OREGON DRUG ATTORNEY, PORTLAND
Mr. O'Rourke is an experienced drug charge criminal defense lawyer and attorney in Portland, Gresham, Beaverton, Hillsboro, Oregon City and Saint Helens Courts and Courts throughout the State of Oregon. Mr. O'Rourke began as a Portland Criminal Lawyer in 1978.
Criminal defense attorney O'Rourke will defend you against criminal prosecution for drug crime charges in the Portland metroplex area. In Multnomah County, felony and misdemeanor drug crime charges are prosecuted in Portland and misdemeanor drug crimes are prosecuted in Gresham and Portland. In Washington County, Oregon, felony and misdemeanor drug charges are heard in Hillsboro, Oregon In Clackamas County, felony and misdemeanor drug charge prosecutions are heard in Oregon City. In Columbia County felony and misdemeanor drug crime charges are prosecuted in St. Helens, Oregon.
Mr. O'Rourke defends persons charged with Federal Criminal Drug Charges in the United States District Court for Oregon in Portland, Oregon.
Mr. O'Rourke and his staff work as a team for you
We use the same three methods to fight the prosecution and win in drug charge cases that we use in other criminal cases: Attack including investigation, legal motions and trial, Negotiation before and after drug charges are filed and Mitigation-Sentencing plans to achieve results which work for our clients.
We evaluate each case for its own defense potential. We set realistic goals with our clients and make trial, negotiation and mitigation - sentencing plans to achieve those goals.
First we evaluate the case for trial. We consider defenses and whether we can exclude crucial evidence from the prosecution's case through motions to suppress and other methods.
We determine the client's sentencing exposure under the Oregon Felony Sentencing Guidelines and Measure 57 and make sentencing and mitigation plans to reduce the consequences of a conviction.
We concentrate our efforts in the areas which will be most effective in achieving the goals we set with our clients. We practice Smart Defense which is focusing our efforts on using what works.
In drug cases, the primary ATTACK is aimed at keeping the drug evidence out of court. Without the drug evidence the State can not prove its case. We use Motions to Suppress and evidentiary objections to exclude evidence of drug crimes from the trial. We investigate the government's sources of information, including informants and develop evidence not contained in the police reports to undermine the government's case. We use the best trial lawyer for each particular case.
The object of a drug prosecution is to link you to drugs and evidence of drug manufacturing or distribution including money and weapons.
We use Motions to Suppress and Motions to Controvert to exclude from trial evidence which the prosecution needs to prove a link between you and the contraband. Most motions attack the legality of statements, confessions and searches with and without a search warrant. We also use evidentiary motions and objections to exclude connecting evidence which the prosecution intends to use in its effort to connect you to criminal activity or which can be used to increase the potential sentence.
Most cases are decided based upon whether or not the prosecution can prove the link between the defendant and the contraband. There are cases where there is a link but it is not enough to support a conviction. For example in State v. Embry, (I think) presence and knowledge cases
Each drug charge case has to be evaluated based upon its own particular facts. Each case has its own particular defense potential.
We NEGOTIATE with the prosecution before and after drug charges are filed. There are a number of factors and possibilities to be considered in resolving a drug case. We know what to seek through negotiation to obtain results which work for our clients.
The vast majority of criminal drug charge prosecutions are resolved by negotiations. "Plea deals" cover a wide range of subjects. First, to what charge will the defendant plead? What other state or federal drug or related charges will be dismissed or will or will not be brought? Can we agree to a diversion type resolution? What assets will be forfeited or not? Next, can we agree to a sentence? Sentencing issues include whether or not and how much jail, prison and/or fines, and where and how jail or prison sentences will be served. There are ways of serving jail sentences without going to jail. We negotiate for rehabilitative - diversion type sentences rather than punitive - incarceration sentences.
We develop negotiation and mitigation-sentencing hearing strategies for each client. We achieve excellent results for our clients through negotiation.
MITIGATION - SENTENCING
Our MITIGATION - SENTENCING plans are very successful in drug cases. No one can change the facts which led to the criminal charges. We can create new facts and evidence during the pendency of the case for the Court to consider at sentencing.
We use a technique we call Turning Negatives Into Positives to obtain rehabilitative rather than punitive sentences for many of our clients. This technique works well within the framework of the Felony Sentencing Guidelines and in many cases which are covered by Measure 57.
Turning Negatives Into Positives
Most persons charged with drug crimes are addicted, dependent upon or abusing drugs. They would not commit crimes it they were not using drugs. We use our clients' successful drug treatment efforts to get excellent results in Court, which is the essence of Turning Negatives Into Positives approach.
Most of our drug abuse/dependence/addiction recovery clients who carefully follow our instructions, receive extremely fair and lenient sentences from the Courts. Click here for more information about Turning Negatives Into Positives.
