EXPUNGING/SETTING ASIDE CRIMINAL ARRESTS, DISMISSALS AND CONVICTIONS AS OF JANUARY 1, 2022

ELIGIBILITY

1. CONVICTIONS

2. ARRESTS/CHARGES WITHOUT CONVICTION

3. OTHER REQUIREMENTS
   1. If a person’s probation was revoked, the person may not apply for an order setting aside the conviction until after a period of 3 years from the date of revocation.
   2. A filing fee no longer is required to file a motion to set aside/expunge a conviction.
   3. The prosecuting attorney may not charge a fee for performing the requirements in the expungement process.
   4. The person filing the motion must forward to the Department of State Police a full set of the person’s fingerprints on a fingerprint card or in any other matter specified by the Department. The person must pay a fee to the Department of State Police for the purpose of the Department performing a background check.​
      1. The Department shall establish a fee in an amount not to exceed the cost of performing the criminal record check. If the Department is required to perform only one record check for the person, the Department may only charge one fee, regardless of the number of counties in which the person is filing a motion.
      2. The Department shall provide a copy of the results of the criminal record check to the prosecuting attorney.

4. HEARINGS ON OBJECTIONS TO EXPUNGEMENT
   1. ​​​​The prosecuting attorney may object to a motion to expunge a person’s record
   2. However, the prosecuting attorney must notify the court within 120 of the date the motion was filed with the court.
   3. If an objection is received to an expungement motion, the court shall hold a hearing and may require the filing of affidavits and taking of proofs as the court deems proper.
   4. The victim shall be allowed to make a statement
   5. If the person is otherwise eligible for expungement of a conviction, the court shall grant the motion and enter an order granting the motion unless the court makes written findings, by clear and convincing evidence, that the circumstances and behavior of the person, from the date of the conviction the person is seeking to set aside to the date of the hearing on the motion, do not warrant granting the motion due to the circumstances and behavior creating a risk to public safety. When determining whether the person’s circumstances and behavior create a risk to public safety, the court may only consider criminal behavior, or violations of regulatory law or administrative rule enforced by civil penalty or other administrative sanction that relate to the character of the conviction sought to be set aside. The court may not consider non-punitive civil liability, monetary obligations and motor vehicle violations. Upon granting the motion, the court shall enter an appropriate order containing the original arrest or citation charge, the conviction charge, if different from the original, the date of charge, the submitting agency and the disposition of the charge. Upon the entry of the order, the person for purposes of the law shall be deemed not to have been previously convicted, and the court shall issue an order sealing the record of conviction and other official records in the case, including the records of arrest, citation or charge.

5. OFFENSES ELIGIBLE FOR EXPUNGEMENT
   1. A Class B felony, except for a charge including an allegation that the felony involved the use of a firearm or any crime classified as a person felony;
   2. Any misdemeanor, Class C felony or felony punishable as a misdemeanor;
   3. An offense constituting a violation under state law or local ordinance; or
   4. An offense committed before January 1, 1972, that, if committed after that date, would qualify for an order under this section;
   5. A finding of contempt of court.

6. OFFENSES NOT ELIGIBLE FOR EXPUNGEMENT
   1. Criminal mistreatment in the second degree if the victim at the time of the crime was 65 years of age or older;
   2. Criminal mistreatment in the first degree if the victim at the time of the crime was 65 of age or older, or when the offense constitutes child abuse;
   3. Endangering the welfare of a minor when the offense constitutes child abuse
   4. Criminal negligent homicide when that offense was punishable as a Class C felony;
   5. Assault in the third degree when the person, being at least 18 years old, intentionally or knowingly causes physical injury to a child 10 years of age or younger
   6. Any sex crime, unless:
      1. The crime is rape 3, sodomy 3, sexual abuse 3, contributing to the sexual delinquency of a minor, sexual misconduct, or an attempt to commit one of these offenses; and
         1. The person has been relieved of the obligation to report as a sex offender (under 163A.145 or 163A.150 for age-based convictions); and
         2. The person has not been convicted of, found guilty except insanity of or found to be within the jurisdiction of the juvenile court based on a crime for which the court is prohibited from setting aside the conviction; or
      2. The sex crime constitutes a Class C felony and
         1. The person was under 16 years of age at the time of the offense;
         2. The person is:
            1. Less than 2 years and 180 days older than the victim; or
            2. At least 2 years and 180 days older, but less than 3 years and 180 days older, than the victim and the court finds that setting aside the conviction is in the best interest of justice and of benefit to the person and the community;
         3. The victim’s lack of consent was due solely to incapacity to consent by reason of the person being less than a specified age;
         4. The victim as at least 12 years of age at the time of the offense;
         5. The person has not been convicted of, found guilty except for insanity of or found to be within the jurisdiction of the juvenile court based on a crime for which the court is prohibited from setting aside the conviction under this section; and
         6. Each conviction or finding described in this section involved the same victim.
   7. A conviction for a state or municipal traffic offense
   8. A person who, at the time the time the motion is pending is under charge of commission of any crime.
   9. A person convicted, within the following applicable time period immediately preceding the filing of the motion, of any offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the conviction that is sought to be set aside. A single violation, other than a motor vehicle violation, within the last 10 years is not a conviction under this subsection. A conviction that has been set aside under this section shall be considered for the purpose of determining whether this section applies.

Unfortunately, the fact remains, far too often we hear stories about unarmed citizens being shot, choked, and beaten by the men and women sworn to protect them. It is true not all people getting arrested are compliant and receptive to being placed in custody, but the law enforcement response must be tempered and commensurate with the resistance. For example, it would be hard, and unfair, to fault a police officer for pulling a weapon on a suspect who, despite being given clear verbal instructions to stop, drop his weapon, and put his hands up, continues to approach while holding a loaded firearm. On the other hand, once a suspect is facedown, on the ground, with his hands behind his back in the grips of another officer, it would not be acceptable, or excusable, for an officer to continue to punch, choke, or shoot that person.

As a society, we have to figure out how to eliminate these disproportionate responses so everyone can feel safe and comfortable in their community. I realize as a 40 year old white man I can never fully understand what it is like to be in the shoes of someone of color who instinctively is afraid of the police. I have read many stories, articles and books and watched many shows and movies in which racism and discrimination are at the forefront. Over the course of 13 years of practicing criminal law and handling hundreds of cases, I have seen the angst, and brutality, some arrested individuals experience. In college, my thesis advisor, and friend, was Julian Bond, who was the Chairman of the NAACP. We spoke about race, criminal law, and the death penalty. He would tell me stories about growing up in the South and working with Dr. Martin Luther King, Jr. and the Student Nonviolent Coordinating Committee and how difficult, and brutal, peaceful and nonviolent protests could be. I was fortunate to be able to learn, as well as a college-aged white kid could, what it was like to be in the shoes of a man terrified of the people who were supposed to be protecting him. 

So, when I read the news, or hear the stories, about the fate of men like George Floyd, my heart sinks. I don't know all of the facts behind why the police encountered him, or why they got him out of his car, or why he was sitting on a sidewalk, and then why he was laying facedown on the concrete gasping for breath and pleading for mercy, while a white cop held him down with a knee on his neck. What I do know is I have been unable to think of how the deadly force the officer used was in any way commensurate to any resistance Mr. Floyd might have provided. I think I am safe in assuming this is not a position unique to me. To date, the whole interaction and ultimate use of lethal force makes no sense.

That said, how should we be responding?

I have seen and heard the cries for the officers involved to be arrested and charged with murder. At this point, the Minneapolis officer whose knee was thrust upon Mr. Floyd has been charged with third degree murder. I have heard the discontent with the fact that the officers were not immediately arrested, but merely fired. I have heard and seen the protest and how some have become unlawful and violent. I have heard people dismiss those protesters as thugs and lawless. But, at the end of the day where does all of that get us? When do we figure out how to address these issues and tragedies so we don't have to say again "another George Floyd."

