Mark C. Cogan Law Offices

Some people feel it is unnecessary to hire a criminal defense attorney because they believe they are innocent and procuring legal representation is not needed.  The fallacy with this way of thinking is that, in our adversarial legal system, the only way that people can be assured of having their rights protected is when they have capable legal representation. 

When a person is accused of a crime, he will find himself up against the police, the prosecutor, and the judge, all of whom are savvy in the ways of the law.  None of these professionals can be depended upon to safeguard the rights of the accused.  Only a defendant who has a capable and experienced defense attorney at his side can be assured of having a “level playing field” and being given a fair chance at being exonerated. 

I have seen cases in which a capable and experienced defense attorney made the difference between success or failure.  Considering the long-term consequences that a criminal accusation can have, any person who is accused of a crime should make sure that he has representation by a skilled attorney who has a proven record of success. 

If you or a loved one is facing criminal charges, be sure to get the best attorney you can find, before it is too late.

We are often asked this question by prospective clients.  The answer is: a capable and experienced defense attorney can go a great deal even for someone who is totally guilty. 

For one thing, three are many cases where the defendant is guilty of committing a criminal offense, but mitigating circumstances may exist that can lead to less severe consequences.  When a defendant pleads guilty and places his fate at the mercy of the court, his fate is often far worse than it would be if he had legal representation by an experienced defense attorney. 

We also see cases in which the accused may be guilty but a savvy attorney can demonstrate certain legal flaws with the preparation or investigation of the case such that the court might be persuaded to dismiss the matter entirely.  We have had clients who were factually guilty, but could not be proven guilty by legally competent and admissible evidence.  If those clients lacked capable legal representation, they would have been punished unnecessarily. 

We frequently receive calls from persons who came to regret their failure to retain qualified legal counsel.  These callers thought they could save some money by not retaining counsel to provide them with legal representation.  Events proved that they should have gotten an experienced and capable attorney on board.  

If you or a loved one is facing criminal charges, be sure to get the best attorney you can find, before it is too late.

Prosecuting attorneys throughout the State of Oregon have become more aggressive in opposing DUII Defendants being allowed to enter the Diversion Program.

We have seen cases in which prosecutors have opposed a Defendant’s application to enter Diversion for varying reasons.  In some cases, a prosecutor will oppose a Defendant being allowed to enter Diversion because the underlying case involved an accident where an injury is alleged to have occurred.  In other cases, a prosecutor will oppose a Defendant’s application to enter Diversion because a child was in the Defendant’s vehicle at the time of the underlying offense.  Other situations in which prosecutors sometimes oppose a Defendant entering Diversion include situations where the Defendant has had a prior DUII, where the Defendant has been in alcohol or substance abuse treatment in the past, or where the Defendant registered a high reading on a breath or blood test.

In all the above situations, we have had success in enabling clients to enter the DUII Diversion Program despite opposition on the part of the prosecuting attorney.   There is no need to expect the worst just because the prosecutor opposes the Defendant’s application to enter Diversion.  We have had success in persuading judges to allow clients to enter Diversion even where circumstances appear somewhat daunting.  Any person facing a DUII charge should put his or her case in the hands of a capable and experienced attorney who can do the utmost to advance the client’s interests, no matter what the situation.

Please contact our office if you are facing a charge of DUII.  We have accomplished remarkable success on behalf of clients we have been privileged to serve.

Oregon law offers a framework for a resourceful defense attorney and a pragmatic client to accomplish dismissal of a criminal charge, even where the prosecuting attorney objects to the case being dismissed.

In a situation where the criminal charge encompasses alleged harm to another individual or business entity, the defense attorney has the opportunity to negotiate a settlement with the alleged victim, and follow up with a motion to dismiss the case as a Civil Compromise pursuant to ORS 135.703 to 135.709.  When insurance coverage is available, typically in an automobile accident scenario, it is best to coordinate negotiations with the defendant’s insurance company.  The client should be aware that the insurance company’s framework is limited to the negotiation of a civil settlement.  The focus of the criminal defense attorney is on avoiding criminal consequences to the client.  In many situations, the criminal defense attorney will collaborate with the insurance company for the benefit of the client.

