From Portland Attorney Shanelle R. Boyd
(c) 2012 The Law Offices of Shanelle R. Boyd, LLC
May 19, 2012
Issues To Consider When Taking Prescription Medications and Operating a Motor Vehicle, Especially If You’re Over 50
When most people think of Driving While Under the Influence (or DUII in Oregon), they only think of cases involving alcohol. But, the law in Oregon is much more complicated. In fact, you don’t need to have alcohol on-board to be considered Driving While Under the Influence.
Oregon’s title spells it out: Driving While Under the Influence of Intoxicants (DUII). Focus on the key word here: Intoxicants. An intoxicant can be anything from a prescription medication, alcohol, or illegal drugs.
It is estimated that over 48% of all Americans currently take at least one prescription drug. Out of those prescriptions, many fall under the categories of a controlled substance, making them illegal to take while operating a motor vehicle if they cause impairment. With that many Americans taking prescription medications, you can bet that at least half of them (if not more) operate a motor vehicle with those medications in their system. And some are being stopped and charged for DUII for taking those medications and driving.
Aside from that, there is another issue to consider: age. Out of the 48+% of Americans who are taking prescription medications, you can probably safely bet that at least half are seniors who may have health conditions that affect their balance, ability to walk a straight line, and/or stand on one leg. The unfortunate part is that the tests that officers use to determine impairment at the scene of a stop are tests that a lot of older Americans aren’t able to do. Tests they couldn’t do even if they aren’t taking the medications. And, in most cases, even though they may not be able to do these tests, they may still be able to operate a motor vehicle safely.
Furthermore, other signs that officers use to determine impairment often naturally occur in people who are of advanced age. These signs include: red bloodshot eyes, slight slurring of speech (due to dentures or other dental work), slow motor movements, confusion, and balance problems. This can easily lead to an innocent person being arrested for DUII after taking prescription medications.
I’ll give you an example of this tragedy. Meet Ruth*. Ruth is a 62 year year old woman, who currently takes Oxycodone and Propoxyphene for the arthritis in her hips, hands, and knees. Ruth decides to drive to the grocery store, and in the process is stopped because her right tire touched the fog line once (failure to maintain lane). Officer Jones makes contact with Ruth, where he asks her for her information. Ruth has a slight slur due to her dentures. Her eyes are naturally bloodshot, and her face if flush from the embarrassment of being stopped. Officer Jones sees these things and asks her if she has been drinking or takes medications. Ruth tells him that she hasn’t been drinking, but that she does take Oxycodone and Propoxyphene for her arthritis. Officer Jones has her get out of the car to do some field sobriety tests. Ruth fails. She can’t stand on one leg, and she can’t walk a straight line because of the arthritis. She tells the officer that she feels no effects of the prescriptions, other than they take the pain away. Officer Jones arrests Ruth for DUII, anyway. Ruth has never been arrested before. After a urine test, Officer Jones finds the medications in her system.
This scenario happens daily. Under the second prong of the Oregon DUII statute, a person can be arrested for being impaired by prescription medications. And that impairment is determined by the officer at the scene of the stop.
Prescription medications, like Oxycodone, are considered controlled substances and intoxicants. You don’t need to combine them with alcohol. Just taking them alone, driving, and then being labeled as impaired by a police officer is all it takes to be arrested for DUII.
So, if you are taking prescription medications and drive, be careful. Especially if you have underlying health conditions that may make you fail a field sobriety test. And, if you do feel the effects of your prescription medications, don’t drive.
How do you know if you’re taking a medication that might get you into trouble. Heed these warning signs:
1. The bottle has warning labels cautioning its use while operating a motor vehicle or operating machinery.
2. Your doctor tells you the prescription may make you drowsy, or cautions you against driving while taking the medication.
3. You feel impairment. If you become extremely drowsy, can’t focus, or feel you can’t operate a motor vehicle safely while on it, don’t take it and drive.
If you take prescription medications, ask your doctor if they’re medications that could affect your ability to safely operate a motor vehicle.
Stay safe. Stay out of the legal system.
*Note: This is for educational purposes only and is not intended to replace the legal advice of an experienced attorney. Contact an attorney to evaluate your situation.
*Ruth is a fictional character used for demonstrative purposes only
May 18, 2012
To Blow or Not To Blow. What is the Myth Surrounding Submitting to the DUII Breath or Chemical Test?
There is much debate regarding whether or not someone who has been arrested for DUII or DUI should submit to a breath or chemical test. Many people take the advice from friends and family to not submit to a breath or chemical test, noting that they don’t want to give the state “a number” to prosecute them with.
