Workers at Umatilla Chemical Depot in Hermiston will receive $4.2 million in back wages after the U.S. Department of Labor’s Wage and Hour Division investigated its pay practices. The Division found that the workers had been required to clock out for lunch, but that they were not relieved for their lunch breaks. This meant that they worked unpaid through their lunch breaks.

Under Oregon law, employees are required to be relieved of all duties during the meal period. The typical adult employee whose work period is eight hours long is entitled to receive at least a 30-minute unpaid meal period and two paid ten-minute rest breaks. If the employee works longer than 14 hours, she or he is entitled to additional meal periods.

If the employee must work during any part of his or her meal period, the employer must pay the employee for the entire meal period.

Violations of time-clock rules mean that Oregon employees might be working longer hours without being paid for their extra work. The Oregon Bureau of Labor and Industries (BOLI) has the authority to assess civil penalties against employers of up to $1,000 for each violation of the meal and rest period provisions of the law.

There are deadlines to file claims and lawsuits in many wage-and-hour cases. If you feel an employer has violated the laws that protect workers’ rights, please call the law office of Gilroy & Napoli as soon as possible.

Drivers who fail a DUII test will have their Oregon driver’s license confiscated. The arresting officer will issue a temporary permit for 30 days, after which suspension is in effect and the temporary permit is invalid. The length of suspension from the Oregon Department of Motor Vehicles (DMV) for DUII arrests varies as follows:

* For failure of a breath test, DMV suspends driving privileges for 90 days, and for one year if you have any prior alcohol-related offenses in the last five years.

* For refusal to take a breath test, DMV suspends driving privileges for a year, and for three years if you have prior alcohol-related offenses in the last five years.

* For refusal to take a urine test, DMV will suspend driving privileges for one year, or for three years with prior alcohol-related offenses.

* For refusal to take a blood test while receiving medical care after a collision, DMV will suspend driving privileges for 90 days, and for one year if you have prior alcohol-related offenses in the last five years.

* For failure of a blood test for DUII while receiving medical care after a collision, DMV will suspend driving privileges for 90 days, and for a year with prior alcohol-related offenses.

Oregon drivers convicted of DUII who still have driving privileges are required to return any license in their possession to the DMV when a suspension begins.

The Oregon DMV may also suspend driving privileges for DUII or related conviction in another state.

Suspension times also vary for DUII while driving a commercial vehicle.

If you’ve failed a blood test for DUII, you need attorneys like Gilroy & Napoli on your side. And 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. You’ll be glad you did!

Increased DUI Saturation Patrols Scheduled Over Thanksgiving Weekend and Throughout the Holiday Season

Drunk driving is one of America’s deadliest crimes. In 2008, 11,773 people died in highway crashes involving a driver or motorcycle rider with a blood alcohol concentration (BAC) of .08 or higher. The picture for women is particularly disturbing: nationwide, 21% of the 5,473 female drivers killed in crashes in 2008 had BAC levels of .08 or higher.

These frightening statistics are the very reason why police departments all over Oregon, and across the nation, are joining forces, from Thanksgiving weekend to New Years’ Day, to conduct DUII saturation patrols. The goal is not only to arrest impaired drivers, and protect everyone else on the road, but also to create general deterrence through high-visibility law enforcement; when the perceived risk of getting caught by law enforcement increases, the likelihood of choosing to drive while impaired actually decreases.

Gilroy & Napoli, DUII attorneys, would like to encourage each and every one of you to plan ahead and take extra care this holiday season. Please designate a sober driver or arrange for a sober ride home before beginning your evening of celebration.  Safe celebrating, and happy holidays, from Gilroy & Napoli.

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.

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.

In the other 38 states, police departments announce the location of DUI roadblocks well in advance, and choose highly visible areas to reduce the risk of traffic accidents. At the DUII checkpoints, police funnel vehicles through the checkpoint and stop random vehicles to investigate for DUI violations.

In the editorial, the Times states “…we trust Oregon voters might just be fed up enough to reject amending the Constitution to clear the way for random DUII roadblocks…Our objections go to cost and effectiveness of the idea, its potential for abuse and the infringement on the rights of honest citizens to travel uninterrupted.”

Senator Rod Monroe introduced the DUII Bill on January 19, which is now working through the Oregon Legislative system and is slated to be on the next primary ballot.

Opponents to the Bill point to their constitutional rights granted by the Fourth Amendment and want to see the Beaver State remain among the ‘Constitutional Dozen’- states that do not host DUII checkpoints. On their side of the argument is the lack of evidence that roadblocks reduce DUII occurrences, and that the number of DUII arrests has remained stagnant despite similar initiatives. Refer to our Portland DUII resource page for information on DUII arrests in Portland.

