By Bryan Boender, Attorney at Law
Reckless or negligent driving behaviors that cause the death of another person are criminal homicide crimes that have serious consequences under Oregon Law. Vehicular homicide cases may also result in mandatory minimum sentences under Measure 11. In all criminal homicides, the state must prove beyond a reasonable doubt that the driver had a culpable mental state and caused the death of another person.
You need an experienced criminal defense team if you or your loved one are under investigation or facing any manner of vehicular homicide charges. At Boender & Payment, Attorneys, our criminal practice team has experience defending homicide crimes. We are also experienced defending cases of drunk or drugged driving (DUII). Our firm can scale your defense team to match your case with the right expert witnesses and professional consultants. We have worked with experts in crash reconstruction, toxicology, psychopharmacology, mechanical engineering and other disciplines to challenge the state’s case and to present the best defense for our clients during negotiations or through trial.
Oregon prosecutors may charge a person with vehicular homicides in the following ways:
Aggravated vehicular homicide: A criminal homicide committed with criminal negligence, recklessly, or recklessly with extreme indifference to the value of human life by a person operating a motor vehicle while under the influence of intoxicants in violation of Oregon DUII law may be an aggravated vehicular homicide. In addition, the state also has to prove one of several prior homicide convictions and that the prior homicide was the result of driving a motor vehicle. A conviction for aggravated vehicular homicide carries a 240-month mandatory minimum sentence under Measure 11.
Manslaughter in the first degree: A criminal homicide committed recklessly with extreme indifference to the value of human life. A conviction for manslaughter in the first degree carries a 120-month mandatory minimum sentence under Measure 11.
Manslaughter in the second degree: A criminal homicide committed recklessly. A conviction for manslaughter in the second degree carries a 75-month mandatory minimum sentence under Measure 11.
Criminally negligent homicide: A criminal homicide committed with criminal negligence. A conviction for criminally negligent homicide does not carry a mandatory minimum sentence.
You need an experienced homicide defense attorney to lead your defense team in any vehicular homicide case.
Call us today to discuss a strategy that works for you. (541) 685-1288.
By Bryan Boender, Attorney at Law
Domestic Violence and Your Gun Rights
A domestic violence criminal misdemeanor conviction will result in the loss of your right to possess firearms or ammunition. A felony conviction of any kind will also result in a loss of your right to possess firearms or ammunition. These gun bans provide criminal penalties under both federal and Oregon state law for possession of firearms or ammunition by those with domestic violence criminal convictions.
If you have been charged with a domestic violence offense, your lawyer must advise you on the collateral consequences of a conviction, including the loss of your right to possess firearms.
The Federal Domestic Violence Offender Gun Ban
The federal criminal code at 18 U.S.C. § 922 provides that it is a federal felony offense for a convicted felon or a person convicted of a misdemeanor crime of domestic violence to possess any firearm or ammunition. Section 922 also bans felons from possessing firearms or ammunition. Also known as the “Lautenberg Amendment,” this prohibition on gun ownership for misdemeanor domestic violence convictions applies to any “misdemeanor crime of domestic violence” under Federal, State, or Tribal law. See 18 U.S.C. 921.
Your lawyer should advise you on whether your potential or prior convictions fall under the gun ban for individuals convicted of misdemeanor crimes of domestic violence.
The Oregon Domestic Violence Firearms Surrender Law
The Oregon criminal code at ORS 166.255 establishes a permanent ban on possessing firearms or ammunition by those convicted of a “qualifying misdemeanor.” The law defines a qualifying misdemeanor as “a misdemeanor that has, as an element of the offense, the use or attempted use of physical force or threatened use of a deadly weapon.”
In addition to Oregon’s domestic violence gun ban, ORS 166.256 provides that the courts shall order a person to relinquish their firearms or ammunition. The law also requires newly convicted persons to surrender their firearms within 24 hours pursuant to the court’s order. A person must file a declaration under penalty of perjury that states whether they possessed any firearms at the time the order was entered, transferred their firearms or ammunition, or asserts their constitutional right against self-incrimination.
