In the latest such decision, United States vs. Jones, announced on January 23, 2012, the US Supreme Court declared that law enforcement officers do conduct a search or seizure and must comply with the Fourth Amendment when they install a GPS tracking device to a suspect’s vehicle.

Jones was the target of an investigation by the FBI and local police. As part of their surveillance, law enforcement agents applied for a warrant authorizing installation of a GPS tracking device on the vehicle which was registered to Jones’s wife. However, the GPS device was not installed in compliance with the specific terms of the warrant.

During the following 4 weeks, the GPS device enabled law enforcement to gather an enormous quantity of data concerning Jones’s activities, which resulted in Jones being convicted of conspiracy to distribute cocaine, for which Jones received a sentence of life in prison.

Upon review, the United States Supreme Court held that the Constitutional right to be free from unreasonable searches and seizures does regulate the ability of law enforcement agents in regard to their installation of a GPS tracking device on a person’s vehicle as part of a criminal investigation.

In Jones, the Supreme Court traced the history of its previous decisions in which the Constitutional right to be free from unreasonable searches has been considered in various situations. One of the past decisions discussed by the Court in Jones is a case which the author of this blog entry personally litigated before the US Supreme Court as a new attorney more than a quarter century ago. In that case, the Court decided that a police officer does conduct a search under the Fourth Amendment when he makes an entry, although brief, into the passenger compartment of a motor vehicle in an effort to gather evidence. Interested readers are invited to read the entire decision in the case I litigated, which is officially published as New York vs. Class, 475 US 106 (1986).

We can be pleased that the Supreme Court has upheld our Constitutional right against unreasonable searches and seizures against encroachment on the part of law enforcement. Attorneys who work to protect the Fourth Amendment rights of their clients can find encouragement in the Court’s latest decision on this subject.

The entire decision of the US Supreme Court in Jones can be found by clicking the following link: www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Of course, one of the responsibilities of defense counsel is to present a strong defense at trial. Indeed, criminal defense attorneys find nothing more gratifying than hearing the words “Not Guilty” at the end of a hard-fought trial.

But the role of defense counsel goes much farther than winning cases at trial. A recent editorial in the New York Times declares: “Plea bargaining defines the criminal justice system: 97 percent of federal convictions and 94 percent of state convictions come through guilty pleas negotiated between prosecutors and offenders.” In order for defense counsel to get the best possible outcome for the client, the possibility of accomplishing a negotiated outcome can never be overlooked.

One of the fundamental ethical responsibilities of defense counsel is to make sure that the client is able to make informed and intelligent decisions during the course of a criminal prosecution. The accused has the absolute right to take his or her case to trial, or give up the right to trial and plead guilty. Ethical defense attorneys always realize that it is the client’s decision to take a case to trial, or not. It is unethical for an attorney to reject a pretrial offer without giving the client the opportunity to make a thoughtful decision as to the correct course of action to pursue.

Astonishingly, there have been cases in which defense attorneys have not conveyed pretrial offers to the client, or have not counseled the client sufficiently as to whether to accept the offer, thus preventing the client from being able to make an intelligent and knowing decision as to whether to plead guilty or go to trial.

This past week, the United States Supreme Court issued two powerful decisions rebuking the conduct of defense attorneys who failed to convey pretrial plea offers to their clients. In Missouri v. Frye, the prosecutor sent a letter to defense counsel, in a case involving a charge of diving with a revoked license, offering the defendant the opportunity to plead guilty and receive a sentence of 90 days in jail. Defense counsel did not inform the defendant about the offer, and the matter proceeded to trial, resulting in a 3-year prison sentence. In Lafler v. Cooper, the prosecutor offered the defendant a sentence of 51 to 85 months in prison in exchange for pleading guilty to a charge of assault with intent to murder. Defense counsel advised the defendant incorrectly that the defendant could not be convicted on that charge because the victim was shot below the waist. The defendant went to trial and was convicted, and received a mandatory prison sentence of 185 to 360 months. If defense counsel had correctly advised the defendant about the risks of trial, the defendant would have received far less punishment.

The US Supreme Court concluded that both of these defendants had been given ineffective assistance of counsel, greatly to their detriment. In strong language, the Court declared that defense counsel has the duty to convey pretrial offers to the accused, and to advise the accused concerning the risks of going to trial. Ultimately, it is the client who must make the difficult decision whether to take a case to trial, or not. But in order to make a knowing and intelligent decision, the accused must receive effective assistance of counsel.