In its own editorial against the Bill, the Oregonian rehashed an old resolution to the DUII roadblock debate. They advocate a solution similar to a 1989 bill that would de-criminalize DUIIs charged at roadblocks. Guilty drivers instead would face civil penalties, like forfeiture of driving privileges or a fine.

In their view, it would accomplish the same goal Senator Monroe’s Bill intends to realize: reduce the amount of drivers who risk a DUII and the safety of others on Oregon roads.

The issue comes down to weighing the rights of citizens to burdensome search and seizure versus the public’s right to rid Oregon roads of drunk drivers. We will keep our readers up to date with news about this developing bill, and other DUII legislation in Oregon.

Gilroy & Napoli are DUII Attorneys in Lake Oswego, Oregon. They do not claim support or disapproval of the proposed law, but only strive to educate the public of developing news related to DUII law in Oregon. If you are charged with a DUI in Oregon, contact Gilroy & Napoli for more information on defending your DUI.

The new law would expand the definition of an ‘intoxicant’ to cover commonly abused drugs, such as Nyquil and Robitussin.

Chuck Hayes, chairman of the Governor’s Advisory Committee on DUII, spoke in support of House Bill 2491 to the House Judiciary Committee on Monday and why explained why Oregon should adopt this change.

“Right now if a driver is stopped on the highway for bad driving and there is some probable cause that person is under the influence, then if that (non-controlled substance) is the only substance that is causing the impairment,” explained Hayes. “Then that person cannot be convicted because it does not fall within our definition of an intoxicant presently in the state of Oregon”

Hayes, a former Oregon State Police Officer, recounted three confrontations with impaired drivers on Oregon roads, who turned out to be impaired by non-controlled substances. Each driver eventually cleared the limited Oregon DUII laws. Hayes also pointed out to the committee that 40 of the 50 states now have DUI statutes in place that include intoxication from non-controlled substances. Hayes says this legislative trend is in response to the escalation in abuse of these readily available drugs, especially by young drivers.

Hayes’ examples included two drivers who were charged with a DUII in Portland and another in Albany, Oregon. These drivers displayed common characteristics of impaired driving, including slurred speech and lethargy. None of the drivers were even capable of performing standard sobriety tests. However, each driver registered a .00 BAC, and their DUII charges were dropped.

Other states, including Washington, have realized multiple benefits from expanding the definition of ‘intoxicant’ in their DUI law. Law makers in Washington state, which adopted a similar amendment to their DUI law in 1997, say they have benefit from safer roads, and the opportunity to help citizens with addictions to these drugs through court-ordered counseling programs. These states can also raise awareness, through PSAs and other initiatives, of the abuse of these drugs by demonstrating they can cause impairment equal to excessive alcohol abuse.

Hayes anticipates criticism from those who believe the new law will overreach and convict innocent drivers who suffer from unintended impairment from prescription or over-the-counter drugs.

Hayes defends the expansion of the Oregon DUI law by pointing out that all of these drugs come with clearly labeled warnings and instructions to avoid intoxication. He outlines one incident where a driver who had forgotten his anti-depressant medication in Portland after leaving town, returned, and compensated by ingesting five days worth of his medication, even though the medication bottle adorned a warning against this kind of use. The driver ended up weaving between traffic lanes on I-5 before being stopped by police and charged with a DUII that was later dropped.

“It comes back to responsible use and awareness,” Hayes concluded.

Gilroy & Napoli are DUII Attorneys in Lake Oswego, Oregon. They do not claim support or disapproval of the proposed law, but only strive to educate the public of developing news related to DUII law in Oregon. If you are charged with a DUI in Oregon, contact Gilroy & Napoli for more information on defending your DUI.

• I have never been convicted of a felony DUII in Oregon or any other state.
• On the date that the petition is signed, there are no DUII charges pending in Oregon or any other place against me for operating a motor vehicle under the influence of alcohol, a controlled substance or an inhalant, or for having a blood content over the allowable level.
• I am not participating in a DUII Diversion program or any similar program in Oregon or anywhere else except a program I may have entered as a result of being charged with the present DUII.
• There are no charges pending against me for any degree of aggravated vehicular homicide, murder, manslaughter, criminally negligent homicide, or assault that resulted from the operation of a motor vehicle.
• During the 10 years prior to the presently alleged DUII charge, I have not been convicted in Oregon or anywhere else for the operation of a vehicle while under the influence of alcohol, a controlled substance, an inhalant, or having a blood alcohol content over the allowable limit.
• During the 10 years prior to the presently alleged DUII charge, I have not participated in a DUII diversion program or any similar rehabilitation program in Oregon or any other place.
• During the 10 years prior to the presently alleged DUII charge, I have not been convicted in Oregon or any other place on any charge of an offense in any degree for aggravated vehicular homicide, murder, manslaughter, criminally negligent homicide, or assault that resulted from the operation of a motor vehicle.
• The DUII that I am charged with did not involve any deaths or physical injury to any other person.
• At the time of the alleged DUII, I did not have a commercial driver’s license.
• At the time of the alleged DUII, I was not operating a commercial motor vehicle.