I am an Oregon lawyer, so cannot speak to the criminal laws of Minnesota, but I have read their murder law and have compared it to ours. Third degree murder in Minnesota reads a lot like manslaughter in the first degree in Oregon. The third degree murder statute reads: "whoever, without intent to effect the death of any person, causes the death of another by perpetrating an act eminently dangerous to others and evincing a depraved mind, without regard for human life, is guilty of murder in the third degree." This reads a lot like first degree manslaughter in Oregon: "criminal homicide constitutes manslaughter in the first degree when...it is committed recklessly under circumstances manifesting extreme indifference to the value of human life.

Clearly facts and circumstances can change, but it seems to me the prosecutors got the charging decision right, based upon what has been shared publicly. Maybe something more will come out that suggests the officer intended to kill Mr. Floyd and thus should be reindicted and charged with murder in the second degree or perhaps even murder in the first degree if they can establish the murder was with premeditation. There's also the possibility that some evidence comes to light that would indicate there should not be a homicide charge at all or that the officer has a legitimate defense, although neither of those seem likely at this point. 

I have no gripe with the charge. I understand the dismay and outrage at why it took so long to arrest the officer and charge him. Mr. Floyd died on May 25, but the officer was not arrested until May 29. I think of a typical case I have seen when the person causing the victim's death is clear, it does not usually take very long to get that person in custody. That said, I also understand that facts are not always known right away or enough evidence has not been collected to make a clear charging decision. So, in the end, I do not think the delay is entirely unreasonable. This is an instance in which it is so important to get it right that taking the time to gather the facts and evidence makes sense. 

While from a pragmatic and lawyer-perspective I do not have a problem with the delay, I can understand why it is not so easy for everyone to accept. Many people protesting have not been given the benefit of the doubt or the deference of a thorough and complete investigation prior to be judged and charged. Much of the protest has nothing to do with the ultimate charge either. I think many people have the feeling of "here we go again" and the further cementing of fear of authorities...after all, George Floyd was not armed, but rather facedown on concrete surrounded by officers when he was killed. This brings back thoughts of Michael Brown, or Rodney Kind, or any number of other unarmed people killed by law enforcement. I suspect, for people like Julian Bond, it brought back horrific memories of encounters with police in the 60s in which many people were injured and killed solely because of the color of their skin. It's important for those of us that haven't experienced those times or have those inherent concerns show understanding and not disdain. 

I have been disappointed to see how many protests have become violent with people throwing projectiles, igniting fires, and committing other lawless acts in the name of protesting police brutality. As I've said, I cannot fully understand the pain, betrayal, and "here we got again" that many feel at this time, but the way to respond is through peaceful protest and helping accomplish change, not in committing crimes and acts of violence. Mayor Keisha Bottoms of Atlanta put it so eloquently and passionately, in response to the unrest and violence going on in Atlanta, that I'd rather you see it for yourself than me try to explain it. The best way to accomplish change and maintain the moral high ground is to emulate the Martin Luther King, Jrs. of the world. Peacefully protest and work through legal means to make the necessary changes. Committing new crimes and giving fervor to the idea of "just a bunch of thugs" does nothing to accomplish the goal of stopping these needless and inexplicable deaths. 

Of course, all of us need to recognize the pain behind these protests and do our part to try and understand it and help those hurting so badly. It is of no help, and only intensifies the feeling of being second class or not mattering, when people of power dismiss protesters as "thugs" and make suggestions like "when the looting starts, the shooting starts."  We can make the necessary changes and reconciliations our society demands only when we truly make an effort to understand and empathize with each other.

So, in short, or long, that, plus having read numerous John Grisham books, is why I am a criminal defense attorney. While I prefer to be able to prove my clients "innocent," that is not my burden. It is my burden, my job, to make sure the government does its job...prove my client guilty beyond a reasonable doubt. I get a great sense of satisfaction and value from knowing I have done all I can do to make sure innocent people do not get convicted nor have their liberties taken from them and that the government has satisfied its very high burden. 

Fortunately, as science progresses, our chances of "getting it right" also progresses and should lead to more certainty...if we accept and embrace it. We often hear people talk about how things like DNA can prove someone's guilt beyond a reasonable doubt. But, what if we flipped that, DNA can DISprove someone's guilty beyond a reasonable doubt. Sadly, too often, there is resistance from the government to revisit closed cases and convictions or to further examine whether they "got it right." It seems, at times, it becomes more important to get a result than to get it right.

Every-once-in-a-while something comes up, or a case gets publicity, and wrongful convictions briefly get the attention they always deserve. On May 26, 2020, Archie Williams appeared on the reality show "America's Got Talent" and his harrowing story of spending nearly 4 decades in prison for a rape and assault he did not commit. Mr. Williams was convicted of the 1982 crime with little evidence. Fingerprints found at the scene did not match his. He had alibi witnesses. The victim identified a scar in a location that did not match any of Mr. Williams's scars. And, there was no DNA testing. Years later, the Innocence Project took on his case. Within a few hours of testing, using a new and broader database, it was determined the fingerprints belonged to a serial rapist and DNA at the scene was not Mr. Williams. It took numerous fights and a brave judge to force the government to redo the fingerprint analysis and to get DNA testing completed. It's also a tragedy that it took 37 years for a few hours of work to vindicate an innocent man and help him regain his freedom. 

Mr. Williams' case is not nearly as unique as it ought to be. Innocence projects and forensic integrity organizations work throughout the country evaluating cases and doing their best to ensure the integrity of our criminal justice system and the convictions and punishments in metes out. In 2019, the Forensic Justice Project, in Oregon, worked to exonerate Nicholas McGuffin, who served nearly 10 years in prison for causing the death of his then girlfriend. While McGuffin was acquitted of murder, he was convicted of manslaughter. The Forensic Justice Project, after relentless efforts and much resistance, was able to establish the government failed to turn over exculpatory evidence. Years after McGuffin was tried and convicted, a team of lawyers discovered DNA evidence, on a shoe, that freed an innocent man.

It's not just DNA though. Even things like eyewitness testimony, that once were considered the gold standard of criminal law, have proven to be fallible. In 1985, Ronald Cotton was convicted in Greensboro, North Carolina for a rape he did not commit. In 1987, he was given a new trial and in that new trial was convicted of two rapes. The whole case turned on the eyewitness identification of the victim who was certain Cotton was the assailant. The photo lineup conducted in the case was done per the protocol and procedures established by law enforcement. However, as science has progressed, and proven, those procedures were utterly and devastatingly flawed. Finally, in 1995, DNA evidence finally exonerated Cotton, but not before he spent ten years in prison. A suggestive photo lineup led to a rape victim misidentifying her assailant and an innocent man spending ten years in prison for a crime he did not commit.

These three cases are merely examples of the thousands of wrongful conviction cases being reevaluated and hopefully vindicated by lawyers determined to get it right. These cases also demonstrate the incredible consequences and irreversible harms that are created when the system doesn't get it right. I believe it is incumbent upon us as a society, and particularly those of us working in the criminal justice system, always to endeavor to get it right and to heed the wisdom of leaders like Franklin and Jefferson.

I represent those guilty people because not all of those people are in fact guilty. It should not take a reality show performance by men like Archie Williams or news shows like 60 Minutes or 20/20 featuring the stories of men like Nicholas McGuffin and Ronald Cotton to make us cringe at the thought of taking liberty away from innocent people. Our society, and Constitution, is built upon the premise and promise of freedoms and liberties. Our system purports to ensure that those freedoms and liberties are not revoked lightly and without a thorough and robust defense...that the government is held to the principles of our Constitution and the accused proven guilty beyond a reasonable doubt...that is why, and how, I can represent "those guilty people."

He also suggested we should not be releasing people from custody and somehow the desire to have nonviolent offenders released, since there is no social-distancing in crowded jails. He somehow equates the realization that, in the name of public safety, overcrowded jails is a public health problem to a demand for mass release of prison inmates. These things are apples and oranges. 

I submitted a response to the Oregonian and on April 15, the paper published it. Read it here.

