Measure 11 sustained its first chink late September, which could lead to the dissolution of Oregon’s controversial statute.

Enacted in 1994, Measure 11 has sent several Oregon convicts to lengthy prison terms for violent crimes, but has yet to produce a case that many opponents predicted in the summer of 1994 – where a convicted person would be forced to serve penalties grossly unbefitting of the crime.

Under the Measure 11 statute, a judge must impose the mandatory sentencing structure and is not allowed to consider the defendants’ character, situation or prior criminal record during sentencing. However, Measure 11 conflicts with Article I Section 16 of the Oregon Constitution, which states:
Excessive bail shall not be required, nor excessive fines imposed.  Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.  In all criminal cases whatever, the jury shall have the right to determine the law, and the facts under the direction of the Court as to the law, and the right of new trial, as in civil cases.

This relationship between the laws has always left the door open for a case in which a defendant narrowly meets the requirements of a crime, but must serve the minimum sentence, the same punishment given to hardened and dangerous criminals.

It finally happened in 2005 and 2006 when a youth volunteer and a family friend were found guilty of sexual abuse. Neither had prior convictions and both instances were universally agreed to be “minimal” in their severity. They both received the minimum sentence of 6 years. Read about Veronica Rodriquez and Darryl Buck.

The Measure 11 attorneys defending the cases immediately appealed. They argued punishments mandated by Measure 11 were disproportionate to the crime and therefore violated the Oregon Constitution.

The Appeals Court agreed minimized the sentences. The state attorneys reacted by appealing themselves, to the Oregon Supreme Court, on the basis that the punishments were not so far out of step to be considered a “rare exception” afforded in the constitution.

In its decision, the Oregon Supreme Court applied the “shock the moral sense” test to determine if the penalties were proportionate to the offense – as required by statute.

To answer this, the high court considered three factors:  1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed for other, related crimes; and (3) the criminal history of the defendant.

After thoughtful consideration, the court narrowly determined by a vote of 4-3 that the punishments were too severe for the crime and did qualify as a rare exception to overturn the Measure 11 sentences. The sentences were reduced.

Contact us for more information on defending your Measure 11 case in Oregon.

Last week, the state of Oregon sent a clear message to DUII offenders when it sentenced repeated drunk-driver John Cole Cargren, 47, to 43 years in prison. Cargen killed four people as a result of driving under the influence on I-84 last October. The DUII conviction is his fifth since 1984.

Cargren was charged with four counts of manslaughter along with the criminal DUII charge. Read Portland’s KATU news coverage of the incident here.

From a DUII law perspective, this tragedy offers an opportunity to point out interesting aspects of DUII law here in Oregon and its relationship with Oregon criminal law. An Oregon DUII is usually a misdemeanor charge. The penalties for a class A misdemeanor conviction vary widely and are determined by several factors relating to the case. A DUI conviction can carry a fine up to $6,500, a lifetime revocation of driving privileges, up to a year in jail, and mandatory attendance in DUII awareness programs. Completion of these programs shows a commitment to altering criminal behavior and can help reduce penalties; Cargen failed to complete any mandated DUII programs until 1999.

After a driver’s third DUII charge, an extremely rare instance but not unheard of as evidenced by Mr. Cargren, the punishments stiffen harshly. At this point the driver can be charged with a Felony DUII according to Oregon criminal law.

Many drivers never get to this point because Oregon DUII law affords several opportunities for DUII offenders to get back on track after a drunk driving conviction. If the offender has a quality DUII attorney, they will be counseled to complete all mandated DUII programs and change their habits to avoid another DUII conviction. A second or third DUII charge is much harder to defend than a first.

Interestingly, under Oregon criminal law DUII offenders cannot enter into a plea agreement, they must plea to their charge. This means that most people who face a DUII charge plead guilty and enter in to the state’s Diversion Program, where after a year, the DUII charge is removed from their record. This structure highlights the state’s commitment to reduce repeat DUII offenders, while simultaneously offering relief to people who commit an unfortunate lapse in judgment.

Drivers in Oregon should be grateful for this opportunity to remove their DUII charge from their record and get on with their lives. But, according to a 2005 study commissioned by Multnomah County, about 1/3 of participants fail to complete the Diversion Program. These drivers are more likely to be arrested for a DUII and face the harsh penalties that await repeat offenders. The state of Oregon hopes to entice DUII violators into this program to lower recidivism.

If you are convicted of a DUII in Oregon, the state affords several opportunities to get your life back. The drivers, who never learn from their mistakes, do not attend programs, ignore their DUII lawyers, and repeat their crimes, risk forfeiture of their freedom. If you are convicted of a DUII, please, follow the sound advice of your DUII lawyer and complete the generous programs offered by the state, I’m sure Mr. Cargen wishes he did.