By Bryan Boender, Attorney at Law
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.
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.
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