On March 23, 2020, Governor Kate Brown signed Executive Order No. 20-12 establishing guidelines and rules over our freedom of movement and affecting our ways of life. Through this Order, and previous orders, Governor Brown shuttered most schools, day-cares, and even restaurants and other businesses. The effect has been drastically to change the conveniences and freedoms we have grown to take for granted. But, more importantly, it has led many people to lose income, savings and jobs. Oregonians, like most Americans, are terrified of how they will rebuild as well as if they will fall victim to this virus. Governor Brown's Order has created profound changes to our lives and has disrupted our everyday agendas.

For me, professionally, most courts are closed to normal business with no clear answer on how we will recover and regain normalcy in the future. Personally, I worry about dropping my kid off at daycare wondering if she will be safe and is at risk of getting sick. I'm bummed by the fact she can't see her grandparents because they are in that "at risk" or "vulnerable" age group and she, or my wife or I, could infect them if we are together. The thing that I haven't put much thought in to, but I know others have, is, "what happens if I get stopped because a cop, or law enforcement, thinks I'm violating the Governor's Order."

Governor Brown's "Stay Home, Stay Safe" Executive Order does more than closing businesses and schools. The Order also restricts individuals and our ability to go to restaurants, parks, parties, etc. This Order has gone a step beyond a request, it is an order with enforcement power. The Order contains an "Enforcement" provision that states, "This Executive Order is a public health law, as defined by ORS 431A.005, and may be enforced as permitted under ORS 431A.010. Additionally, any person found to be in violation of this Executive Order is subject to penalty described in ORS 401.990." The penalty, under ORS 401.990 is to treat a violation of the Order as a Class C misdemeanor. Class C misdemeanors are punishable by up to 30 days in the county jail and, or, a fine of up to $1250. Thus, there are serious consequences to violating the "Stay Home, Stay Safe" Order. So, be safe out there, think about the consequences your actions have, not only on your life, but the lives of others around you, and use care in understanding the "Stay Home, Stay Safe" Order.

EXPUNGING/SETTING ASIDE CRIMINAL ARRESTS, DISMISSALS AND CONVICTIONS

ELIGIBILITY

1. CONVICTIONS

1. After the lapse of 3 years from the date of conviction. However, if the person is still on probation or incarcerated, as part of the sentence for the conviction, the person is not yet eligible;
2. If a person’s probation was revoked, the person may not apply for an order setting aside the conviction until after a period of 10 years form the date of revocation;
3. This section applies to:
   1. A Class B felony, except for a charge including an allegation that the felony involved the use of a firearm, only if:
      1. 20 or more years have elapsed from the date of conviction or the person’s release from imprisonment for the conviction, whichever is later and the person has not been convicted of, arrested or criminally cited for, or charged with any other offense, excluding motor vehicle violations, after the date the person was convicted of the offense sought to be set aside; or
      2. The Class B felony is:
         1. A felony punishable as a misdemeanor;
         2. An offense constituting a violation under state law or local ordinance; or
         3. An offense committed before January 1, 1972, that, if committed after that date, would qualify for an order under this section.
   2. A Class C felony or felony punishable as a misdemeanor;
   3. Any misdemeanor
4. The following offenses, although otherwise eligible for an order setting aside a conviction, are not eligible to be set aside:
   1. Criminal mistreatment in the second degree if the victim at the time of the crime was 65 years of age or older;
   2. Criminal mistreatment in the first degree if the victim at the time of the crime was 65 of age or older, or when the offense constitutes child abuse;
   3. Endangering the welfare of a minor when the offense constitutes child abuse
   4. Criminal negligent homicide when that offense was punishable as a Class C felony;
   5. Assault in the third degree when the person, being at least 18 years old, intentionally or knowingly causes physical injury to a child 10 years of age or younger
   6. Any sex crime, unless:
      1. The crime is rape 3, sodomy 3, sexual abuse 3, contributing to the sexual delinquency of a minor, sexual misconduct, or an attempt to commit one of these offenses; and
         1. The person has been relieved of the obligation to report as a sex offender (under 163A.145 or 163A.150 for age based convictions); and
         2. The person has not been convicted of, found guilty except insanity of or found to be within the jurisdiction of the juvenile court based on a crime for which the court is prohibited from setting aside the conviction; or
      2. The sex crime constitutes a Class C felony and;
         1. The person was under 16 years of age at the time of the offense;
         2. The person is:
            1. Less than 2 years and 180 days older than the victim; or
            2. At least 2 years and 180 days older, but less than 3 years and 180 days older, than the victim and the court finds that setting aside the conviction is in the best interest of justice and of benefit to the person and the community;
         3. The victim’s lack of consent was due solely to incapacity to consent by reason of the person being less than a specified age;
         4. The victim as at least 12 years of age at the time of the offense;
         5. The person has not been convicted of, found guilty except for insanity of or found to be within the jurisdiction of the juvenile court based on a crime for which the court is prohibited from setting aside the conviction under this section; and
         6. Each conviction or finding described in this section involved the same victim.
   7. A conviction for a state or municipal traffic offense
   8. A person convicted, within the 10-year period immediately preceding the fling of the motion, of any offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the conviction that is sought to be set aside. A single violation, other than a motor vehicle violation, within the last 10 years is not a conviction under this subsection. A conviction that has been set aside under this section shall be considered for the purpose of determining whether this section applies.
   9. A person who, at the time the time the motion is pending is under charge of commission of any crime.

2. ARRESTS

1. At any time after the lapse of 1 year from the date of arrest, citation, or criminal charge, if no accusatory instrument has been filed;
2. This section does not apply to:
   1. A conviction for a state or municipal traffic offense;
   2. A person convicted, within the 10-year period immediately preceding the fling of the motion, of any offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the conviction that is sought to be set aside. A single violation, other than a motor vehicle violation, within the last 10 years is not a conviction under this subsection. A conviction that has been set aside under this section shall be considered for the purpose of determining whether this section applies;
   3. A person who, at the time the time the motion is pending is under charge of commission of any crime;
   4. A person arrested or criminally cited for or charged with an offense within the 3 year period immediately preceding the filing of the motion for any offense, excluding motor vehicle violations, and excluding arrests, citations or charges for conduct associated with the same criminal episode that caused the arrest, citation or charge that is sought to be set aside. An arrest, citation or charge that has been set aside under this section may not be considered for the purpose of determining whether this section applies; or
   5. An arrest or citation for driving under the influence of intoxicants if the charge is dismissed as a result of the person successfully completing a driving under the influence of intoxicants diversion agreement.

3. ACQUITTALS/DISMISSALS

1. At any time after acquittal or dismissal of the charge, may apply to set aside any record of arrest, citation, or criminal charge;
2. This section does not apply to:
   1. A conviction for a state or municipal traffic offense;
   2. A person convicted, within the 10-year period immediately preceding the fling of the motion, of any offense, excluding motor vehicle violations, whether or not the other conviction is for conduct associated with the same criminal episode that caused the conviction that is sought to be set aside. A single violation, other than a motor vehicle violation, within the last 10 years is not a conviction under this subsection. A conviction that has been set aside under this section shall be considered for the purpose of determining whether this section applies; or
   3. A person who, at the time the time the motion is pending is under charge of commission of any crime.
   4. A person arrested or criminally cited for or charged with an offense within the 3 year period immediately preceding the filing of the motion for any offense, excluding motor vehicle violations, and excluding arrests, citations or charges for conduct associated with the same criminal episode that caused the arrest, citation or charge that is sought to be set aside. An arrest, citation or charge that has been set aside under this section may not be considered for the purpose of determining whether this section applies; or
   5. An arrest or citation for driving under the influence of intoxicants if the charge is dismissed as a result of the person successfully completing a driving under the influence of intoxicants diversion agreement.