Your lawyer must advise you on whether your conviction falls under ORS 166.255. You should seek legal advice from a criminal defense lawyer on completing the Declaration of Firearms Surrender because you could face additional criminal penalties.
Domestic violence charges are serious offenses that have far reaching consequences. In some circumstances, you could face a Measure 11 prison sentence in addition to the loss of your rights own or possess firearms.
No one ventures into marriage anticipating that it will end at some point. However, the truth is that various challenges can cause even the best marriages to end in separation or divorce. Other times, a partner dies while married. One of the issues that arise in divorce is disagreements over who keeps which assets. Prenuptial agreements help to avoid such problems.
After deciding to get married, people often seek advice from their family, friends, or even workmates. Rarely do people think of consulting a professional first. Unfortunately, seeking advice on legal matters from your friends or family members, and failing to consult a qualified attorney has its disadvantages. Some of the information your friends, workmates, or family members share with you about prenups may be fallacies. Misconceptions about prenup agreements can prevent you from signing one, only for you to regret in the future.
Below are some common misconceptions about prenup agreements and it is time to debunk them.
Signing a Prenup Means You Do Not Believe That Your Marriage Will Last
Whether or not you and your spouse have a prenup, you can never tell how long your marriage will last. Different marriages deal with challenges in their own way, but a prenup doesn’t have to signify that the marriage is doomed from the start. For example, if either you or your partner cheats and commits adultery, you may end up separated or divorced. On the contrary, you may also end up dealing with the situation through counseling and end up reconciling. Events like this are usually unable to predict and having a prenup to establish what happens to your assets after the marriage is a good way to protect yourself and your family from the unexpected.
Signing a Prenup Shows Lack of Trust Between Spouses
When signing a prenup, you and your spouse engage in one of the most open conversations you will ever have in your marriage. Sharing details about the money and property you each have, and discussing worst-case scenarios related to your marriage and your future financial goals establishes trust and honesty. For instance, suppose you were previously married and have children from that previous marriage, it is important that you establish the financial security of your non-joint children's future as well as your spouse’s in the event of death or separation.
Prenup Agreements are Only for Celebrities and the Wealthiest Couples
Wealthy couples may sign prenups more than the average couple, but these agreements are not only for them. Prenuptial agreements can highly benefit even those with no significant assets in various ways. For example, prenups can save you from paying off debts that your partner had before marrying you. Therefore, even if you do not consider yourself wealthy, you might consider signing a prenup for other reasons.
Prenuptial Agreements are Always Biased
In some instances, one partner might try to suggest ideas that the other feels are biased. Therefore, you need to involve a qualified attorney when signing a prenup agreement to explain your side of the issue. An attorney will ensure that all terms set forward are fair to each partner. Additionally, under ORS 108.725, the court cannot enforce a prenuptial agreement if it determines that it is unconscionable.
If you need more information on prenuptial agreements or would like to seek our legal services, contact us today to schedule a consultation.
Measure 11 offenses carry mandatory minimum prison sentences ranging from five years and ten months to 25 years, depending upon the specific crime. These sentences are served without the possibility of probation, parole or early release.
Or. Rev. Stat. § 137.712 provides limited exceptions to Measure 11 mandatory minimum sentencing. For certain crimes, the Court may exempt the defendant from these minimum sentences and impose a sentence less than the mandatory minimum if the defendant and the circumstances of their crime fit the necessary legal criteria.
Not all Measure 11 crimes are eligible for a “safety valve” exemption. Not all defendants will qualify. In order for the Court to depart from a mandatory minimum, the Court will hold a hearing where it must make additional and specific factual findings and legal conclusions on the record in open court. Your attorney should investigate the circumstances of the offense and your background to determine whether the “safety valve” is applicable to your circumstances.
If you or a loved one have been charged with a Measure 11 crime in Oregon, it is important that you speak to an experienced attorney as soon as possible.
Demand a lawyer. Stop talking. Do not argue. Do not resist. Do not run.
The answer is really that simple. You are almost certainly not going to talk your way out of an arrest. The police do not make arrests without an arrest warrant or having sufficient evidence against you.