The one thing that all these people have in common is that they are facing a criminal charge of some kind, and their ability to remain in the United States is placed in jeopardy as a result. During the three decades in which I have practiced law, I have seen an increasingly harsh attitude on the part of our government toward non-citizens who run afoul of our laws. It has never been easy to immigrate to the United States, but at the present time we are seeing a very harsh legal climate confronting the non-citizen.

Even though criminal defense attorneys are not normally specialists in the complexities of our country’s immigration laws, it is incumbent on criminal defense counsel to be aware of the myriad ways in which a criminal charge can place in jeopardy the client’s desire to remain in this country.

In the groundbreaking case of Padilla v. Kentucky, decided in 2010, the United States Supreme Court considered a situation in which a 40-year lawful permanent resident of the United States faced deportation arising from a conviction for drug distribution charges. Mr. Padilla had been instructed by his defense attorney not to worry about being deported as a result of his criminal prosecution, because he had resided lawfully in the United States for such an extended period of time. Unfortunately, for Mr. Padilla, it turned out that his defense attorney was incorrect, and the government commenced a deportation action as a result of his criminal conviction. Mr. Padilla took his case all the way to the United States Supreme Court, contending that he did not receive effective assistance of counsel, arising from his attorney’s failure to warn him concerning the immigration consequences of his prosecution. The Supreme Court agreed with Mr. Padilla, and held that criminal defense counsel cannot be oblivious to the immigration consequences of a criminal prosecution.

The teaching of the Padilla case is clear: even though criminal defense counsel may not be an expert on immigration law, it behooves defense counsel to alert to the immigration consequences that may arise as a result of criminal prosecution. It has long been a standard practice of our law office, many years before Padilla, to consult with immigration counsel and acquire guidance as to how our client’s pending criminal charge can adversely impact the client’s immigration situation. In some cases, we have found that the potential immigration jeopardy facing the client can actually be leveraged in the client’s favor, resulting in a successful outcome for the client.

Even a person whose DUI case was dismissed may face problems entering Canada. If you are seeking to enter Canada and you had a DUI charge, you should be forewarned that you may encounter trouble at the border.

In the United States, we are frequently able to accomplish dismissal of a DUI charge when a client successfully completes a Diversion program. Some States (though not Oregon) allow DUI charges to be resolved with a non-criminal infraction.

Do not assume that such an outcome will satisfy the Canadian authorities. Contact the Canadian Consulate. Canada has a procedure by which a person seeking to enter Canada can obtain a certificate of rehabilitation, which can be presented at the border.

These and other important rights are spelled out in the United States Constitution, the Constitution of the various States, as well as statutes and other laws that have been passed by the Congress and the State legislatures.

The responsibility of our court system is to make sure that our rights are safeguarded. In practice, the only way that a person’s rights will truly be respected is when individuals whose legal rights are in danger of being transgressed place their matter in the care of legal counsel.

Our system is an adversarial system. This means that a person who is accused of committing a crime is up against a prosecuting attorney who reports to work every day with the mission of holding individuals accountable for violating the law. The prosecutors work closely with the police and other law enforcement officers in doing their work. On the other side is the defense attorney, who is charged with the mission of ensuring that the accused is treated fairly, and that the system respects the important Constitutional rights that protect us all.

The important thing to realize about our Constitutional rights is that our legal system will protect our rights only when we stand up and insist that our rights be protected. Any of our rights can be waived if we are not careful. For example, if a police officer comes to your home asking to conduct a search, you normally have the right to say “no, not without a search warrant”. Or if a police officer seeks to question you about suspected criminal activity, you have the right to say “no, not without a defense lawyer at my side.” If you assert your rights, you have protection from the legal system. If you waive your rights, you may live to regret it.

Any person facing a criminal charge or a criminal investigation should contact legal counsel immediately. That is the only way you can have confidence that your rights will be protected.

First, in some cases, a person convicted of a felony can sometimes get a conviction set aside. The Motion to Set Aside is commonly referred to as expungement. The statute which governs the Motion to Set Aside is ORS 137.225. You can read the statute yourself by clicking this link: www.leg.state.or.us/ors/vol4.html Some felonies qualify for expungement and others do not. For example, convictions for sex crimes and class A felonies never qualify while virtually all class C felonies do. There are also strict waiting periods.

Second, if not eligible for expungement, a convicted felon might consider seeking a Pardon from the Governor. Pardons are seldom granted, but this is an option for those who present special merit. The provisions for seeking a Pardon from the Governor are outlined in Article V, Section 14 of the Oregon Constitution, as well as ORS 144.649 through 144.670.

The benefit of a successful Motion to Set Aside or a Governor’s Pardon is that the criminal conviction is erased, and the person will therefore be legal to possess a firearm as a matter of both Oregon and Federal law.

