By WILLIAM FRANCIS
Often, fairness is all a person charged with DUI needs to prevail.
Not every case needs to be resolved in a trial. Some cases should be dismissed. Some can be resolved in a plea.
Unfortunately, in Oregon, a DUI case cannot be "pled down" to a lesser charge. While our neighboring states frequently offer a lesser charge of "wet reckless," as an alternative to a DUI, this option isn't available in Oregon.
And, in Oregon, diversion often is an unattractive option for many because it requires a person charged with a DUI to admit that he or she committed a crime. After a person enters diversion, the record of the arrest and the guilty plea to the DUI can never be expunged. For many professionals, including commercial drivers, pilots, military personnel, and others, a record of a DUI diversion is not an acceptable option. For these reasons and others, there are many who experience the unfairness of having a permanent, criminal record for a first-offense DUI.
Sometimes, the only way to make the system work fairly is to take a case to trial.
Juries are bound by the law to presume a defendant's innocence. At trial, a defendant has the right to confront witnesses and the force the government to prove its case beyond a reasonable doubt. Evidence can be excluded if it was obtained by police improperly or unlawfully. These are the protections guaranteed by the United States Constitution.
By WILLIAM FRANCIS
If you have been accused of DUI, chance are you have never been in trouble with the law. You may believe you have no choice but to plead guilty.
While you always have the option of pleading guilty, it shouldn't be your first move.
It makes sense to talk to a criminal defense specialist with experience defending persons who have been charged with DUI. The criminal justice system encourages people who have no experience in the law to make mistakes. Nice people are usually at a severe disadvantage.
It's normal for anyone to feel remorse, confusion and embarrassment after getting a DUI or being charged with any other crime. But it is a mistake to go to court and plead guilty or enter a diversion program at your first court appearance.
If you have been arrested or cited for DUI in Oregon, the best idea is to have an attorney go to court with you, or appear on your behalf, at your first appearance date. Our judges allow plenty of time for persons charged with DUI to decide what to do. Legal questions arise in every DUI case. There are questions of whether the police made a lawful stop or a lawful arrest, and whether the police followed the law and their training as they gathered their evidence.
DUI evidence often includes testimony about psychomotor abilities, chemistry, biology, pharmacology, toxicology, and various other fields. The reliability of this evidence often depends on standards and procedures of government-operated crime labs, but these are subject to criticisms among scientists who are not employed by law enforcement agencies. Police are not scientists, yet generally they are allowed to testify that their procedures, along with their opinions, are based on science. They are trained to claim the authority of scientists when they testify at trials.
With this experience and training, it is almost always impossible for an unrepresented person to prevail against the police. However, in the jury selection process, and continuing through the opening statements, cross-examination of the police officer, and closing arguments, an attorney can show a jury the weaknesses in the state's case.
I've taken a lot of DUI cases to trial before juries. I've gone to Boston and New Orleans to study the law and science. I've gone to Los Angeles, Las Vegas and Philadelphia for police training programs in DUI investigation. I've been trained by police in Drug Recognition protocols. I've examined and cross examined forensic experts about the toxicology and effects of alcohol, marijuana, prescription medications, and harder substances such as heroin, cocaine, narcotic analgesics, stimulants and opiates.
From this experience, I'm confident telling you that the criminal justice system, in the interests of keeping us "safe," has established a process for prosecuting DUIs that is often an affront to our Constitutional protections of due process.
The "DUI exceptions" to the Constitution are persistently troubling. The police procedures that are brought to bear against innocent drivers who are doing nothing more offensive than traveling through Jackson County, Oregon, at night, are heavy-handed, and the outcome is often already known before the blue lights begin to flash.
Excesses may include arbitrary arrests, based on minimal evidence, that result in criminal DUI charges. Yet hundreds of people surrender to the court system every year without a question. They admit to accusations of crimes they didn't really commit but didn't know they could fight.