You have a fundamental constitutional right to refuse to answer questions. You have a right to a lawyer. We have seen too many cases where the prosecution would not have had a strong case but for a person’s words or actions during their arrest or questioning.
You should exercise your right to remain silent and demand a lawyer.
Have You Really Been Arrested? Are You Free to Leave?
You have been arrested when a law enforcement officer restrains you or takes you into custody in order to charge you with a crime. Law enforcement may make an arrest when an officer has “probable cause” that a crime has occurred after gathering evidence against you or when a court issues an arrest warrant. The police may then take you into custody for booking, or under some circumstances, they may issue you a citation with a future court date.
You should ask the officer “Am I being detained, or am I free to leave?” Sometimes police will try to keep you in the vicinity, and keep you talking, even though you are legally allowed to leave. The purpose of their questioning is to investigate a crime. Your words are evidence that they will use against you.
You can leave unless they are ordering you to stay. If you have been ordered to stay, you have probably been arrested. You are under arrest because the officer already has enough evidence to arrest you or a court issued a warrant for your arrest. You should consider invoking your rights.
Stop talking. Demand a lawyer. Do not argue. Do not resist. Do not run.
Exercise the Right to Stay Silent and the Right to an Attorney
You have a fundamental constitutional right to not answer questions from the police. You must clearly and simply state that you wish to remain silent and want an attorney. There are no “magic words.” You can say anything similar to “I want a lawyer. I wish to remain silent.”
You are not required to answer any questions from law enforcement officers, and you are not required to talk at all. You have the right to stay completely silent, and you should exercise that right. After all, “anything you say can and will be used against you in a court of law.”
If you cannot afford an attorney, an attorney will be appointed to you by the court – for free. You have the right to legal representation, even if you cannot afford it.
If you are held in jail, do not discuss your case with anyone other than a lawyer. Note that the police can listen to and record any of your phone calls from jail, except for your calls with an attorney. It is natural for your loved ones to ask you questions about your case. Be warned: Your calls to your own family members will be used against you.
Avoid Threatening Behavior or Language, Do not argue, Do Not Resist, and Do Not Run
These rules apply during your entire time interacting with the police, from when they stop you until whenever you are released.
You should avoid saying or doing anything that can possibly be seen as threatening, not just things that are actually threatening. If you are in a car, keep your hands on the wheel or dashboard. You also should not reach below the dashboard of your car, even to scratch an itch, because it might look like you are going to pick up a weapon. You could be shot and killed. Remain calm.
Speaking of reaching under the dashboard, you should always make sure that your hands are visible. Do not resist arrest or restraint, and do not try to flee the scene. Do not touch any police officer.
Do not make any threats or argue. Stay calm and be respectful. Your words and conduct will be used against you in court.
Remember: You probably should not be talking to police in the first place.
As part of the divorce proceedings, an Oregon judge may find that one spouse, who earns a substantially higher income, must pay alimony to the lower-earning spouse. Alimony payments may also be pre-determined by couples in a prenuptial or postnuptial agreement. Alimony payments may support living expenses and/or educational expenses for the former spouse or serve as reimbursement for support they provided to their spouse during the marriage. It is always the preference of the court to honor the agreement of the parties, as it saves the court time and money if the individuals are able to come to an agreement on their own. However, the court will determine the alimony amount, when necessary, by weighing a number of factors, such as how long the couple was married, the sacrifices and contributions that were made to the marriage by each party, and the relative ability of each party to support themselves financially.
Changing the Amount
The amount of alimony that you agreed to, or that you were ordered to pay, was based on your financial circumstances and responsibilities at the time, and we all know that things can change. If your financial circumstances have changed—for instance, you have lost your job or taken a lower-paying job—or, the financial need of your ex-spouse has changed—for instance, they are now earning more than they were, or have remarried—you can file a petition to have the alimony amount adjusted accordingly.
It is important to note that generally the change in your circumstances must be involuntary and unexpected. In other words, if you quit your job, the court may not take pity on you since it was your choice to leave. However, there is a possible exception when you take a lower-paying job as part of a longer-term career plan. In these instances, if you can show that you took a lower-paying job in good faith, for instance, because it offered benefits or more stability or better potential for career growth, then the court will still consider reducing the amount of alimony you have to pay, even though it was a voluntary decision.
