Tuesday, October 1, 2013

Dismissal Before Trial on Shooting Case

by Gig Wyatt
Attorney at Law
Harris, Wyatt, and Amala

                The client was charged with Attempted Assault I with a Deadly Weapon, Unlawful Use of a Firearm, and Theft I arising out of a shooting in East Marion Co earlier this year.  The prosecutor wanted 5 years prison and threatened to charge the client with Attempted Murder if he did not accept a plea.

 The prosecution finally had enough and dismissed all charges prior to trial. The purported victim, an off-duty out-of-state police officer, called 911 to report that the defendant had punched him in the face, stole his duty weapon, shot at him, and fled the scene. His information, however, was soon learned to be largely fabricated.

Gig Wyatt discussed the strategy of when to divulge certain facts to the prosecution.  “Our investigation revealed several key witnesses that were overlooked by the police investigation. My private investigator interviewed witnesses that clearly impeached the off-duty officer. His credibility, or lack thereof, was essential.   Once we disclosed our information  to the prosecutor, they dismissed all charges.”  Shoddy investigation by the police is a prime target for criminal defense.
                Gig Wyatt practices criminal defense in Marion County and travels throughout the state. He has 28 years of experience and is a member of Oregon Criminal Defense Lawyers Association and National Association of Criminal Defense Lawyers.


from the web site www.SalemOregonCriminalDefense.com :

Your Rights are Important - An arrest is a seizure under both the United States Constitution, and the Oregon Constitution, and an officer must have probable cause that you have committed a crime.  The legal concept of probable cause has both a subjective and an objective component. An officer must subjectively believe that you have committed a crime, and his belief must be objectively reasonable under the circumstances.
 

NOTICE: The purpose of this website is to provide basic and general information about Criminal Defense laws in Oregon. This publication should not be interpreted as legal advice, nor substituted for the specific legal advice of an experienced attorney.


Combined Alcohol and Controlled Substance DUII Dismissed


                The client was seen by the police sleeping in her vehicle in a parking lot with an open container in the center console.  After knocking on the window, the client woke up and began a conversation with the officer.  During the conversation, the client admitted drinking and that she took various prescription medications.  Field sobriety tests were recorded, and the officer reported that the client “failed” all the tests.  After arrest, the investigating officers joked together asking “what do you think she’ll blow?”  Laughing his response, one of the officers said “at least a .13%.”  The client took the breath test which was a .05%.  Despite the low breath test, the state continued to prosecute and theorized that the prescription medications combined with the alcohol to cause the client to be under the influence. 

                The client was eligible for the diversion program, but decided to accept the significant risk and proceed to trial.  Prior to trial, Mr. Snow repeatedly told the prosecutor how weak the state’s case was.  “When a combined theory of controlled substance and alcohol is alleged, the state needs to prove that the Defendant was, in fact, under the influence of controlled substances at the time of driving,” said Snow.  “Without a Drug Recognition exam, or a urinalysis test, the state would be asking the jury to speculate that controlled substances were affecting my client at the time of driving.”  One week before trial, the prosecutor elected to dismiss the case.  The prosecutor told the judge, “Your Honor, I think Mr. Snow would just have too much fun my officer’s investigation.” 

submitted by DUI attorney Randy Snow
Harris, Wyatt and Amala
Salem, OR

Tuesday, July 2, 2013

Motion Practice Can Limit or Dismiss Evidence in DUI Case

by Gig Wyatt
Attorney at Law
Motion practice is another effective way to limit evidence from the prosecution. It can lead to a dismissal if enough evidence is suppressed. A recent motion to limit evidence submitted by Gig Wyatt limited the testimony of the arresting officer regarding the Horizontal Gaze Nystagmus(HGN), a field sobriety test commonly used in DUII cases. 

In that case, the officer obtained 2 clues of impairment know as “lack of smooth pursuit” while observing the defendant’s eyes. He was unable to get additional clues known as “nystagmus at maximum deviation” and “nystagmus prior to 45 degrees.”  The FST testing manual requires that the test be done in a complete manner in order to be scientifically valid. Since he did not get at least 4 of the 6 clues ( he only got 2), Wyatt requested that he not be able to testify that he observed 2 clues of impairment. 

An expert for the prosecution was consulted who agreed with Wyatt. The prosecution conceded that the test was not performed as technically required and the court agreed to limit the evidence so that the officer could not testify as to those clues of impairment.   Seemingly minor steps such as this to limit the  evidence battle often prove helpful in winning the war.


