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