PROCESS

1. Person must file a motion with the court and serve a copy of the motion, along with a full set of fingerprints, upon the prosecuting attorney;
2. Prosecuting attorney must provide the victim, if any, of the crime a copy of the motion as well as a hearing notice;
3. Person must pay a fee of $80 to the Oregon State Police to perform a background check;
4. Person must pay a filing fee, as established under ORS 21.135, to the court (as of January 2019, the fee is $281);
5. The court shall schedule a hearing
   1. Court may require the filing of affidavits and may require the taking of proof as the court determines appropriate;
   2. The victim shall be allowed to make a statement to the court;
   3. If the court determines the circumstances and behavior of the applicant, from the date of conviction, or from the date of arrest, citation, or charge if there was no conviction, to the date of the hearing on the motion warrant setting aside the conviction, or the arrest, citation or charge records if there was no conviction, the court shall enter an appropriate order setting aside the conviction, or the arrest, citation, or charge record if there was no conviction;
   4. The court shall state that positive identification has been established by the Department of State Police;
6. Upon entry of the order setting aside the conviction, or arrest, citation, or charge if no conviction was entered, the person, for purposes of the law, shall be deemed not to have been previously conviction, or arrest, cited or charged, if no conviction was entered. The court shall issue an order sealing the record of conviction and other official records in the case;
7. The clerk of the court shall forward a certified copy of the order to such agencies as directed by the court;
8. A certified copy must be sent to the Department of Corrections when the person has been in the custody of the Department of Corrections;
9. Upon entry of the order, the conviction, arrest, citation charge, or other proceeding shall be deemed not to have occurred, and the person may answer accordingly any question relating to its occurrence.

Amendment Effective January 1, 2020 Related to Qualifying Marijuana Convictions:

In the 2019 legislative session, Senate Bill 420 became law which grants many individuals with qualifying marijuana convictions the ability to expunge their convictions. Senate Bill 420 establishes a slightly different procedure. Importantly, a person filing for an expungement under this section is not required to pay a filing fee, or any other fee, or file a set of fingerprints.

A qualifying marijuana conviction is a conviction for a marijuana offense: 1. that is based upon conduct in ORS 475B.301 or possession of less than an ounce of the dried leaves, stems or flowers of marijuana; 2. was committed prior to July 1, 2015; and 3. For which the person has completed and fully complied with or performed the sentence of the court. 

2019 RACING REPORT

Rob Crow

      ​​
 

LIFE IS ABOUT CHALLENGING YOURSELF…IT’S ABOUT TELLING YOURSELF “B.F.D.” WHEN YOU KNOW YOU’RE IN WAY OVER YOUR HEAD. 

Mountain biking is 50% fitness and 50% just not being afraid of running in to shit…or, in other words, bike handling skills. I had an inkling this was true, but yet decided my 20 years of road triathlon experience was enough to transfer over to me being a solid off-road triathlete…I was wrong. Simply put, I suck at mountain biking. Yet, somehow, I still enjoy it. There’s something about riding through the woods, over rocks and roots and dodging trees that is both challenging and terrifying while also being peaceful and cathartic. Three hours in the trees on a mountain bike flies by so much faster and less excruciatingly than three hours cruising down a highway on a TT bike. So, with all of this in mind, and with the knowledge that six-hour bike rides were far less doable with a 2-year-old, I decided to make this year off-road triathlon year. 

Much of off-road triathlon training is just like training for a road triathlon. Whether road or off-road, most of the training is swimming in a pool, riding on the trainer in my garage, and running through various paths and trails around Portland. Thus, fit enough for a road triathlon should be fit enough for off-road, right? Except, there’s the bike handling skills. I once heard a quote, and I think it’s an apt saying, “road cyclists see rocks and think ‘oh shit!’ while mountain bikers see rocks and think ‘oh, a path!’” I must say, I’ve progressed, but still default to “oh shit!”

Starting around January or so, I began my regimen of long rides on the trainer, laps in the pool and loops around the waterfront. My “A” race was Xterra Wild Ride in McCall, Idaho on August 18. I’d been to McCall once and liked the idea of doing an out-of-town race. I’d follow that race, less than a week later, with the Hood to Coast running relay. And maybe, because I was certain I’d be a solid “Xterra Warrior,” I’d take on the PanAm Championships in Ogden, Utah September 7. I knew I’d throw in some other races just to keep the edge going. 

My first race was the Sisters Stampede, which is Memorial Day Weekend. I’d not planned on doing this race, but my friend Steve talked me in to giving it a go. The Stampede is purely a mountain bike race, but nonetheless a good opportunity to test my skills and meddle. It’s 25 miles of rugged terrain with lots of rock gardens…rocks scare me. One of the important lessons they teach you when mountain biking is the faster you go over obstacles, the more control you have and you should keep your weight back over the rear wheel when going over and down things. As a triathlete accustomed to being draped over aerobars, this mountain biking skill has been a hard one for me to master. When I first got my mountain bike, a few years ago, a friend, the aforementioned Steve, talked me in to going mountain biking in Forest Park on Firelane 5. Firelane 5 is a good challenge to practice maneuvering through singletrack trails with trees and turns and also descending some steep hills and over some large rocks. My first attempt was successful in the sense that I made it to the bottom…eventually. But, first, I forgot the rule of keeping your weight over the back wheel and going over obstacle quickly. I saw a pretty gnarly drop over some large rocks and rather than approach it as an “I see a path” mountain biker, I reacted as an “oh, shit, rocks!” road cyclist and, soon enough, I’d propelled myself over the handlebars and squarely knocked my head on said rock (the other thing they teach you when learning to mountain bike is you will go where you are looking, so look ahead. I didn’t do this…I stared at that damn rock and then headbutted it). Fortunately, I was wearing a helmet and didn’t do major damage. When I finally made it to the bottom, I noticed my tooth felt weird so I asked Steve to take a look…turns out I chipped it and experienced my first “life-lesson” of mountain biking about keeping your weight back. Unfortunately, that was a lesson I had forgotten by “The Stampede.” By mile 5, I had already wrecked a few times, once going over handlebars, and had a cut on my leg that was actively bleeding.  
 

Fortunately, I did not give up on my friendship with Steve or mountain biking with him either. He and I went to Mount Hood and took the $2 shuttle from Rhododendron to Timberline and rode down. It was here that Steve taught me another valuable lesson. When going over rocks and other obstacles and when racing through technical aspects of the trails, it’s best to stand on the pedals and not remain seated in the saddle. I was still slow and hesitant on that ride, but I am proud to say I disappointed Steve by not giving him the opportunity to see me catapult myself into the air. I further improved my mountain biking by getting a better fit and installing a dropper-post, which makes such a huge difference when trying to remember to keep your weight back over the rear tire when going over and down steep obstacles. 

I finally made it to McCall, without seriously injuring myself, ready to take on the race. Coincidentally, my friend Sue, who is one of the best off-road triathletes in her age group in the world, also was doing the race. Sue already had ridden the course and invited me to take on a loop with her. Sue informed me how the course wasn’t too bad or technical and that she and her husband Don had ridden it previously at a “tourist’s pace” and it was fine. As an aside, I race as a tourist. Another important aspect of McCall I had completely overlooked…the town is at 5000 feet of elevation. I had not known this and unfortunately learned the lesson the hard way when I had a hard time breathing on the swim. My swim, as it had been in prior races this summer, was abysmal. I couldn’t get a good breathing cadence and couldn’t find any lane lines at the bottom of the lake. I survived discipline 1 of 3 and moved on to the bike. I was successful in not ejecting myself from the bike, but definitely did take the time to step off the bike a few times as I took my tour of the course. The run went pretty well until I turned a corner around mile 4 and very nearly was snout to snout with a deer who looked at me as if to say “who the hell are you and what are you doing here?” I stopped so fast my left hamstring knotted up and I struggled to do much more than walk and hobble to the finish. This was my last off-road race of the year. I couldn’t justify going to the Pan Am Championship in Ogden if I struggled so mightily as an age grouper in McCall. I was a bit discouraged. I also discovered my motivation in training and racing unfortunately had dwindled the more I realized I was not a very good mountain biker. 