The question often arises as to what the appropriate amount should be for a Civil Compromise.  The simple answer is that whatever is acceptable to the criminally accused and the alleged victim is the appropriate amount.  Savvy defense attorneys work hard to advance the client’s interests, and nail down a Civil Compromise agreement at minimal expense to the client.  Of course, from time to time we encounter alleged victims who are excessively greedy and who attempt to use the Civil Compromise as a way to unjustly enrich themselves at the client’s expense.  Nevertheless, an experienced and capable defense attorney is often able to work out a win-win situation that advances the legitimate interests of all concerned.

The role of the defense attorney in the negotiation of a Civil Compromise is vitally important.  In the first instance, it is up to the defense attorney to recognize situations where a Civil Compromise is even possible.  The defense attorney (or the defense attorney’s investigator) will establish contact with the alleged victim or the alleged victim’s attorney.  While the criminal defendant is typically prohibited from having direct or indirect contact with the alleged victim, there is no such restraint on the defense attorney.  In order for the criminal matter to be dismissed, the defense attorney will need to prepare the appropriate documentation and appear on the client’s behalf at a hearing in court.  Advocacy on behalf of the client, in open court, can seal the deal and accomplish dismissal of the client’s criminal charge.  The final step will be to file a motion to set aside records associated with the arrest and prosecution, pursuant to ORS 137.225 (commonly referred to as “expungement”).

The prosecuting attorney plays a very different role in a Civil Compromise situation.  The prosecuting attorney is not the personal attorney for the alleged victim, and ethical standards prohibit the prosecutor from recommending that the alleged victim abstain from participating in settlement negotiations.  Moreover, once there is a settlement in place between the defendant and the alleged victim, the prosecutor cannot prevent the matter being dismissed as a Civil Compromise.  The ultimate decision as to whether to grant a dismissal of the charges rests with the judge.  The prosecuting attorney can object to the matter being dismissed, but frequently the prosecutor’s wishes are disregarded by the court.

We have assisted many clients with accomplishing dismissal of their criminal charges in accordance with Oregon’s Civil Compromise Law.  Please contact us directly for further information.

OREGON IS A VAST AND BEAUTIFUL STATE

ATTORNEY MARK C. COGAN GOES THE EXTRA MILE FOR HIS CLIENTS

HERE'S THE PROOF!

FOLLOWING ARE THE VENUES IN WHICH MARK C. COGAN HAS REPRESENTED CLIENTS IN CRIMINAL MATTERS

Since 9-11, employers nationwide have made widespread use of background checks as a employment screening tool.  Landlords conduct background checks to screen potential renters.  Anyone who has a criminal record faces an additional obstacle to personal advancement. 

We are frequently contacted by persons who are interested in clearing up their record of a past arrest or conviction.  Fortunately, Oregon law permits expungement of arrest or conviction records in many cases, thus opening new opportunities for many.  Not everyone who contacts us is eligible for expungement, but we are pleased that we are able to help roughly 50% of those who seek our assistance.

For many years, Oregon law did not allow expungement of any traffic matter.  We are pleased that the most recent session of the Oregon Legislature passed an amendment to Oregon’s Expungement Law which allows, starting on January 1, 2010, the expungement of many traffic matters which did not result in a conviction.

During the past 12 months, we have enabled our clients to set aside dozens of criminal convictions.  It is always a pleasure to provide this service to our clients.  We know that expungement offers a path to increased opportunities for our clients, and therefore we strive to provide the most efficient and expeditious service in this important area of our practice.

We represent many clients who are facing a first-time DUII charge and are seeking advice on whether they should take their case to trial or enter the DUII Diversion Program.