The third option is to utilize a statutory provision under Oregon law that allows a convicted felon to regain his right to possess a firearm. Please note that this statutory provision only applies to Oregon’s laws regarding firearms. Even if a person uses this statutory provision concerning retaining of a felon’s right to possess a firearm under Oregon law, it will still be illegal to possess a firearm as a matter of Federal law.

Prior to the recent amendment, the only circumstances in which a person convicted of a class B felony could accomplish expungement was in the case of a conviction for Possession or Delivery of Marijuana.  All other convictions for class B felonies were disqualified from eligibility for expungement.

Thanks to the latest amendment to Oregon’s Expungement Law, defendants convicted of class B non-person felonies such as Possession of Schedule I Controlled Substances, Delivery of Schedule II Controlled Substances, and Aggravated Theft in the First Degree, may now qualify for expungement under certain circumstances.  The principal difference in the eligibility requirements for these crimes is that a person seeking to expunge a class B felony must satisfy a 20-year waiting period from the date of the conviction, and the person must not have had any subsequent criminal convictions or arrests.

Clearly, the eligibility requirements which apply to the expungement of class B felonies are far more exacting than the eligibility requirements for other crimes.  A person convicted of a class C felony or a misdemeanor only has to satisfy a waiting period of as little as 3 years from the date of the conviction, and must not have had any other conviction (excluding a traffic violation) within the 10 years prior to filing the expungement motion.

This being said, it is indeed a positive sign that the Oregon Legislature has opened up the eligibility, even in a small way, for persons who have been convicted of a class B felony.  Hopefully, the next session of the Legislature will build on the latest legislation and open up the eligibility even further for individuals who do not qualify for expungement under current law.

If you believe that Oregon’s Expungement Law should be expanded to cover persons who currently do not qualify, you should contact your local elected officials.  The Legislature has the power to expand the scope of Oregon’s Expungement Law, and if enough people show interest in such reform, we might accomplish further progress.

If you or anyone you know is interested in legal representation for a possible expungement, please contact our office.  We are always glad to help.

One example includes HB2103, which prohibits any person who enters the DUII Diversion Program on or after June 23, 2011, from using alcohol except for purposes of religious sacrament while in Diversion.

Another example is HB3075, which requires any individual who enters the DUII Diversion Program on or after January 1, 2012, to install an ignition interlock device (IID) as a condition of participating in Diversion.

The only lightening up of consequences for the crime of DUII is found in HB2702, which prohibits the court from denying a petition to enter the DUII Diversion Program on the ground that the applicant is in active military service.

We have helped many clients facing charges of DUII.  Any person who is facing a charge of Driving Under the Influence of Intoxicants (DUII) should consult a qualified attorney immediately.  There is much that an attorney can do for a person facing a charge of DUII.

There are also bills that propose reclassifying certain drug crimes, which will impact on expungement law and practice.

Relevant bills include HB 2673, HB 2674, HB 2675, and HB 2698.

There is no guarantee that Oregon’s Expungement Law will continue in its current form.

Anyone who qualifies for expungement under current law should proceed with seeking expungement immediately.

Year in, year out, the most frequent type of matter handled in our law office is a charge of Driving Under the Influence of Intoxicants (DUII). When a person gets a charge of DUII, there is often a feeling of hopelessness, anger, and frustration. However, DUII’s can be defended successfully.

Proactive and resourceful advocacy on behalf of client paved the way to the State’s dismissal of our client’s DUII charge.

Client W was discovered in his truck, parked off the side of a roadway, sound asleep. He was several hundred miles from home, and appeared intoxicated to the police officer. He made incriminating statements, and failed the field sobriety tests. I challenged the client’s suspension pursuant to Oregon’s Implied Consent law, and was able to lay the groundwork for a successful defense at trial. Indeed, the work that I did at the client’s administrative hearing was instrumental in enabling me to persuade the District Attorney to dismiss the criminal charge without going to trial.

The police thought our client was intoxicated, but we were able to demonstrate that the client was suffering from effects of a brain injury.

Client B was pulled over for traffic infractions, and was prosecuted for DUII. The work I did at the client’s Implied Consent suspension hearing enabled me to lay a foundation for a successful defense at trial. At trial, I established that the client’s unsteadiness on his feet and his slurred speech was due to a brain injury which the client sustained in a motor vehicle accident, and not intoxication. Our efforts were rewarded with a Not Guilty Verdict.

The police responded to a complaint of our client driving recklessly, and discovered the client was apparently intoxicated. We won the client’s case.