Is My Teenager’s Life Ruined?
The penalties for a DUII offense in Oregon vary immensely.  Courts are more lenient to those without prior convictions, and who complete the steps put forth by the court.  At this pivotal point, your child needs a DUII attorney to make sure this mistake is addressed properly.  A DUII conviction can have enormous life consequences, including denial of admission into colleges or universities.  Also, a DUII conviction could prevent your child from pursuing certain careers, such as becoming a teacher.

What questions did the Officer ask my teenager?
It is common practice for an officer to ask an accused driver several questions during an arrest.  Law enforcement officials are aware that often times individuals will speak freely when answering these questions, and not consider the legal ramifications of their words.  Their answers may hurt the defense of their charge.  Therefore, it is important to understand the type of questions typically asked during a suspected DUII traffic stop.

Common DUII questions:

• Have you had any alcohol, and if so, how many drinks have you had?
• Have you taken any prescription or illegal drugs in the last 24 hours?

Contact a Professional DUII Attorney
Oregon DUII laws are getting stricter.  You need an experienced attorney who will help you successfully defend your rights.  John Gilroy and Jeff Napoli are former Deputy District Attorneys who understand both ends of the process.  They can help you understand it as well.  Contact Gilroy & Napoli today for more information about how best to handle your teenager’s DUII charge.

The Diversion Program lasts one year, and requires that all elements of the program be completed to dismiss your DUII, including payment of upfront fees, completion of education courses, attendance at a Victim Impact Panel presentation, abstinence from usage of intoxicants, and maintaining a clean driving record.  Be aware, however, that there may be downsides in choosing to participate in a Diversion Program.  Therefore, you should contact an experienced Oregon DUII Attorney to better understand the specific requirements pertaining to your charge, and which of your legal rights could be impacted by a Diversion Program.

Oregon DUII Diversion Program Eligibility
Diversion program eligibility is based on a variety of criteria; including, but not limited to your driving history, your treatment history, the severity of your infraction, and whether you have a Commercial Driver’s License.   Specific Oregon DUII Diversion Program eligibility can be found here: DUII Diversion Eligibility Factors.

Oregon DUII Diversion Program Costs & Application Process
Participation in Oregon’s DUII Diversion Program requires a filing fee and a screening fee.  The screening fee covers the required alcohol and drug evaluations for the program.  Both of these fees are mandated by statute.  However, there may be additional costs depending on treatment and associated costs for the Victim Impact Panel Program.  Diversion Program filing fees are due at the time of petition for entry into the program.

What happens to my driver’s license while in the DUII Diversion Program?
If you are arrested for a DUII and fail a breath test or refuse to take a breath test, your license will be suspended by the DMV for at least 90 days, but the suspension can last up to three years depending on your prior DUII record.  However, you have an opportunity to challenge this suspension by requesting a hearing with the DMV within ten days of the arrest.  In addition to a possible DMV suspension, the courts in Oregon will suspend or revoke driving privileges.  However, the court will not impose this additional suspension if you successfully complete the terms of your Diversion Program Agreement.  A qualified DUII attorney is crucial to ensure that you receive the best possible advice and outcome.  Gilroy & Napoli has extensive experience with DUII and Driving While Intoxicated (DWI) cases in the Portland metro, and the entire Oregon region.  Contact us for more information.

Will a DUII go on my record by entering a DUII Diversion Program?
If you successfully complete the Diversion Program your record will show a DUII diversion, not a conviction.

Rights Waived by Entering the DUII Diversion Program

A person must waive certain rights to participate in the DUII Diversion program.  These rights include:
1.  Right to jury trial
2.  Right to see, hear, and question all witnesses who testify against the defendant at trial
3.  Right to remain silent
4.  Right to subpoena witnesses and evidence in defendant’s favor
5.  Right to have a lawyer’s assistance at trial
6.  Right to testify at trial
7.  If the defendant does not testify at trial, the right to have the jury told they cannot hold that decision against defendant
8.  Right to require the state to prove guilt beyond a reasonable doubt
9.  Right to appeal unless defendant can make a colorable claim of error
10.  Right to raise defenses or challenge evidence

Your Lawyer and Your Diversion Program
Entering a DUII Diversion Program provides the opportunity to benefit from reduced overall court costs.  In addition, the penalty of having your driver’s license suspended and the possibility of jail time for being convicted of a DUII will be removed upon successful participation in a DUII Diversion Program.

Regardless of the details of your case, you need an experienced Oregon DUII attorney to decide which actions are right for you.