Sometimes it is difficult to decide whether to enter Diversion or to take one’s case to trial.On the one hand, the client may feel that the police were not justified to take the action they did in the first instance.  There may be frustration that signs of intoxication were exaggerated and signs of sobriety were ignored.  The client might feel that the police are only looking to pad their stats, and produce revenue through the court system. 

On the other hand, the client may be looking for an expedient way to resolve his or her case, and may be seeking the path of least resistance to getting a matter resolved.  Some clients do not fully consider the option of taking their case to trial.  We have been contacted by clients who expressed regret that, on a previous DUII charge, they did not give sufficient consideration to fighting their case.

It is the responsibility of the defense attorney to present the options to the client in the most objective and realistic manner possible.  When the client enters the DUII Diversion Program, there is one important benefit that comes the client’s way.  A client who enters the DUII Diversion Program can be assured that, if the client completes all requirements of Diversion, and does not get another DUII for the next 12 months, the DUII charge will be dismissed.  Thus, entering the DUII Diversion Program puts much control into the client’s hands as far as the future course of his case is concerned.  On the other hand, when a client enters the DUII Diversion Program, the client gives up his opportunity to take his case to trial, and will be disqualified from entering Diversion again for a very long time (the “look back” period is being increased from 10 to 15 years as of January 1, 2010) in the event that the client gets a subsequent DUII charge.

The stakes of a DUII charge can be very severe.  Based on false assertions by the news media and elected officials, the public tends to think that the consequences of a DUII charge are not serious.  If you or someone you care about is facing a charge of DUII, make sure you put the case in the hands of an attorney who is experienced and successful in handling this type of criminal matter.

IMPORTANT NEW DECISION ISSUED BY THE COURT OF APPEALS SUPPORTS THE RIGHT OF THE DUII SUSPECT NOT TO BE COERCED INTO GIVING INCRIMINATING EVIDENCE TO THE POLICE

On September 30, 2009, the Oregon Court of Appeals handed down an important decision in the case of State vs. Thomas Gregory Machuca, which supports the right of the DUII suspect not to be coerced into furnishing incriminating evidence to the police.

Under Oregon’s Implied Consent Law, police officers routinely procure breath, blood and urine samples from DUII suspects under threats that, if such evidence is withheld, the suspect’s license will be suspended and financial penalties will be imposed.

Defense attorneys have long opposed such punitive actions on the part of the government, maintaining that penalizing the suspect for refusing to provide incriminating evidence negates the right of the motorist to be free from unreasonable searches and seizures, as guaranteed by Article I, Section 9, of the Oregon Constitution, as well as the Fourth Amendment to the United States Constitution.

Courts have routinely rejected the arguments made by DUII defendants, and have allowed breath, blood and urine evidence to be introduced by the government, even where such evidence was obtained under threats of punitive sanctions.  The courts have routinely accepted the assertion by the government that such evidence is not obtained under coercive circumstances.

In the case of State vs. Thomas Gregory Machuca, however, the Court of Appeals declared that the practice of obtaining incriminating evidence from DUII suspects as a results of threats of punitive sanctions may no longer be allowed in the State of Oregon. 

Mr. Machuca had been taken to a hospital emergency room, where he was being treated following a motor vehicle accident.  The police responded, and were seeking to obtain incriminating evidence.  Specifically, the police sought to obtain a sample of Mr. Machuca’s blood.  The police officer read to Mr. Machuca the “implied consent rights and consequences” warnings which are customarily read to DUII suspects in the State of Oregon.  Among other things, the warnings include the statement that, if the suspect refuses to give a sample of his breath, blood or urine, the suspect will face suspension of his driving privileges of one year or more, as well as a financial penalty.  Having been read the “implied consent rights and consequences”, Mr. Machuca allowed the police to obtain a sample of his blood.  Once the case got into court, defense counsel maintained that Mr. Machuca’s consent to the police obtaining Mr. Machuca’s blood was invalid.