We Let Our Results Speak For Us
Among the services we provide retained clients related to drug crime investigations, charges and convictions are the following:
We represent persons charged with drug crimes in State and Federal Court including:
STATE OF OREGON DRUG CHARGES
The most frequently charged drug crimes in Multnomah, Washington and Clackamas Counties are Unlawful Manufacture, Delivery and Possession Of A Controlled Substance including Marijuana, Cocaine, Methamphetamine, Heroin and Ecstasy. These drug charges actually include conduct that many people would not think of as a part of the definition of these legal terms.
MANUFACTURING A CONTROLLED SUBSTANCE, MCS includes not only the cultivation of a plant or the creation of a drug from precursor substances, it also includes "cutting," and "breaking down" and "repackaging" drugs.
In order to convict you of the crime of Manufacturing a Controlled Substance, the State must prove that (1) on or about a certain date (2) in a certain county in Oregon (3) you (4) unlawfully (5) intentionally or knowingly (?) (6) manufactured a specified controlled substance (7) listed in Schedules I,II,III and IV of the Federal Drug Schedules.
Manufacture of a controlled substance is a Class A Felony if it involves a Schedule I drug like Marijuana, Methamphetamine, Heroin and Ecstasy and a Class B Felony if it involves Cocaine. If the manufacturing occurs within 1,000 feet of a school the degree of the crime is a Class A Felony.
Manufacture Of A Controlled Substance Convictions cannot be Expunged.
ORS 807.250 (2) Requires the court to suspend the drivers license of a person convicted of manufacturing a controlled substance for 180 days unless the court is persuaded that the suspension would create an undue hardship for the defendant. In almost all cases we are able to avoid suspension of our client's drivers license.
DELIVERY OF A CONTROLLED SUBSTANCE, DCS includes not only the actual transfer of a controlled substance from one person to another but also any attempt to transfer a drug from one person to another. Possession of an amount of a drug which is found to be greater than the amount a person would possess for personal consumption is such an attempt and is punishable as an actual, completed delivery. This type of "constructive delivery" was recognized in State v. Boyd, 92 Or App 51, 756 P2d 1276, rev den 307 Or 77 (1988) and has since been called a "Boyd delivery."
The police executed a search warrant at Ms. Boyd's home and found 23 bindles of heroin on the premises. Ms. Boyd admitted that she had purchased 13 of the bindles earlier in the day and that she had intended to sell the heroin. The Court of Appeals held that the large quantity of individually packaged drugs, along with her admission of her intent to sell the heroin, was sufficient to establish that she had taken a "substantial step" toward a completed delivery and thus she had attempted to deliver heroin. Under Oregon law, an attempt to deliver is punished the same as a completed delivery.
In State v. Fulmer, 105 Or App 334, 804 P2d 515 (1991). A Defendant was walking down the street and, as he was passed by a patrol car, he was seen throwing a plastic bag from his coat pocket. The police seized the bag and found six bindles of crack cocaine, $308 in cash and a razor blade. The Defendant couldn't identify the source of the money and denied using cocaine. The six individual packets of cocaine and the money were found to be sufficient proof of an attempt to deliver crack cocaine.
Thus, a person who possesses a substantial quantity of a drug can be convicted of delivery even if there is no proof of an actual transfer.
Boyd delivery cases can be tried on the issue of whether or not the defendant intended to use the drugs himself. With Measure 57 mandatory sentences in effect for crimes committed after January 1, 2009, it is cost effective to take these types of cases to trial.
In order to convict you of the crime of Delivery Of A Controlled Substance, the State must prove that (1) on or about a certain date (2) in a certain county in Oregon (3) you (4) unlawfully (5) intentionally or knowingly (?) (6) delivered (7) a specified controlled substance (8) listed in Schedules I, II, III or IV of the Federal Drug Schedules.
The level of the delivery charge is determined by the nature of the drug and in what level it is placed in the federal drug schedules.
Delivery of the most popular "street drugs."
Delivery of the Schedule I Controlled Substances Heroin, Methamphetamine, and Ecstasy are Class A Felonies. Delivery of Cocaine, a Schedule II Controlled Substance, is a Class B Felony.
Delivery Of One Ounce Or More Of Marijuana is a Class A Felony. Even though Marijuana is a Schedule I Controlled Substance, not all Marijuana Deliveries are Class A Felonies. See the list of delivery offenses.
Some of the most popular Prescription Drugs include hydrocodone, vicodin, percocet, oxycontin, dilaudid (hydromorphone), Fentanyl, morphine, methadone, percodan, and oxycodone.
Delivery of a Controlled substance within 1,000 feet of a school is a Class A Felony. Delivery of a controlled substance to a minor is a Class A Felony unless the person making the delivery is less than 3 years older than the person to whom the delivery is made. In that case, the classification is the level associated with the placement of the drug in the Federal Drug Schedule.