What to do if You Lose Your Job
If you lose your job, it is important to act quickly and to continue making any scheduled payments unless you have received different advice from a licensed Oregon Spousal support Attorney. Although you have the grounds to ask the court to adjust the amount of your alimony payments, losing your job does not automatically give you the right to stop payments—you still have to ask the judge permission first. Start by filing a Motion to Modify Alimony, or by having your lawyer file this. If successful, this motion can be backdated to apply through the date you served your ex-spouse with the motion to modify.
After you file, the court will schedule a hearing to determine whether to adjust your payments. At this hearing, you will need to present evidence to support the change in financial circumstances that you are alleging.
Contact a Spousal Support Attorney
If you have questions about spousal support payments, or your financial circumstances have changed and you need your payments adjusted, contact an experienced Spousal Support Attorney today.
The Oregon Criminal Code provides that a person is considered incapable of consenting to a sexual act if the person is:
The law further provides that “a lack of verbal or physical resistance does not, by itself, constitute consent but may be considered by the trier of fact along with all other relevant evidence.” See ORS 163.315
The Rules of Consent
A person under 18 cannot consent to a sexual act.
Oregon Law provides that a person under 18 years of age cannot consent to a sexual act. In Oregon, you must be at least 18 years old to give valid consent. Consent given by an individual under the age of 18 will not be presumed valid. However, there may be defenses available, such as the defense specified in ORS163.345, nicknamed the “Romeo and Juliet” defense. This defense applies when two individuals who are both at least 15 years of age, and are within three years of one another’s age, engage in intercourse. Applied successfully, this defense rebuts the assumption that the consent is de facto invalid because one or both of the parties were under 18 years old. However, both individuals must still have voluntarily consented.
Your ignorance or mistake may not be a defense. ORS 163.325 provides that in certain sex crime prosecutions ignorance or mistake is a limited defense when it comes to knowing the age of your sexual partners. An affirmative defense may apply if the defendant reasonably believed the child to be above a specified age at the time of the alleged offense for crimes that depend on the child being under a specified age other than 16. If a child is under 16 years of age, however, it is not a defense that a defendant reasonably believed the child to be older than the age of 16. Even if they showed you a fake ID, it is a strict liability offense to engage in sexual activity with a minor under 16 years of age.
Other Factors for Consent: Physical Helplessness, Mental Incapacitation or Mental Defect.
In addition to age, other factors must be met in order for consent to be presumed valid. For instance, consent must have been given by an individual of sound mind. If there is evidence of mental defect, the person was unconscious or asleep, whether the person was under the influence of drugs and/or alcohol, or even if the individual believes that they were drugged, these circumstances could be the basis for and arrest and prosecution for major felony sex crimes.
Importance of Verbal Consent
Under Oregon law, lack of physical or verbal resistance alone is not enough to find consent. In these instances, a judge or jury will look into the circumstances surrounding the alleged crime in order to determine of whether a person was capable of consent. However, the best way to avoid difficult legal situations in court is to ensure that you have enthusiastic and verbal consent from your sexual partner before anything happens.
Contact a Criminal Defense Attorney
If you or your loved one has been accused of sexual misconduct, contact a lawyer immediately. Sex crimes in Oregon can carry mandatory minimum sentences under Ballot Measure 11. In some circumstances, Jessica’s Law may also apply, which carries a mandatory minimum of 300 months imprisonment.
What you need to know when accused of sexual misconduct at school
You had a great weekend. You met someone new. Now it’s Monday, and you just received a Student Conduct Notice. Your immediate response is required. Call a lawyer first.
How you respond to a student conduct notice could impact more than just your college career because you are being investigated for sexual misconduct. The University can expel you. The school will share your information with law enforcement agencies and criminal prosecutors. You could be be charged with a crime. Whatever you said to the school can later be used against you in court. You could become a convicted felon. You could lose the rights to vote, to sit on a jury, or to own or possess a firearm. You can be denied future employment and housing. You could go to prison. You may have to register as a sex offender.