Then, in September, the email arrived. I’m still not quite sure how I got it or why it was sent to me, but somehow, I received an invite to participate in the Xterra World Championship October 27 in Maui, Hawaii. My first thought, after the initial “why’d I get this?” was “that’d be cool, but I could never do that.” I emailed my friend, and coach, Gary and told him I’d received the invite and that “I think it would be cool, but I’d be in way over my head.” Gary’s response was “BFD” (by this, he meant Big Fucking Deal)…in essence, his advice was “who cares, go for it!” Xterra World’s in Maui is one of the most famous and popular triathlons. It is famous for the course’s beauty, its challenge, its party, and its MUD! I knew I had no business doing this race, but with Gary’s urging and my wife’s support, I decided to accept the invite and sign up. This of course also meant I had to turn the motivation back on and overcome the discouragement that I was not a good mountain biker and thus not an off-road triathlete. 

My training was going pretty well. I was becoming a much stronger biker and swimmer. I also was making a more concerted effort to get out and ride the trails to improve my mountain biking skills. But, the injury sustained from my encounter with the deer in McCall was still haunting me. I couldn’t figure out how to beat it so that I could run normally. I tried massage, which provided some temporary relief, but couldn’t get me to where I wanted to be. I visited a physical therapist, but when he seemed to solve my lateral calf problem, it migrated to the medial calf…he was stumped. I was desperate to fix it so I could train for the race with more than 1-3 hour hikes through Tryon Creek. I went to the chiropractor and to an acupuncturist. Both seemed to help some, but not solve the problem. 

So, I concentrated on biking and swimming. I was spending an hour plus three to four nights a week in the garage riding different courses while watching TV or even working on the computer. I also was doing as many rides as possible with hills and mud to prepare me for a gnarly ride in Maui. I did loops of hills/inclines ranging from a few dozen yards up to a mile or so. I also was hitting the trails when as muddy as possible. I was becoming a stronger cyclist.

My swimming this year had struggled, well, it had sucked. I was working on being more efficient and developing a better breathing cadence to correct my mistakes in McCall. The swimming was going decently, but then I hit another snag. Our gym pool had to close because the filter broke. It would be closed for a not-yet-determined length of time. I went to the Southwest Community Center pool and it too was closed. 

I was desperate. I needed to practice my swimming. So, I went to LA Fitness and told them I previously was a member and possibly interested in joining again, but in all honesty, was just really desperate for a pool to use because my race was about 2 weeks away and I already wasn’t running. The staff was nice enough to give me a pass for a few weeks so I could get in my swims.

I was less than a week from my departure for Maui and still trying acupuncture and chiropractic with the hopes of finding a solution. They both seemed to help, but not solve the problem. Then, I received an email from Jon, my PT. He said he’d just attended a symposium and learned a new technique that he thought would solve my problem. I was somewhat dubious, but still determined to get back to running. However, my time was running thin because I was scheduled to fly out for Maui 2 days later. So, during his lunch on Tuesday October 22, Jon left his normal office to meet me to test out his new technique. I’m still not entirely sure what he did. He said something about moving the tibia back in to place. Whatever it was, I was willing to see what it would do…I just wanted to finish this race that I knew I very likely could be one of the last finishers.

I also had been texting with Sue, who already was in Maui. She was telling me the weather was great, but the surf forecast for race day was looking bad. She warned me that this would be the slowest 1500 meters I’d ever swum. The water was lake-like currently, but by Monday, the day after race day, the surf was supposed to be dangerously strong. Last year the surf was so strong, some people didn’t even start and someone else broke an arm when they were tossed around by a breaker near the shore. As someone who had done one ocean swim in his life (about 5-10 minutes alone at the Oregon coast a few weeks prior), I was becoming very anxious. 

I arrived at Kapalua, Maui (race location and site of the Ritz Carlton) on October 23. Part of why I enjoy traveling to races is the experience of something new and the moment it hits you that “oh shit, this is real!” In Maui, that moment came for me when my daughter and I located my name on the “Start List” (sadly, she and I were too short to reach it). 

On October 24, I went swimming with Sue in the glass-flat ocean and learned how beautiful and magical swimming in Hawaii is. Even 350 meters away from the shore, the water was crystal clear and you could see the bottom, although there still were no lane lines. I felt good about the swim we had, but very apprehensive of the swim we might have on race day. I actually started to hope they’d cancel the swim so I wouldn’t have to deal with such crazy waves. 

I also was hearing from Sue that the new bike course, which was chosen because the previous year mud was so bad people had to walk bikes, was nice but still very hilly. Ultimately, I decided to ride a loop of the course. This bike leg was no joke. Right out of the gate you head up steep hills. They’re on paved paths, but it’s an unforgiving first 3 miles of up and more up. I knew right away I’d be walking my bike a decent amount. But, to my delight, it was not a technical course and there were very few rocks to jump out and attack me. That same day, Xterra put on Xterra University and had a brief swim clinic with pro triathletes and lifeguards. They gave suggestions on how properly to enter an ocean swim with the most efficiency in avoiding being thrown back by crashing waves, how to sight for the buoys and negotiate the currents, how to safely ride the waves in and avoid being “Maytagged” and how to put your arms in front of you because it’s better to break an arm or collarbone than a skull, neck, or back. This brief “course” and the subsequent practice proved invaluable to me. I had very little confidence in my ability to do an ocean swim and successfully enter and exit the ocean without hurting myself. But, with their insight, as well as that of more experience ocean-swimming-triathlon friends, I felt less terrified of dealing with crashing waves than I had before. Of course, I secretly still was hoping they’d cancel the swim because 3.5-foot waves with an estimated power surge of 850 kJ (no idea what that is, but it sounds like a lot) made me very anxious. 

After the practice swim, I met up with my parents and sister, who had flown out from North Carolina to watch the race and spend time with me and my toddler daughter. The 5 of us sat and ate lunch and the prerace nerves solidly hit me. I could barely eat. I got that butterflies in the stomach feeling that naturally comes with racing, but it was a phenomenon I couldn’t explain well to family unaccustomed to the triathlon lifestyle. I took some time and space for myself, went for a walk and then did a short bike ride. Getting out on the bike and having some time to reflect and enjoy one of the most picturesque locations I’d ever visited really helped me regain my composure. I was feeling better about the race, although still terrified of the violent seas we were anticipating.

I rarely sleep well the night before a big race and this was no exception. I tossed and turned and stared at the ceiling for hours. I woke up before my alarm at 6 AM and discovered it had rained. A little rain was a good thing as the trails had been the opposite of the previous year and were very dusty. Dusty isn’t good either as dust can be slippery on the bike and with 650 other cyclists out there, it kicks a lot of dirt and sand into the air as you are trying to ride. I then looked at the ocean from our deck and it wasn’t bad at all. There were some breakers on the beach, but mostly the water seemed much like what we had experienced a few days prior. 

I rode my bike down to the transition area around 7:30. I wanted to see the pros go at 8 and they start the race morning off with a traditional Hawaiian blessing that had me quite curious. As I approached the Ritz, it began to rain more and concern started to set in that it was going to be a rainy day. I was okay with some rain later once I was on the run and needed to cool down a bit, but really didn’t want to have to struggle with it the whole morning. The rain stopped right around the time the pros took off. Xterra starts the amateur race in waves and I was in the first one. I wasn’t particularly excited about it, as I remembered Sue’s warning about it being a very slow swim, as well as the fact I didn’t really want to get swum over by hundreds of faster swimmers. But, alas, it is what it is and that was my plight. 

The horn sounded and I waited for a few seconds to let the rest of the competitors in my age group get started. I then entered the ocean the way I had been taught a few days prior. 