 Gig Wyatt
Attorney at Law
Harris, Wyatt, and Amala
5778 Commercial St SE
Salem Or 97306
503-378-7844


Information about the " Actual Cases" is provided here only for educational purposes related to real life situations in DUI defense. This information should not be interpreted as having the same results for your case, legal advice, nor substituted for the specific legal advice of an experienced attorney.

Not Guilty on a .16% DUI

by Gig Wyatt

Randall Snow is an attorney at Harris, Wyatt, Amala LLC (back row, 2nd from right), who specializes in criminal defense and DUII. Last month’s Not Guilty verdict on a .16% DUII was evident of his trial skills.  

In that case, an officer observed defendant’s vehicle leaving a local brewery, then circled the block and noticed the vehicle in a shopping center parking lot. The defendant was walking away from the vehicle. The officer engaged the defendant.  He testified he observed signs of impairment, had defendant perform Field Sobriety Tests, and arrested the defendant for DUII. The defendant blew a .16% on the model 8000 intoxilyzer.

Snow cross-examined the officer,  effectively utilizing testimony from his DMV hearing and pointing out inconsistencies with the officer’s testimony at that hearing and the trial.  He thus exposed the exaggeration of the officer with respect to the FST’s  Despite the officer’s testimony that defendant admitted he drove, Snow pointed out that he may have been covering for someone else who may have driven and exposed the officer’s poor investigation.  Snow pointed out the State had failed to prove anything about the breath test, let alone that it was reliable. A jury took only 30 minutes to find the defendant Not Guilty.



 Gig Wyatt, Randall Snow
Attorneys at Law
Harris, Wyatt, and Amala
5778 Commercial St SE
Salem Or 97306
503-378-7844


Information about the " Actual Cases" is provided here only for educational purposes related to real life situations in DUI defense. This information should not be interpreted as having the same results for your case, legal advice, nor substituted for the specific legal advice of an experienced attorney.

Monday, April 8, 2013

Motion to Suppress Wins DUII case



Gig Wyatt, a DUI Attorney in Salem, Oregon Wins Another DUI Case

At about midnight, Mr. M drove his Corvette off the road in a rural area where it came to rest in a field. A nearby farmer heard the commotion and called police. When police arrived, Mr M was covered in blood and being attended by medics. He was combative and refused medical attn. At the suppression hearing, the arresting officer testified that he urged Mr M to go with the medics, and if he had not, he would require him to do so.  The deputy attempted to convince the court that he was concerned that the driver may have a head injury.

 However, implicit in this action is that the police want the medics to take the driver to the hospital to get a blood draw. They have referred to this as a police hold for which there is no legal support in Oregon law. He was taken to a local hospital in Linn Co. where hospital staff drew blood and police learned that Mr M was a .21% BAC (blood alcohol content).
                At the suppression hearing, Mr M’s attorney, Gig Wyatt,  elicited favorable testimony from the arresting officer on cross examination, then  argued that the police lacked probable cause to have him taken to the hospital, a type of “constructive custody.” The court agreed, granting a motion to suppress evidence. When such a motion is granted, the evidence is suppressed from that point forward in time. Thus, the court ruled that no evidence after the initial police contact could be used by the state. Mr M is a truck driver with no criminal record. Victory for the defendant.

About Gig Wyatt

Mr. Wyatt has been a criminal defense lawyer since 1985 and has tried literally hundreds of jury trials. His practice focuses upon criminal defense and he specializes in DUII defense.  He is a graduate of Willamette University Law School and is a partner in the law firm of Harris, Wyatt and Amala LLC.

Gig Wyatt
Attorney at Law
Harris, Wyatt, and Amala
5778 Commercial St SE
Salem Or 97306
503-378-7844


Information about the " Actual Cases" is provided here only for educational purposes related to real life situations in DUI defense. This information should not be interpreted as having the same results for your case, legal advice, nor substituted for the specific legal advice of an experienced attorney.

