Auto Accidents Blog

ORS 20.080 is an Oregon statute which allows for quicker and more attentive resolution of minor personal injury claims.

In a nutshell, ORS 20.080 presently allows a plaintiff to demand up to $7,500 in damages. The defendant (insurance company) must respond in no less than 30 days from receipt of a demand. In the event the insurer makes a "lowball" offer, a plaintiff who then elects to litigate their case and beats the offer, either through a verdict or arbitration award, can then assess and collect additional attorney fees from the insurance company. At the conclusion of litigation, attorney fees are usually substantial when calculated at a rate of $200-$350/hour.

Theoretically, ORS 20.080 helps parties avoid costly and time consuming litigation by fostering earlier settlement. A plaintiff is less likely to overreach and the insurance company is more likely to make a "good faith" offer where there is a potential for high attorney fees to be assessed against insurers following litigation.

ORS 20.080 will further benefit plaintiffs in 2012 when the demand limit increases from $7,500 to $10,000. If you have been in a car accident or otherwise been injured, no matter how serious, do not hesitate to contact an experienced personal injury lawyer to handle your case.

Dog attacks can occur at any time. Nationwide, there are nearly 800,000 dog bites every year that require medical attention. The insurance industry pays out over $1 billion a year in dog-bite claims, which are often covered by homeowners' insurance.

Today is Halloween - a time of elevated risk of dog bites. Many children will be venturing out trick-or-treating, walking up to houses they usually don't visit. And many of those houses have dogs.

Children are highly vulnerable to dog attacks. Indeed, fully half of dog bite victims are children under the age of 12. Moreover, 7 out of 10 dog-bite deaths occur among children under 10.

Overall, counting both adults and children, there are about 16 dog bite deaths every year, according to the Centers for Disease Control.

Motorcyclists are inevitably more vulnerable on the road than the drivers of cars or trucks. Bikers don't sit in an enclosed cab and aren't protected by air bags. If a motorcycle accident occurs, the injuries are often severe.

Fortunately, the types of therapy that are available to treat serious and catastrophic injuries continue to improve. One inspiring example is that of Tim Hemmes, a man who was paralyzed in a motorcycle crash seven years ago. Seeking to overcome his spinal cord injury, he is participating in an experimental program involving prosthetic arms controlled by a brain-computer interface.

Doctors and scientists at the University of Pittsburgh wanted to know whether someone with severe spinal cord damage could move an external object using their brain waves - as transmitted to a "virtual arm." The virtual arm is a prosthetic arm linked to brain waves by a computer.

Where do you go, when you're a registered sex offender and you've done your time behind bars?

Being convicted of a sex offense has many possible consequences. Jail or prison is only one of them. There is also the possible impact on employment and housing opportunities.

The housing problem is becoming more and more challenging. Many municipalities have ordinances restricting where people on the sex offender registry can live. In Portland, in particular, the effective of the restrictive ordinances often seems like a modern-day form of exile.

And there's the problem of homelessness. If you are on the sex offender registry, you are required to notify law enforcement officials of your address. But how do you do that if you are homeless?

The number of registered sex offenders in Oregon is, in round numbers, 18,000. A substantial segment of that group is homeless, though no one knows exactly how many.

The Oregonian recently profiled one such homeless ex-offender, a 51-year-old man named Robert Corry. He sleeps in a battered 1985 vehicle on a lot in Salem near a cluster of Marion County buildings that include the jail and community supervision offices. He previously parked amid the RVs at a Wal-Mart.

The Oregon Court of Appealson Wednesday threw out Alexander Hebrard's conviction for  "Unauthorized Use of a Motor Vehicle" (Oregon's car theft statute) because he was arrested without probable cause.

The case is rather uncontroversial in holding that standing near a stolen car does not give the police probable cause to arrest someone. Nor is there much controversy in the Court's finding that Mr. Hebrard was "arrested" when he was placed in handcuffs without the police having any concerns for their safety.