Client D was arrested because of unsafe driving in a park. When apprehended by the police, he failed field sobriety tests and refused a breath test. I was able to persuade the jury that there was reasonable doubt concerning the client’s condition at the time he was driving, because there was evidence that the client had been drinking beer between the time he ceased driving and was apprehended by the police. The jury found my client Not Guilty.

Police jumped to conclusions about client driving while drugged. Aggressive cross examination revealed that the officer failed to follow procedures.

Client G was pulled over for unsafe driving. The police found drug paraphernalia in his vehicle and white powder on his nose, suggestive that the client had recently ingested cocaine. The client refused field sobriety tests. The police officer was highly skilled and experienced in conducting investigations for drug-impaired driving, and was even an instructor in that field. After reviewing the police reports prior to this trial, my paralegal told me that, if I won this client’s case, I was truly an outstanding defense attorney. I used the officer’s training materials against the officer at trial, and demonstrated that the officer had failed to follow the standard procedures. My work on this client’s behalf resulted in a verdict of Not Guilty on the charges of Driving Under the Influence, as well as the drug possession charges.

Police stopped our client for running a flashing red light. We established that there was no such signal. We won Motion to Suppress. Case dismissed!

Client S faced charges of Reckless Driving and DUII, based on the police officer’s allegation that he had failed to stop at a flashing red light. The client blew three times the legal limit on the breath test. I challenged the police officer’s conduct at the time of the stopping of my client, and demonstrated that the officer was incorrect about certain key facts in the case. Using evidence from the city traffic engineer, I demonstrated that there was no flashing red light at the intersection in question. The judge granted my Motion to Suppress evidence, and the entire case was thrown out.

Proactive and aggressive advocacy on our client’s behalf at the Implied Consent hearing resulted in dismissal of the client’s criminal charge.

Client V was arrested in his home on suspicion of DUII. The arrest was based on an anonymous tip on the part of another motorist, who phoned in a complaint to the police. When the police arrived at the client’s home, they entered the home in violation of the client’s Constitutional rights. Based on the testimony at the client’s Implied Consent hearing, I persuaded the prosecuting attorney to dismiss the case.

Police officer erroneously concluded that client was intoxicated. We established that language barriers prevented adequate communication. Not Guilty!

Client R was from a foreign country, and spoke little English. When he was apprehended by the police, he requested an interpreter, but the officer refused to get one. At trial, the police claimed that the client had made significant driving errors, had failed the field sobriety tests, and had refused the breath test. I persuaded the judge that my client’s conduct and the police observations resulted from a difficulty in communicating due to the language difference, and my client was found Not Guilty.

Police officer pulled over our client, who exhibited signs of intoxication. In reality, the client had worked around chemicals all day. Not guilty!

Client M was apprehended based on driving infractions and was prosecuted for DUII. He failed the field sobriety tests and refused a breath test. At trial I demonstrated that the client’s condition was not based on intoxication, but resulted from the client being tired from working all day. I also demonstrated that his dizziness and poor balance resulted from working around toxic chemicals at his workplace. Further, I established that the client’s slurred speech and confusion which was exhibited to the police officer resulted from a language barrier, arising from the client not being a native English speaker. The jury rewarded my defense of this client with a Not Guilty verdict.

Police failed to follow all steps required by DRE protocols. Result: DUII charges dismissed!

Two clients were arrested, in separate counties, and were prosecuted on suspicion of DUII. They committed traffic infractions, and exhibited signs of intoxication. The State alleged they were under the influence of marijuana. I demonstrated that the police officers had failed to take all the investigative steps necessary to establish a foundation for the admission of scientific evidence, and both cases were dismissed.

Client appeared to be intoxicated. In reality, client was suffering from a diabetic reaction. Blood sugar level made client seem drunk. Not guilty!

Client A was arrested for dangerous driving. He failed the field sobriety tests, and refused a breath test. At trial, the police officer testified that the client appeared heavily intoxicated. I established that the client’s apparent intoxication was actually due to his diabetic-related reaction to a blood sugar imbalance. The jury found my client Not Guilty.

Aggressive cross examination of the arresting officer can reveal inconsistencies and flaws in the investigation. Good lawyering can lead to dismissal!

Client C was prosecuted for DUII. I questioned the police officer relentlessly at the trial, pointing out the numerous errors that the officer had made in his investigation of the matter. The jury could not agree on a verdict, so the judge declared a mistrial. The case was scheduled for a retrial. On the day of trial, the officer refused to appear in court, evidently because he did not want to be subjected to a second grilling. Case dismissed!