But, wait. Not so fast. Sometimes that advice is bad and leads to undesirable consequences. In Oregon, the DUII law is two pronged: 1. You’re DUII if you drive with a blood alcohol level of .08 or above; or 2. You’re DUII if you consume alcohol or intoxicants and are impaired by them. It is the second prong that the state can prosecute those who either refuse a breath or chemical test, or have a low blow. It’s under the second prong that someone who blows a .04 can still be found guilty of DUII. Under this prong, the state only needs to show that the defendant was impaired by alcohol or intoxicants, even though there was only a minimal amount in the defendant’s system at the time of the stop or arrest. So if a defendant refuses a breath or chemical test, s/he can still be found guilty of DUII, and face higher consequences surrounding their driving privileges (i.e. increased time period for driver’s license suspensions).
So, how do you decide whether or not to submit to a breath or chemical test? Consider the answers to the following questions:
1. Do I have a CDL, or does my employment depend on my license being valid? If you answer yes, you might want to consider that if you hold a CDL or you depend on having a valid driver’s license, your refusal to submit to a test will have you face a lengthy license suspension period (1-3 years) with the high risk of not being able to get a temporary hardship permit.
2. Is this my first arrest for DUII? If you answered yes, you may be eligible for a DUII Diversion program where if you fail the test, you may only face a short suspension period. And, if you blow under the legal limit you might not face any suspension at all. If you refuse to submit to a test, then you would face the lengthy suspension period which may be detrimental to your employment.
3. Have I been convicted of DUII or been through a Diversion program within the past 5 years? If you answered yes, then you risk the lengthy suspension period being longer than a standard refusal and you may need to do additional things to get your license reinstated after the suspension period ends.
If you or a loved one are ever arrested for DUII, keep in mind the consequences of refusing or failing the breath or chemical test. Always contact an attorney to evaluate your situation so that you can make the best decision that’s not going to harm you in the long run.
*Note: This posting is for educational purposes only and is not meant to replace legal advice from an experienced attorney.
May 17, 2012
Should Police Change Their Approach In Adult Rape and Sex Cases?
In Portland, Oregon, Fernando Macias couldn’t believe it when he was arrested for a crime he asserts he did not commit. Fernando was arrested for rape early last fall from an encounter he had in September with an acquaintance at a local bar. He was thrown in jail on two Measure 11 charges, Rape 1 and Sodomy, until the case was subsequently dismissed a month later. He hired me as his attorney, where I immediately hired an investigator who found information in Fernando’s favor.
It turned out that the alleged victim had posted photos of herself from the night in question on Facebook. She posted them the day after the alleged incident. The photos showed her acting extremely drunk and flirting with various men. Further, witnesses reported conflicting statements from the alleged victim. There was even video from the bar showing Fernando and the alleged victim voluntarily going to the area where the encounter took place. Meanwhile, as me and my investigator worked hard to free Fernando, police detectives failed to follow-up with the witnesses Fernando told them of during his interview.
I was able to get the case dismissed a month later, but the damage to Fernando’s life and reputation had already been done. He has lost his job, and now faces the daily humiliation of telling prospective employers what happened. He has a criminal record now that shows that he was arrested for rape and sodomy, which will take years for him to erase (and not completely due to the internet).
Think what happened to Fernando Macias won’t happen to you? Think again. What happened to him happens every day. All it takes is an allegation that the sexual encounter was not consensual, and boom, you’re arrested and stuck in jail facing serious charges.
Due to this reason, should police approach their investigation differently when it comes to these kinds of cases? When I was a police officer in a large western city for four years, I investigated 12 rape cases. Only one was legitimate. One. It became so problematic that detectives urged officers to not take the suspect to jail until the alleged victim had been fully interviewed.
What detectives learned back then is that a majority of the alleged victims were lying. Why? They lied to protect their reputation. They lied because a parent, sibling or church member found out and they faced grave social stigmas from the culture they were in. They lied because the guy never called them after the encounter, and they wanted to get even. They even lied because they regretted the encounter altogether. Meanwhile, the wrongfully accused suffered irreparable long term damage through job losses, negative social stigmas, loss of family, a criminal record, and humiliation.
Due to this damage, the question then becomes: should police do more investigation on the credibility and reputation of the alleged victim in adult he-said/she-said rape cases before taking the alleged suspect into custody? I think so. After what I have seen, too many innocent men (and women) end up losing everything due to the false statements made by another person. Police should do more investigations before officially making an arrest. Fernando Macias’s case is a prime example as to why more investigation should be done. Afterall, in Fernando Macias’s case, much of the evidence that got his case dismissed was in plain sight.
*Note: This posting is for educational purposes only and is not meant to replace legal advice from an experienced attorney. Contact an attorney to evaluate your situation. Names have been used with permission