What is remarkable about this case is that it got this far. The case hinged on whether or not Mr. Hebrard was "stopped" or "arrested" when the police handcuffed him. Oregon law has long defined a "stop" of a person as a "temporary restraint" of that person's liberty or freedom. A police officer can "stop" a person if they have only a "reasonable suspicion" that they have or are about to commit a crime. A stop is supposed to be less intrusive and less restrictive than a full-blown arrest.

A police officer needs to have "probable cause" to make such a full-blown arrest. Probable cause means that it is more likely than not that a crime has been committed by the person being arrested.

In today's case the state argued that because Mr. Hebrard was standing in a driveway 20-30 feet from a stolen car that had recently been driven, the police were entitled to arrest him. Alternatively, they argued that because there were three other people with him at the time, their safety was in jeopardy and they could handcuff Mr. Hebrard without actually "arresting" him.

Most people would have a hard time believing they were not under arrest if a police officer put them in handcuffs. Similarly, most people wouldn't think that they could be arrested because they just happened to be standing near to a recently moving stolen car. ( I bet there is on average a stolen car on every city block in some areas of Portland!)

It took a motion to suppress hearing, a trial, and a successful Court of Appeals case for the State of Oregon to figure it out. Such cases are a reminder about how quickly someone can be unlawfully caught up in the criminal justice system. But for the hard work of criminal defense attorneys Mr. Hebrard's conviction would stand.

A happy result for Mr. Hebrard and the rule of law? Not quite. Mr. Hebrard was convicted on September 8, 2008. He was sentenced to serve 26 months in prison to be followed by one year of post prison supervision for the offense which today was thrown out. Along the way his request for a sentence reduction was denied.

This past Tuesday the local news media was widely reporting a local woman's claim that she had been forcibly raped in broad daylight by two men at a local shopping mall. Yesterday Gresham police announced the woman had fabricated the entire story.

While these particular false accusations were put to rest before anyone was arrested or criminally charged in the matter, that is not always the case. Unfortunately, false accusations of rape or other criminal conduct are not always rooted out by the police prior to criminal charges being brought against innocent persons.

While false accusations of rape are no doubt rare - statistical claims of the prevalence of such claims vary widely and are of dubious utility - as demonsrated by this case, they do in fact occur. In the case recently covered in the news, the report was easily refuted. This may not always be the case however. Consider a hypothetical case of false accusations arriving in a private setting between two individuals. Such a case can devolve into a credibility contest between the accuser and the accused. Such cases have resulted in arrest and prosecution.

Oregon's rules of evidence strictly circumscribe the admissibility of certain types of evidence in such cases. For example, presenting evidence of the accuser's past sexual behavior is generally and strictly forbidden. Evidence that the accuser has made other prior false accusations, while generally admissible must meet rigorous standards before being allowed before the jury.

Oregon defense attorneys defending sexual assault cases must be extremely thorough, well versed in the Oregon Evidence code, and prepared to defend a client the system may have already pre-judge based entirely on the untested testimony of the accuser. Clients are often shocked when they are informed of the standard Oregon jury instruction that "the testimony of one witness, if believed, is sufficient to find the defendant guilty." The "if believed" portion is the critical one. That is where an experienced and creative defense attorney can break the case.

A recent Oregon Court of Appeals decision trots out the tired and well worn statement that the "scent of marijuana, emanating from a residence, without more is sufficient to support a finding of probable cause." Thus reaffirming that the mere odor of marijuana is sufficient to justify an arrest or to secure a search warrant.

There are two major problems with the court's reliance on this proposition: First, it may not be true; Second, if it ever was true, the times they are-a changin' - and it increasingly is becoming less and less accurate.

