Blog posts and information on substantive Oregon criminal law, as opposed to criminal procedure. Substantive law refers to the acts that can lead to criminal sanctions, and what those sanctions can be. Criminal law changes from state to state, and sometimes from city to city. Most of my posts relate to Oregon law, but some relate to federal law or aren’t specific to any jurisdiction.
Areas of substantive criminal law include:
- DUII
- Sex Offenses
- Collateral Consequences
- Sentencing
- Defenses
Senator Crapo’s alcohol problem
In Oregon, and in most states, driving with a blood-alcohol level of .08% or higher is driving under the influence of intoxicants, or DUII. The .08% is defined, semiofficially, by federal law, and it represents a balance between increasing public safety (a low number would capture more drivers) and individual autonomy (if the number is too low, no one could have a few drinks at dinner and still drive home). It’s probably necessary to have a single figure for everyone, but in fact the .08 figure is too high for people who don’t...
read moreGrey rape, and when no means no.
This issue seems to cycle in and out of the public consciousness, maybe in response to a stupid comment by a politician (remember Todd Akin?), or a heated debate between blogs as summarized in this Slate XX blog entry. Those debates, which I can remember having in a course on the philosophy of sex and love in college, only permit black-and-white answers like “no means no” when they aren’t about real situations with the blurry and contradictory facts that come out of real rape cases. Saying that ‘no’ means ‘no’ isn’t much help when the dispute...
read more‘Victim’s rights’ should include the right to lenience.
Over the last twenty years, the ‘victim’s rights’ movement has fueled major changes in criminal law. Oregon victim’s-rights law permits a victim to attend judicial proceedings and to obtain information about the process. Further, as a practical matter, the prosecutor will typically consult with the victim about plea-bargaining, at least if the victim wants to be consulted. There’s a listing of the major Oregon victim’s-rights laws at http://law.lclark.edu/live/files/4971-oregon. The push for victim’s rights law came from the right-hand side...
read moreHow to get bail in an Oregon criminal case
New clients often start out by asking me how they can get out of jail and get back to their families and their jobs. Deciding whether to go to trial and how to prepare a defense may be more important, but it is less immediate, so everyone wants to start by working on bail. It’s easy to get a hearing in front of a judge on bail, but it is harder to persuade a judge to set a bail amount that an average person can afford, especially when faced with Measure 11 or other serious charges or an immigration hold. The right to bail is protected...
read moreDon’t be too zealous in Marion County
Criminal defense attorneys Andy Simrin and W. Keith Goody have been accused of contempt in Marion County for over-zealous advocacy of a death row inmate. Marion County Circuit Court Judge Jamese Rhodes entered an order removing Mr. Simrin and Mr. Goody as counsel for convicted murderer Gary Haugen, and, when Mr. Simrin and Mr. Goody filed a petition in the Oregon Supreme Court arguing that the order was invalid, they were charged with contempt. For those of you who haven’t been following the Gary Haugen saga, here it is in a nutshell; he has...
read moreIn State v. Phillips, Oregon Supreme Court accepts review to discuss different theories of criminal liability.
The Oregon Supreme Court has taken review of my case State v. Phillips. The Supreme Court only accepts review in a small percentage of appellate cases, usually only to resolve important and unanswered questions of Oregon law. The issue in Phillips is whether the jury must agree on a basis to convict when a criminal defendant is accused of both committing a crime and assisting another person to commit the crime. That issue could have far-reaching consequences, about how detailed an indictment must be, about how many crimes arise from related...
read moreOregon Court of Appeals permits prisoner to sue over illegal prison term, rejects discretionary-immunity claim
In Westfall v. Oregon, ___Or App___, ___P3d___ (slip opinion dated 12/29/2011), the Oregon Court of Appeals reversed a trial court’s ruling dismissing a prisoner’s lawsuit about the incorrect calculation of his prison term. As a result, the prisoner will be allowed to proceed with his lawsuit against the prison for unlawfully extending his sentence. The opinion is interesting for two reasons. First, it explains in some detail the labyrinthine laws and rules relating to credit for time served. I have long believed that significant parts of...
read moreTop ten US Supreme Court cases on criminal law
This is my list of the ten most significant US Supreme Court cases relating to criminal law. I think I’ve cited every case on this list in a brief or motion within the last few months, and any competent criminal attorney would know most of these cases offhand. In Mapp v. Ohio, 367 US 643 (1961), the Supreme Court held that evidence could not be admitted in a criminal trial if it was obtained through an illegal search in violation of the Fourth Amendment. As the court explained in Mapp and since, they want to discourage police misconduct by...
read moreBlind justice and the exclusion of evidence from criminal trials
I don’t like the popular image of Lady Justice (the woman with the blindfold and scale who shows up on courthouse steps and similar places.) My objection does not relate to the cut of her robe, which can be troubling to puritanical Attorneys General, (I’m always glad to see an annoyed Attorney General) but because her blindfold sends a rotten message about how the American justice system works. ‘Blind justice’ is an evocative image about the American justice system. I had a teacher explain to me in high school that justice is blind because...
read moreShould even law-abiding citizens talk to the police?
As with any parent, part of taking my kids out in public involves telling them what to do if there’s a problem, such as if they are separated from me and my wife and need to ask someone else for help. Although crimes against children committed by strangers are rare, they do occur from time to time, and they are pretty much always committed by men. So, the kids are supposed to look for a mommy or, if one is not apparent, a police officer. As a criminal defense attorney, I routinely butt heads with police officers, and they are usually in the...
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