Continuing along the lines of the last two blogs, as predicted, the driving under the influence procedures (DUI procedures) being implemented by the police are now being challenged in court.  On December 9, 2009, I had the opportunity to litigated this issue based on a suppression motion I filed in Beaverton Court on a DUII case. I filed the motion challenging whether my client gave a valid consent when he took a breath test that resulted in a .11 blood alcohol content.  The motion was based on the constitutional rights in Article 1, section 9 and the new landmark case in Oregon called State v. Machuca.

The court agreed with my analysis and ruled that my client’s consent to take the breath test during DUII processing was not voluntary.  Even though he agreed to take the breath test, the consent was not voluntary because of the way the police processed the case prior to asking to take the breath test.  As a result of the way the police handled the DUI and the ruling by the Beaverton Municipal Trial Court, the prosecution will not be allowed to use the results of the breath test in our upcoming trial. 

I believe this is just the start of what will turn out to be many Oregon DUII cases in which the court will rule that because of police DUII procedures, the results of the intoxilyzer exam will not be allowed as evidence in trial.  I have heard that the state lawyers (prosecutors) are already appealing some of these decisions by the Oregon Trial Courts Judges.  The prosecutors are trying to bring the matter before the Oregon Supreme Court in hopes that Machuca gets overruled or clarified.  It really is just a matter of time before the Oregon Supreme Court will have to rule on this matter.  Until then, the Oregon courts are likely to be flooded with motions from aggressive criminal defense attorneys testing the limits of the Machuca case.