It worked…I was working my way through the waves and not getting tossed back towards shore. I was diving in to the waves as deep as possible, grabbing the sand and pulling myself forward. I settled in to a manageable and consistent breathing cadence and marveled at the sea below. I was having a great time, but in the back of my mind waiting for the moment when I would lose my composure and breast-stroke or doggy-paddle the rest of the way. I hit the first 350 meters straight out from the beach and then turned left after the 1st buoy to head south for another 150 meters to the 2nd buoy. I still was waiting for the dreaded moment of mental collapse, but it didn’t come. I powered along with my fellow age-groupers and turned once again back toward shore for the final 200 meters to the beach. I readied myself for the incoming breakers and prepared to surf one in. Sadly, nothing strong enough ever came and I swam all the way in…in time for a second loop. 

This time, rather than dreading the inevitable collapse, I was thoroughly enjoying the swim and the beauty and warmth of the DT Fleming Beach. I was getting lost in the fantastic swim that I forgot about the 750 meters I still had to go and ended up swimming 5 minutes faster on lap 2. I’d just posted my best swim of the year and it was an ocean swim with a current...and surge!

I exited the swim knowing now that I could finish the race. The scariest discipline was done and now I could take advantage of all the bike strength I had been building. Of course, that didn’t change the challenge and elevation of 3000 plus feet in 20 miles of riding. I made it about a 1/3 of a mile before I started walking up the hill. I was somewhat relieved to see that I was not the only one, but it was still a bit deflating. I ended up pushing the bike 3 or 4 times that first loop and realized it was going to be a long day. The key was, though, I just had to be out of T2 by 2:15 and since I had had such a good swim, I only needed to beat 4 hours and 20 minutes on the bike which I knew I could do. The last 2 miles of the bike loop mostly are downhill and it feels really good racing down to the grounds of the Ritz with hundreds of people cheering you on as you descend in to the valley and circle the chute to be greeted by volunteers and supporters cheering you on.

Then you hear the volunteers screaming “left for finish and right for second lap.” That’s when it hits you, “I have to do that shit all over again.” This time I made it a bit farther before I began to walk the bike…I’m guessing at least 5 to 10 yards. Then, I once again was pushing my bike up the hill. All this work, time and money I’d put into the bike and I was watching myself push it up a hill. As an aside, I now know I can push a bike up a long and steep hill at 1.9 miles per hour. I got back on before having to dismount again and then I was pushing once more. About the same time, another racer hopped off her bike and we chatted for a minute or two about the race and beauty of the course. She was from Peru. She then hopped back on her bike and said “come on Roberto, let’s go!”…she went. I walked. 

Around mile 3 on the second loop, when fatigue was setting in, I started to get that feeling that I couldn’t go any further and wouldn’t finish. However, I decided to stick with it and power on, so I’d at least finish the bike. At mile 7 on the loop, they have an aid station where you can get water or Gatorade Endurance. I knew Gatorade Endurance would be what they had on course so I had been training with it and had it in my Nathan vest. I stopped and refilled my vest with a bottle and continued on the trail. I descended back in to T2 and felt again that I would finish. It was a bit after 1, so I had plenty of time to spare. 

I slowly and deliberately transitioned from my biking gear and nutrition to run gear. I was prepared for it to take a long time. I hadn’t really run in over a month. The day before I did a 20-minute run and felt pretty good, but wasn’t totally confident in my leg and my ability to maintain a run for the whole 6.5 miles. I also knew I had had such a successful swim that I was determined to finish and if that meant walking, then so be it, I would finish. The run, just like the bike, starts with 3 plus miles of uphill. I was concentrating on my nutrition and making sure I consumed enough water, calories, and electrolytes to keep me going. But, I was starting to struggle and felt the beginning of some chills…which is a bad sign when it’s 85 plus degrees out. 

There are water/Gatorade stations every mile or so on the run so I stopped at the first briefly. Then at mile 2 I was prepared to get some more water when the volunteer asked me “would you like some ice for your hat?” Yes, I did, in fact I’d take a handful to throw down my jersey as well. This is when things turned around for me after a brutal bike and tough first 2 miles. I was feeling human again and knew I could walk for hours if I had to. I hiked along this beautiful run course just as I had been doing for a few weeks in Tryon Creek with my dog Whiskey. It was slow going, but I was making headway. A couple of times I tried a slight jog, but also recognized I tend to be injury prone and didn’t want to roll an ankle on a root or on one of the many golf balls on the trail that must have meandered off course from the links bordering the trail. I talked with other participants as we maneuvered along the over 1000 feet of elevation gain. I talked, walked, and then ran the last 1.5-2 miles with a guy, Greg, from Boston who comes out to Boise every year for a mountain biking clinic. We talked about our kids, the new course, and how nice it was they trimmed back the huge cactus that tended to grab people as they were approaching the beach. As we approached less than ½ a mile to go, Greg told me he needed to walk. 

I was feeling strong and determined to run the beach to the finish, so off I went. The Xterra World Championship course is brutal, yet beautiful. They proudly advertise the race with a “rough water swim.” The bike course is notorious for its views and scenery, but also its elevation and steepness. The run course is pretty in that you are in the Maui hills with views few people see and going over and under fallen trees and the last mile or so is downhill on a pretty good and well-maintained path. You can hear spectators and supporters cheering as you cross over an empty creek bed. You know the finish is just minutes away and then it hits you…I have to run on the damn beach. Beach running is no walk in the park. Running in loose dry sand is hard and takes a lot out of you. It’s even worse when you’re already spent. It’s just plain cruel to throw it in at mile 6.2 on a 6.5-mile course. But, it also makes the trek that much better and more satisfying. I cruised down the beach, turned up the stairs. From there it was less than 100 meters to the finish line and the accomplishment of completing the Xterra World Championships.

I’m a novice ocean swimmer, tourist on the bike, and an injury waiting to happen on the trail run. Regardless, I had a fantastic time. At the end of the day, I accomplished my goal. I had no illusions of reaching the podium for my age group or even finishing in the top half of the field. My goal going in, knowing I was in way over my head, was to complete the race. I endured a brutal bike and run and had a fantastic swim when I had been dreading it all week. Triathlon, like life, throws many obstacles and curveballs at you. The key is finding the motivation and determination to meet those challenges and to accomplish your goals. In the end, it doesn’t matter who you are or how skilled you are, if you set a reasonable goal, put your mind to it and are willing, and able, to adjust, anything is achievable. In the end, nothing has to be so outrageous as to be a “Big Fucking Deal.”  

A criminal defense lawyer that tells you something like "I've never lost a DUII trial" or "I've won 'x number' in a row" or "I win 'x percentage' of the cases I take to trial" likely is providing you with some important information that should scare you away. In all likelihood, a lawyer who tells you these things actually is telling you "I don't try many cases" or "I don't take hard cases." Some of the best lawyers I've ever seen in trial lose more trials than they win. Why is this? It's because they take hard cases and they try cases. 

As an attorney, I have several ethical and legal obligations to my clients. One is a duty of confidentiality...what they tell me stays with me, forever, unless they instruct me otherwise. Another obligations is a duty of loyalty. I have a duty to look out for my clients' best interest and not to act in such a way that would imperil their legal well-being. I do my best to advise my clients and provide them with the best guidance for them to make the best decision for themselves. However, they don't have to take my advice and ultimately it's their decision whether to go to trial or take a plea.

I can think of a number of times when I advised a client to take a plea, but they decided they wanted to go to trial...so we went to trial. One case, in particular, comes to mind. I once tried a case in which a client was charged with theft of merchandise from 4 or 5 different stores. Not only was he charged, but he was caught on video and actually admitted to one of them. As an experienced attorney and someone who has taken many cases to trial, I was pretty sure what would happen at trial. I knew, in all likelihood, the jury would return with one word anwers "guilty." This particular client was not swayed by this. This client was not interested in any plea deal and wanted to exercise his Constitutional right to go to trial and force the prosecutor to prove his guilt beyond a reasonable doubt. If I were concerned about my win-loss record or winning a certain number of cases in a row, I would have run from that case. I would have begged the judge to let me off of the case. Sadly, I have seen lawyers withdraw from cases when their clients rejected plea deals and instead wanted to go to trial. I'm not ashamed to admit, but we lost that case...we went down in flames. But, my client got his wish and we fought the good fight. While we ultimately lost, he got to exercise his right to trial and had the assistance of an experienced lawyer and one who did his best to help get a two word verdict "not guilty." As for me, my win-loss ratio took a hit because of that case. But, I also gained more trial experience and developed more skills and strategies for the next case. I'm always learning and working to become a better lawyer. The best way to do this is to try cases and get more and more experience. 