On appeal, the Court of Appeals ruled that, when the government obtains evidence under threats of adverse consequences, as is the usual practice in a DUII investigation, the suspect’s “consent” to the gathering of such evidence is not voluntary.  Henceforth, the Machuca decision will be relied upon by other persons to support their claim that the police have violated their rights to be free from unreasonable searches and seizures.

The entire decision of the Court of Appeals in the Machuca case can be found by clicking the following link: www.publications.ojd.state.or.us/A133362.htm

The 2009 session of the Oregon Legislature enacted more than 125 bills that have an impact on Criminal law and procedure.  Some of these new laws impact our clients in a major way.  The most important new laws are summarized in this article. 

EXPUNGEMENT

In an important change, HB 2318 now allows us to expunge certain traffic matters.  Previously, ORS 137.225 disallowed expungement of a traffic matter, even where the charge was dismissed or the accused was found Not Guilty.  Pursuant to HB 2318, which takes effect on January 1, 2010, we can set aside arrest and court records for clients who were found Not Guilty of such traffic offenses as Driving Under the Influence, Driving While Suspended, Attempt to Elude, and Hit & Run.  Clients whose cases resulted in a Non Complaint or Dismissal can also get their records set aside.  The only exception to this is that DUII charges which were dismissed as a result of the completion of Diversion will still not be eligible for expungement.  HB 2796 disallows a person convicted of Criminally Negligent Homicide from seeking expungement, even where the person was convicted of that crime when it was a class “C” felony.  HB 2287 adds a $250 filing fee for all expungement motions, and took effect as of October 1, 2009.  We urge any person who qualifies for expungement to file their motion to set aside at the earliest possible opportunity.  We are always glad to assist eligible clients in cleaning up their record.  For further information, see the EXPUNGEMENT page.

DRIVING UNDER THE INFLUENCE

In a continuation of the trends of recent years, the Oregon Legislature has made it yet more difficult for persons facing charges of DUII.  Previously, a client could enter the DUII Diversion Program where the client had a previous Diversion, as long as the previous Diversion was completed more than 10 years prior to the current offense.  Under HB 2331, this “look back” period is extended to 15 years.  HB 2331 adds other prerequisites to entering the DUII Diversion Program as well.  HB 2426 doubles the minimum financial penalty for a first time DUII conviction where the motorist registers 0.15% or more on a breath or blood test.  HB 2331 and HB 2426 take effect as of January 1, 2010.  Other laws have also been placed on the books that increase the harsh punishment of persons facing DUII and related charges.  We defend clients facing DUII charges all the time and seek to minimize debilitating penalties where possible.  For further information, please see the DUII page.

MISCELLANEOUS CRIMINAL LAW CHANGES

• SB 728 requires the State Board of Pharmacy to reclassify marijuana and methamphetamine
• HB 2323 increases the minimum value required for certain property crimes
• HB 2874 and SB 233 expand the scope of “victim’s rights” laws
• HB 3508 increases the “good time” credit from 20% to 30% for certain prisoners
• SB 309 requires law enforcement agencies to record certain interrogations
• HB 2173 and 2972 make it more difficult for persons to seek relief from sex offender reporting laws
• HB 3263 eliminates the statute of limitations for certain sex crimes, where the defendant is identified based on DNA evidence

Considering the harsh consequences of a criminal prosecution, any person facing criminal charges should be sure to arrange for legal representation by an attorney who has the skill, qualifications and experience to handle challenging matters such as this.  We urge any person facing criminal prosecution to contact our office at the earliest possible opportunity.  We have seen many situations where an experienced and capable criminal defense attorney can substantially reduce or even eliminate the consequences of a criminal accusation.  Unfortunately, the converse is also true.  We have seen many cases in which the failure to obtain qualified legal counsel can cause irreparable damage.