Your parents sent you to college to get a degree, not a criminal record. Call a lawyer first.
What is sexual misconduct? Sexual misconduct is a violation of your school’s student conduct code relating to sexual harassment or sexual violence. Each school has a slightly different version of a sexual misconduct policy. The Student Conduct Code at your school provides the applicable definitions and describes the offenses that amount to sexual misconduct. In many circumstances, the same conduct that violates a school’s conduct code also amounts to a sex crime under Oregon law. Violation of a the sexual misconduct code leads to a negative notation on the student transcript, suspension from school, or even a permanent expulsion.
Why is the school involved in off-campus conduct? The police are not the only authorities off campus. It is not a defense to a student conduct code violation that the behavior occurred off campus because college and university students in Oregon may be held responsible for their misconduct both on- and off-campus. For example, the UO, OSU, and PSU conduct codes all provide for jurisdiction over their students’ off-campus behavior.
What can I expect from the student conduct process? Federal law requires colleges and universities to prevent and respond to reports of sexual violence. Title IX of the Educational Amendments of 1972 (“Title IX”) is a federal civil rights law that prohibits discrimination on the basis of sex in federally funded educational programs and activities. The U.S. Department of Education has provided universities specific guidance for handling sexual harassment and sexual violence. On April 4, 2011, the Office for Civil Rights (OCR) in the U.S. Department of Education issued a Dear Colleague Letter on student-on-student sexual harassment and sexual violence (“DCL”). Available at http://www.ed.gov/ocr/letters/colleague-201104.html. Under that federal mandate, colleges and universities have eliminated many procedural due process rights that protect the rights of accused students.
What rights do I have in the student conduct process? An administrator will not typically advise you of your constitutional rights. You may be told that the conduct process is not a criminal process. You may even be told that federal law protects your student information. Do not be lulled into a false confession. The administration shares information with law enforcement. Campus administrators have eliminated most of the procedural safeguards that should be provided to you. You will not be permitted to cross-examine witnesses. You may be denied the right to face your accuser. You will not have subpoena power to compel the production of evidence or the attendance of witnesses in your favor. You will have access to some records and information, which may include police reports and witness statements. However, these reports may be heavily redacted and extremely difficult to read. You will have some opportunity to respond to that material. At a hearing, you may be permitted to submit some questions to the accuser or witnesses. Your questions will be less effective because an administrator may choose to ignore or rephrase your questions to make them less effective.
The major universities in Oregon provide access to their student conduct codes online. See e.g. University of Oregon Student Conduct Code at https://policies.uoregon.edu/vol-3-administration-student-affairs/ch-1-conduct/student-conduct-code, Oregon State University Student Conduct Code at http://leadership.oregonstate.edu/sites/leadership.oregonstate.edu/files/policies/student_conduct_2-25-15_576-15.pdf, and Portland State University Student Conduct Code at https://www.pdx.edu/dos/psu-student-code-conduct#Jurisdiction.
What can I do if my school denies me my rights? You may have remedies in state or federal court when your school ignores its own procedures or deprives you of your constitutional rights. Your advisor or lawyer should be able to explain those rights to you. However, an advisor provided to you by your college or university may be contractually prohibited from representing you in court to review the record of your case or from bringing a lawsuit against your school for violating your constitutional rights. You should consult with a private attorney with experience in civil rights, criminal defense, and student conduct defense in order to fully understand your options.
Why do I need a lawyer to handle a university sexual misconduct allegation? Your college or university has accused you of misconduct that may also amount to a sex crime. Anything you say to the college or university can and will be used against you in a criminal prosecution. You are facing a potential prison sentence and sex offender registration. You need a lawyer.
About Bryan Boender. Bryan Boender is a criminal defense lawyer in Eugene, Oregon. He practices student conduct defense. Mr. Boender has represented University of Oregon and Oregon State University Students accused of Title IX offenses, sexual misconduct, sexual harassment, and sexual violence. Bryan Boender also has experience representing fraternities and students accused from misdemeanor offenses and major felonies, including Measure 11 offenses.
By: Bryan Boender, Attorney