So, this is my answer to the question of "should I ask my lawyer what his win-loss rate is." And, this is the explanation I give to every prospective client with whom I speak. The better questions are "how many cases do you try" or "how many cases, that you were convinced were total losers, have you taken to trial." The sign of a zealous and committed advocate is someone who is willing to fight and be loyal no matter how good or bleak the result may seem.

To measure BAC, Oregon uses the Intoxilyzer 8000. The Intoxilyzer 8000 is a relatively large machine, about the size of a typewriter, that requires the person to provide three breath test samples in order to calculate a BAC. When used properly and when the correct procedures are followed, the Intoxilyzer provides a decently accurate estimate of a person's BAC at that time. The downside to the Intoxilyzer 8000 is that it is a large machine and cannot be used at the arrest scene. In order to obtain a BAC sample, an arresting officer must take the arrested person to the police station in order to get the person to provide a sample. Thus, BAC samples cannot be obtained instantaneous to the person driving or to the person's arrest. Obtaining a sample can take anywhere from 30 minutes to several hours after the person was driving. This leads to the obvious problem that the BAC sample does not tell us exactly what the person's BAC was at the time the person was driving.

Alcohol is not a constant in a person's body. When alcohol is consumed, it first must be absorbed by the body in order to get in to a person's blood system and affect their mental and physical faculties. Once the alcohol is absorbed, it will dissipate, or eliminate, from the blood system. Thus, alcohol works somewhat as a "bell-curve" in a person's body. The problem is, it is not a perfect bell-curve. The rate at which alcohol absorbs and stays in the blood system varies by the person.  The rate and pattern of a person's alcohol consumption can affect how quickly the alcohol absorbs as well as if there is a plateau period, or time for which the alcohol content remains the same. The average dissipation rate ranges from .015-.020% per hour. 

Because there are so many variables, merely knowing a person's BAC at a specific time does not tell us exactly what that person's BAC was at any specific time in the past. This obviously is important because it means, without more information, knowing a BAC, based upon a sample from the Intoxilyzer 8000, at some point in time after a person was driving, does not give us enough information to know what that person's BAC was at the time that person was driving. In fact, the Oregon Court of Appeals has held that "the fact that blood alcohol dissipates does not logically lead to any conclusion regarding a specific person's earlier BAC at a specific time. The fact that blood alcohol dissipates is notable for what it does not tell the court. It does not, for example, by itself inform the court whether at any given time, a person's blood alcohol is dissipating or increasing. After all, it is also a matter of common knowledge that, before a person's blood alcohol can dissipate, alcohol must accumulate in the blood."

This is all to say that, just because a person blows .08 or above, it does not necessarily mean that person is guilty of DUII. Much more goes in to it and the prosecutor must present more evidence to the jury to suggest what that specific person's BAC was at the time that person was driving.

While there clearly is a convenience incentive to having the IID removed, there also is a monetary incentive. Having an IID installed can cost anywhere from $60 to over $100 per month. This obviously adds up, in addition to all of the other fees and expenses associated with diversion, over the course of a year.

There are several requirements and steps necessary to obtain this relief. There also are some IID providers who are easier to work with and who make it easier to obtain the necessary documentation. I discuss this opportunity with all of my clients and also make recommendations on which providers tend to be the easiest to work with with all of my DUII clients. As part of my vision of my practice and the service I provide, I believe it is important to help put my clients in the best position to succeed and to interfere with their lives as little as possible.

A major concern for clients convicted of “sex crimes” is the requirement that they register as sex offenders. Oregon law requires a person convicted of certain crimes to register as a sex offender. Failing to report, as required by law, is a Class C Felony and carries a maximum sentence of 5 years of prison and/or a fine of up to $125,000.

Relief From Sex Offender Registration

All hope is not lost when ordered to register as a sex offender. Oregon law does allow a person convicted of a sex crime to get relief from registering as a sex offender. Currently, the relief from registration law allows relief from registration if:

This law, however, was repealed January 1, 2017 and will be replaced by new requirements and procedures. The new law potentially will allow a broader range of convicted sex offenders to gain relief from the requirement they register as a sex offender. The new law will rely upon a classification system of sex offenders based upon a risk assessment tool consisting of 3 levels of sex offenders:

It is this classification system that then will help determine if, and when, a sex offender is eligible to get relief from registration. 

However, certain crimes (including Rape 1, Sodomy 1, Unlawful Sexual Penetration 1, Kidnapping 1 when the victim is under 18, or Burglary 1 when committed with the intent to sex crimes listed in 181.805(5)(a)) require a Level 3 classification. A person classified as Level 3 will not be eligible for relief from registration.

In order to get relief from registration, a person must meet certain criteria:

Thus, if a person initially was classified as Level 1, the waiting period to petition for relief from registration is 5 years from the date supervision/jurisdiction of the court expired. If a person initially was classified as Level 2, the waiting period to petition for relief from registration is a minimum of 10 years from the date supervision/jurisdiction of the court expired.

Reclassification is the process in which a sex offender can petition the court to be reclassified from a Level 3 offender to a Level 3 offender or to be reclassified from a Level 2 offender to a Level 1 offender.

There are several other requirements and conditions that might prevent a person from getting reclassified or being eligible for relief from registration.

The new law, ORS 163A.110, establishes the procedure the Board of Parole and Post-Prison Supervision will follow in order to classify registrants. Currently there are over 28,000 Oregonians registering as sex offenders. ORS 163A.110 instructs the Board to classify current registrants no later than December 1, 2018. No later than February 1, 2019, the Department of State Police shall enter the results ofthe classification into the Law Enforcement Data System. I consulted with a member of the Board of Parole and Post-Prison Supervision at the beginning of February 2018 and he informed me, based upon the timeline laid out above, the Board plans to begin accepting petitions for relief from registration on or soon after December 1, 2018 and to start holding relief from registration hearing by February 2019.

September 12, 2018 Update: I spoke with Board of Parole and Post-Prison Supervision today regarding what people currently registering need to do to get relief. The Board is still working on figuring out the best way to make sure everyone either gets classified or re-classified. This is a process that is taking time and is proving complicated. For people who have previously been classified based upon the Static 99 test, the Board will review that and criminal histories since the classification to determine if a reclassification is needed. If a person has not been classified at all, they will need to do so prior to applying for relief under the new law. The Board instructed me the best way for a person to check on their status will be to check to Board's website around mid-November to be able to check in to their status. You can visit the Board and Sex Offender Assessments website and contact to access more information and updates from the Board as well as their contact information. 

The law on Sex Offender Registration and Relief from Registration is very complicated and someone seeking reclassification or relief from registration should contact a qualified Oregon attorney.

DNA testing is being used more and more in the legal system as the technology becomes better and more accepted. It is widely accepted that DNA comparison is the most accurate evidence available and is being used with the assumption of near certainty. In fact, many Innocence Projects around the country are using DNA testing to exonerate convicted defendants, even when the convictions occurred years before. The catch-22 for suspects is the DNA evidence also can be used to tie them to other crimes and possibly to prior, unsolved, criminal incidents.

Supreme Court Ruling on Forced DNA Sampling

This is exactly what happened in Maryland v. King, a case decided by the United States Supreme Court June 3, 2013. In that case, the Defendant, Mr. King, was arrested for menacing and forced to provide a DNA sample. DNA samples are collected by taking a swab of a person’s mouth. This was a key factor in the court’s decision as the intrusion of the body (the swab of the person’s mouth) is minimal and virtually painless. The court concluded this is much different from a forced blood draw in which a needle must be inserted into a person’s skin. When the police tested Mr. King’s DNA, they were able to tie him to an unsolved rape committed 6 years earlier. Mr. King argued it was an unconstitutional warrantless search. The Supreme Court, however, viewed the DNA collection differently. The Supreme Court looked at the collection more as a mode of identifying the suspect and collecting important information about his history, such as whether he might be a danger to others. The Court concluded identity information already is routine through booking photos, mugshots, and comparing fingerprints. It viewed the only difference as DNA has unparalleled accuracy.