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Friday, January 18, 2013

Oregon Statute Rules for DUII

There are two Oregon rules shown below, one is a new ruling from 2012:
1) New ruling 2012
Proof of Treatment Completion Required for Reinstatement of DUII Suspension

DMV proposes to amend OAR 735-070-0085 to specify the criteria for a waiver of proof of DUII treatment completion and the basis for DMV’s finding of just cause.  The rule is being amended further to specify what constitutes proof of completion of a DUII treatment program.

full text:
 http://www.oregon.gov/ODOT/CS/RULES/docs/20120801/735-070-0085finaltext.pdf 
___________________________
An ignition interlock device or breath alcohol ignition interlock device (IID and BAIID) is a mechanism, like a breathalyzer, installed on a motor vehicle's dashboard. Before the vehicle's motor can be started, the driver first must exhale into the device; if the resultant breath-alcohol concentration analyzed result is greater than the programmed blood alcohol concentration, the device prevents the engine from being started.
At random times after the engine has been started, the IID will require another breath sample. The purpose of this is to someone other than the driver from providing a breath sample. If the breath sample isn't provided, or the sample exceeds the ignition interlock's preset blood alcohol level, the device will log the event, warn the driver and then start up an alarm (e.g., lights flashing, horn honking) until the ignition is turned off, or a clean breath sample has been provided. A common misconception is that interlock devices will simply turn off the engine if alcohol is detected; this would, however, create an unsafe driving situation and expose interlock manufacturers to considerable liability. (reference from Wikipedia under Creative Commons attribution license :http://en.wikipedia.org/wiki/Ignition_interlock_device )

From State of Oregon web site:
2) IID Requirement
  • Anyone entering into a DUII Diversion Agreement with the court is required to install and maintain an IID. The IID is a condition of the Diversion Agreement and required for the time specified by the court. 
  • Anyone convicted of DUII in Oregon is required to install and maintain an IID. The requirement starts at the end of the DUII suspension caused by the conviction and continues for one or two years. 
  • Anyone convicted and revoked for DUII or other applicable traffic crimes that involved a conviction for DUII is required to install and maintain an IID. The requirement starts at the end of the longest revocation and continues for five years. 
  • Anyone granted a hardship permit during a DUII suspension or during a time specified by the court as a condition of a Diversion Agreement is required to install and maintain an IID.
If you do not install an IID when required due to a DUII conviction or remove the device at anytime during the requirement, DMV will suspend your driving privilege. If the device is required as a condition of a DUII Diversion Agreement (AND YOU DRIVE WITHOUT AN IID), the court may terminate the agreement and convict you of DUII.
  Fees and Costs 
You are responsible for paying all costs related to the ignition interlock device, including the installation, lease, monthly monitoring and removal of the device. 


Gig Wyatt, Attorney at Law
Harris, Wyatt & Amala, LLC
5778 Commercial St SE
Salem, OR 97306
Phone: (503) 378-7744
Fax:        (503) 378-1013

Truth at Trial = Not Guilty


A one day jury trial in Polk County resulted in a Not Guilty verdict in a .11% DUII case.  The police received information that the defendant had been involved in a verbal altercation at a house, and that he drove away while intoxicated.  

Officers responded to the defendant’s house approximately 10 minutes after the original call, where the defendant admitted drinking 8 beers throughout the day.  His performance on field sobriety tests was poor, and the defendant expressly denied drinking alcohol since he had been home.  A breath test at 12:30 am resulted in a .11% BAC. 

On the surface, the case looked like an easy conviction for the prosecution.   At trial, the witness who called the police admitted that she just “assumed” that the defendant was intoxicated, and had no evidence to support her claim.  Mr. Snow artfully managed the defendant’s testimony, where he testified that he consumed a substantial quantity of hard liquor during the 5 minutes prior to police arriving. 

Since he wasn’t truthful with the officers the night of arrest, witness credibility was critical.  Mr. Snow convinced the jury that the defendant was truthful at trial, and that he consumed the liquor in the short amount of time prior to the police arriving.  The use of an excellent expert witness helped explain the BAC of .11%, and Mr. Snow’s closing argument was skillful and compelling.  After two hours of deliberation, the jury returned a verdict of Not Guilty. 

Randall W. Snow
(pictured above right)
As an associate at Harris, Wyatt & Amala, LLC, attorney Randall Snow concentrates his practice in the areas of criminal defense, driving under the influence of intoxicants (DUII), personal injury, driver license suspension, expungement, and traffic violations.

NOTICE: The purpose of this blog is to provide basic and general information about Criminal Defense laws in Oregon. This publication should not be interpreted as legal advice, nor substituted for the specific legal advice of an experienced attorney.