibowl owner and son of longtime Oregon car wash king Daniel Hanna.

Unsolved hit-and-runs are all too common in Portland. On a typical Monday morning, police go through about 100 reports from the weekend. They usually toss about half for lack of witnesses or obvious suspects.

Traffic officers had no reports that week matching the damage to the Cayenne. They called other agencies, looking for unsolved, potentially fatal, incidents but found nothing. Finally, figuring that police records often take a few days to process, they went through radio calls from the weekend and found one that seemed to match: Witnesses called 9-1-1 just after 2:30 a.m. May 23, a rainy Sunday, to report that a dark-colored vehicle had been weaving through traffic and struck a bicyclist on Southwest Macadam Avenue.

The victim, Robert Skof, 45, suffered bruises, cuts, a slight concussion and fractured bridgework in his mouth. Witnesses, including two Milwaukie teens headed home from the prom, all agreed that the driver who hit Skof had been going too fast and sped up even more after striking the bike.

But nobody got a good look at the person behind the wheel, or even the car itself. One prom-goer told police she thought the vehicle that hit Skof was an Audi station wagon.

At that point, with a few fuzzy facts, the lawyers closed the door and began an ethically tricky dance of discovery.

***

Prosecutors knew who owned the car, but not who was driving it. Hanna’s lawyers — by the end, he had three — had handed over the Cayenne but didn’t know whether police had reliable witnesses. (At first, they didn’t even know the victim’s name. The first thing Multnomah County Deputy District Attorney Jim Hayden did when he got the case was to ask a judge to seal the police report). Both sides were fishing for information.

In a black-and-white world, Hanna could and probably should have been charged with a felony — perhaps even second-degree assault, which Oregon statutes define as “recklessly causing serious physical injury to another by means of a deadly or dangerous weapon under circumstances manifesting extreme indifference to the value of human life.” That’s a Measure 11 crime, meaning it could carry a mandatory minimum prison sentence of 70 months.

In our Technicolor reality, however, prosecutors were unlikely to win a trial on second-degree assault charge – let alone get an indictment. For one thing, whether Skof’s injuries amounted to “serious” is debatable. For another, Hanna was unwilling to admit he was driving if he faced a felony. And without that admission, prosecutors had no case.

Hanna’s lead lawyer, John Henry Hingson III, declined an interview request, and Hayden, the prosecutor, wouldn’t talk about his private negotiations with defense attorneys. But you don’t need a law degree or an inside source to figure out why Hanna wanted to ensure that he faced only a misdemeanor: In addition to spending more time locked up, convicted felons cannot own firearms or explosives, the stuff ski resorts rely on to control avalanches.

So they compromised. Late last month, Hanna pleaded guilty to three misdemeanors: failing to perform his duties as a driver, driving under the influence of intoxicants and fourth-degree assault, a count that will disappear from his record if, as seems likely, his lawyers work out a civil settlement with Skof, whose lawyer did not return phone calls.

At the end of the day, did Hanna get a better deal because he had the money to hire savvy attorneys? Of course.

Was taking the keys to the cops a self-serving attempt to find out what they knew? Sure.

Is some justice better than none? Definitely.

Here’s the most important question: Will Kirk Hanna ever drink and drive again? Not if he has a shred of decency or common sense.

Next time he’ll probably still be well-off, but he might not be so lucky.

Anna Griffin