The Court weighed the privacy interest of the suspect versus the legitimate governmental interest in collecting the DNA for the purposes of identification. The Court compared it to fingerprinting and suggested the only differences are DNA is more accurate and requires the slight intrusion of swabbing the inside of a person’s mouth versus the intrusion required to take a person’s fingerprint. The Court decided that a person’s privacy interest is diminished when he is taken into police custody and the government has a legitimate interest that outweighs the person’s privacy interest. Thus compelling a DNA sample upon arrest for certain violent crimes is constitutional.

Once a person’s DNA sample is collected, it is processed through the FBI’s Combined DNA Index System, or CODIS. Through CODIS, the suspect’s loci (the DNA sequence on a chromosome) are compared to other samples. The loci do not reveal any private medical information or genetic traits. Thus, the purpose of collecting DNA for identification purposes does not create an invasion of privacy.

Oregon Law on DNA Samples

In Oregon, any person convicted of a felony or certain misdemeanors is required to provide a DNA sample. In 2011, a bill (SB 881) was introduced in the Oregon legislature that would have required police to collect DNA samples upon arresting suspects of specific violent crimes, absent a few enumerated exceptions. This bill, however, died in committee before coming to a vote. Thus, in Oregon, under ORS 137.076, a DNA sample (blood or buccal) is required only in instances of a conviction of 1. a felony, 2. sexual abuse in the third degree or public indecency, 3. conspiracy or attempt to commit rape in the third degree, sexual abuse in the second degree, burglary int he second degree or promoting prostitution, or 4. murder.

Thus, police may not require a DNA sample upon arrest, but upon conviction of certain crimes, the court will order a DNA sample be collected.

The Oregon State Legislature is debating a bill which would increase the length of time required to have an ignition interlock device installed to five years after the ending of the longest running suspension if the person is convicted of a DUI and certain additional offenses (including murder, manslaughter in the first or second degree, criminally negligent homicide, or assault in the first degree).

A person also would be subjected to the five-year requirement if he or she is convicted of aggravated vehicular homicide or driving while under the influence of intoxicants and the person’s driving privileges are revoked and later ordered restored.

The crime of DUII is not limited to intoxication by alcohol. It is possible to be charged, and convicted, of DUII when not under the influence of alcohol. Intoxication through controlled substances, such as, but not limited to, marijuana, methamphetamines, cocaine, heroin, and ecstasy also can lead to charges of driving under the influence.

Additionally, it is important to remember 0.08 % BAC (Blood Alcohol Content) is the legal limit. Anyone with a BAC of 0.08 or higher is considered legally intoxicated. However, the DUII laws in Oregon state that anyone impaired to a perceptible degree is considered driving under the influence of intoxicants.

Thus, there are some people who might be impaired to a perceptible degree even-though they blow under the legal limit of 0.08.

A few years ago the Oregon legislature decided to require all individuals participating in DUII diversion to have ignition interlock devices installed in a vehicle they operate while in diversion.

What Is an Ignition Interlock Device (IID)?

An ignition interlock device, also commonly known as a "blow and go" or IID, is a device attached to the vehicle that requires the operator to blow into a tube connected to a mechanism that will register if there is a level of alcohol on the individual’s breath. If alcohol is determined to be in the individual’s breath (DMV established 0.02% BAC as the requisite level), the mechanism will prevent the vehicle from starting.

Periodically data from the device is downloaded and submitted to the agency that reports to the court about any violations of diversion agreements. A report indicating a violation can include a “negative report” which is a report of tampering with the IID, unauthorized removal of the IID, and lockouts or test violations recorded by the IID. At this point, the court can schedule a show cause hearing, which is a hearing where the individual is required to appear and argue to the court that he or she should not be terminated from diversion because of the alleged violation. One common argument to combat an IID failure or negative report is the diversion participant was not the person who blew into the IID, but rather someone else was attempting to operate the vehicle. Several “fixes” have been proposed to counter this argument. Unfortunately, these fixes inevitably require more money and tend to involve the use of IID cameras.

New Performance Standards for IIDs

The Department of Motor Vehicles, DMV, created an administrative rule requiring all IIDs installed after June 1, 2015 to have a camera. OAR 735-118-0040 establishes performance standards for IIDs. One such standard is that all IIDs newly installed after June 1, 2015 must be equipped with a camera that will capture the photo of the person using the device. Arguments have been levied against IID cameras.  One argument is that the DMV lacks authority to create a requirement for IIDs cameras, but rather it is the legislature who has this authority. An alternative attack against IIDs cameras is the costs associated. Non-camera equipped IIDs can cost anywhere from $70-$125 a month. IIDs with cameras would increase the costs to the diversion participant.

The Oregon legislature also has explored the use of IID cameras. Senate Bill 396 would establish a rule that a judge may require a diversion participant to install an IID equipped with a camera if the person is not terminated from diversion following a show cause hearing. This bill currently is still being debated in committee and has not yet been considered by the full legislature or made it to the governor.

A common question among individuals charged with a DUI, convicted of a DUI or participating in the DUI diversion program, is, "Can I expunge my DUI?" 

Expunging a conviction means setting it aside so that it appears you never had a conviction. People often think of this in terms of “falling off my record.”

Let’s start first with a DUI conviction. Certain convictions are expungable (or eligible to be set aside) if specific factors are met. Unfortunately, driving offenses are not expungable, thus a conviction for a DUI is not expungable. A case that has been dismissed through the DUI diversion program also is not eligible to be expunged for the same reason that a DUI conviction is not expungable…driving offenses are not expungable.

Thus, participation in the diversion program will always show on your record. However, it is important to remember that if you successfully complete diversion, no conviction will be entered and the case will be dismissed with prejudice.

An Oregon Expungement or Record Sealing motion is a motion filed with the court in a particular case that seals or removes that case from public view as though the arrest and/or conviction never occurred.

This can assist in procuring housing, jobs, and many other societal benefits, including one’s civil and firearm rights. It can also reduce one’s Oregon criminal ranking which can reduce future conviction consequences, sometimes dramatically, saving someone months or even years in jail or prison if a properly filed expungement has been executed.

Expungements in Oregon are regulated by the Oregon Revised Statute on Setting Aside Conviction or Record of Arrest. Some juvenile, as well as adult records, may be sealed. The rules for expungement are complex and often involve waiting periods of 1 year, 3 years, and 10 years based on previous convictions as well as waiting periods based on the number of convictions.

Certain convictions are ineligible for record sealing such as traffic offenses and most major A and B felonies.

In Oregon, we have an implied consent law that states you implicitly consent, so whether you know you do or not, to provide a breath, blood, or urine sample if requested by an officer. There are consequences if you do not. 

If you refuse, the license suspension imposed will be longer than the suspension that would be imposed had you provided a sample and had you blown over the legal limit.

In Oregon, we have the crime of Driving Under the Influence of Intoxicants (DUII). An intoxicant can be alcohol (the most commonly thought of DUII) or a controlled substance.

A controlled substance, in Oregon, is defined as a drug or other substance, or immediate precursor, included in schedule I, II, III, IV, or V of the Federal Controlled Substance Act. Not all drugs are controlled substances. There are some drugs considered “controlled prescriptions,” because they require a prescription from a physician, but are not scheduled under the Controlled Substance Act and therefore are not controlled substances for the purposes of a DUII.

There also are some drugs, such as over-the-counter Benadryl, which may adversely affect your motor functions (i.e. cause drowsiness), but they cannot be the basis for a DUII by a controlled substance. However, such drugs may be considered in conjunction with the use and effects of a controlled substance in determining if someone is under the influence of intoxicants.