As to the veracity of the statement and its original underpinnings. The statement seems to have it's origins in a 1988 Court of Appeals case, State v. Slowikoski, 307 Or. 19 (1988). That case however addressed the question of whether a drug-dog sniff of the outside of a storage locker was an unreasonable search for constituional purposes. The sufficiency of the odor of marijuana to supply probable cause to search that locker was never actually before the court.

In 1996, the Oregon Supreme Court then went on to claim in another case that the decision in Slowikoski "implicitly" accepted the proposition that the odor of marijuana alone emanating form the storage locker supplied probable cause to search the locker. (State v. Rein, 324 Or. 178 (1996)) The fact that this was simply not true didn't seem to bother the Court. Ever since, most notably in State v. Derrah, 191 Or. App. 511 (2004) and the recent notation in State v. Dampier, the courts have propogated this error. In fact, the precise issue has never been squarely addressed.

Second, with the rapidly increasing lawful use and cultivation of marijuana for medical purposes under the Oregon Medical Marijuana Act, the odor of marijuana alone is less and less likely every passing day to be indicative of illegal activity. Possession of less than one ounce of marijuan has long been a non-criminal violation in Oregon. Untold numbers of Oregonians possess every day less than one ounce of marijuana without comitting a criminal offense. Additionally, as of July 1, 2011, over 49,000 Oregonians possess medical marijuana cards and over 25,000 people have been designated medical marijuana caregivers.

How long will the Oregon Courts continue to uphold the fallacy that the smell of marijuana alone justifies the arrest or search and seizure of Oregonians and their homes and property? Defense lawyers involved in fighting Oregon marijuana charges need to keep pressing issues such as these.

In an odd decision today the Oregon Supreme Court let stand the search (and resulting conviction) of the purse of a guest in a home that was being searched under an unrelated warrant.

The case, State of Oregon v. Bonnie Lou Walker, leaves open for decision another day the question of under what circumstances does a warrant to search a private residence for evidence of specific criminal activity allow for a search of the personal effects of "nonresident 'social guests'" who happen to be at the residence when the police serve the warrant.

Ms. Walker, by all accounts a guest at the home being searched, was found in a bedroom at the house being searched. She was handcuffed, searched and taken outside by the police while they searched the home. After some time the police located a purse in the bedroom that they confirmed belonged to her. The police searched her purse and found drug evidence. Based in part on that evidence she was convicted of felony drug possession. She appealed her conviction arguing that the search of her purse violated the Oregon and Federal constitutions.

In upholding the search and her conviction, the Court noted that the validity of this particular type of search was an open question under both the state and federal search and seizure standards. While noting at least five different approaches to this question recognized by other jurisdictions, the Oregon Court dodged the issue entirely. Rather it simply held that because this search was performed under a warrant that it was Ms. Walker's burden to prove that the search was unlawful, and that under any approach she had failed to do so. Thus, even if this was an unlawful search, the court let it stand because Ms. Walker and her lawyers had not produced sufficient evidence for the court to judge.

The decision is troubling for many reasons, not the least of which is the cavalier manner in which the Court tosses aside the defense contention that because this warrant so plainly did not authorize the search of Ms. Walker's purse, the government should have had to have proven, as it does in all warrantless search cases, that the search was otherwise reasonable and valid. The decision seems to suggest that as long as the police have a warrant to search premises, they may search anyone at those premises for any reason and it will then be up to the defendant to prove the search was unreasonable.

Moreover, in an area of clearly unsettled law, does the Court put too high a burden on the anticipatory abilities of the defense bar. Which of the five, if any, proposed approaches should Ms. Walker's lawyer have prepared for in the trial court? Could the Court not simply have sent the case back to the trial court for further factual findings needed for it to draw a conclusion?

It appears the Court is content to allow such searches to continue whether lawful or not until another case with similar facts winds its way to the Courthouse steps. This might take a few months or a few years. In the interim, it is a cautionary lesson for oregon criminal defense attorneys in bringing Motions to Suppress the fruits of unlawful searches and seizures.