ORS 807.250 (2) Requires the court to suspend a the drivers license of a person convicted for delivery of a controlled substance for 180 days unless the court is persuaded that the suspension would create an undue hardship for the defendant. In almost all cases we are able to avoid suspension of our client's drivers license. (May want to put this under the sentencing part to avoid repetition and for economy of space)
Delivery convictions are cannot be expunged, except for delivery of Marijuana (in some cases).
POSSESSION OF A CONTROLLED SUBSTANCE, PCS includes not only the physical possession of a substance upon one's person, it also includes "constructive possession" which is the possession of a substance by having it in an area under your immediate control, most often your home or your vehicle. More than one person can possess the same controlled substance. So, two people residing in the same household can both be charged with possession of the same drug as long as they were aware of the presence of the drug and had control over the area in the home where the drug was found.
For example, in State v. Sosa-Vasquez, 158 Or App 445, 974 P2d 701 (1999) the Defendant was found in a garage with four other people standing next to a table upon which there was a quantity of packaged cocaine. He was arrested for Unlawful Possession Of Cocaine. The State argued that Defendant's presence in the company of others standing next to cocaine packaged for individual sale was sufficient to convict him of possession of the cocaine. The Defense argued that there was no evidence that Defendant owned or controlled the premises and that his presence alone was not enough to prove constructive possession of the drugs. The Court of Appeals held that mere proximity to the drugs was not enough to prove constructive possession, where there was no evidence that the Defendant exercised control over the area where the drugs were found.
Of course, persons can lawfully possess prescription drugs prescribed to them by a doctor and marijuana under the Oregon Medical Marijuana Act.
In order to convict you of Possession Of A Controlled Substance, the State must prove that (1) on or about a certain date (2) in a certain county in Oregon (3) you (4) unlawfully (5) intentionally and knowingly (?) (6) possessed (7) a specified controlled substance (8) listed in Schedules I, II, III or IV of the Federal Drug Schedules.
The level of the possession charge is determined by the nature of the drug and in what level it is placed in the Federal Drug Schedules.
Possession of the most popular "street drugs"
Possession of the Schedule I Controlled Substances Heroin, Methamphetamine, and Ecstasy are Class B Felonies. Possession of Cocaine, a Schedule II Controlled Substance, is a Class C Felony.
Possession Of One Ounce Or More Of Marijuana is a Class B Felony. Even though Marijuana is a Schedule I Controlled Substance, not all Marijuana Possessions are Class B Felonies. See the list of possession offenses. For example, Possession Of Less Than One Ounce Of Marijuana is a Violation. Possession of Less Than An Ounce of Marijuana within 1,000 feet of a school is a Class C Misdemeanor.
Possession of some of the most popular Prescription Drugs, hydrocodone, vicodin, percocet, oxycontin, dilaudid (hydromorphone), fentanyl, morphine, methadone, percodan, and oxycodone is a Class C Felony.
ORS 807.250 (2) Requires the court to suspend the drivers license of a person convicted of unlawful possession of a controlled substance for 180 days unless the court is persuaded that the suspension would create an undue hardship for the defendant. In almost all cases we are able to avoid suspension of our client's drivers license.
C Felony and Misdemeanor possession convictions may be expunged in many circumstances.
SENTENCES FOR DRUG CRIME CONVICTIONS:
A person convicted of a Class A misdemeanor drug crime is placed on probation and is subject to a jail sentence of up to one year, a fine of up to $6,250 and suspension of his or her driving privileges for up to 180 days. The conditions of probation are usually the same as those for felony convictions.
A person convicted of a felony drug crime is either sent to prison or placed on probation, which may include a period of county jail time.
PROBATIONARY SENTENCES FOR FELONY DRUG CHARGE CONVICTIONS
Probationary sentences almost always involve Supervised Probation.
The convicted person is ordered to comply with general and/or special conditions of probation. Each county has packages of general and special conditions of probation for persons convicted of drug crimes.
We advise that out clients carefully review all of the general conditions of probation and the package of probation conditions for the county in which they may be convicted of a drug crime so that we may ask the court to delete or change conditions which will cause undue hardship to the client.
All counties in Oregon have packages of general and special conditions of probation for persons convicted of drug crimes.
PRESUMPTIVE AND MANDATORY PRISON SENTENCES FOR FELONY DRUG CRIME CONVICTIONS
Sentences for Felony Drug Convictions are determined by application of the Oregon Felony Sentencing Guidelines and repeat offender laws.
The felony sentencing guidelines determine a presumptive sentence based upon the nature and seriousness of the present crime and the person's criminal record.
In drug cases, the seriousness of the present crime is determined largely by, the nature of the charge, the type and weight or number of doses of the drug, whether or not the crime was "for consideration" (i.e. involved the actual or attempted sale of drugs for money) and whether the crime involved minors or was committed within 1,000 feet of a school. Delivery and Manufacture charges generally receive greater sentences than possession or other drug crime charges.
Other factors which can determine the seriousness of the drug crime are set out in ORS 475.996 including provisions for increases in crime seriousness for cases where the elements of Commercial Drug Offense and/or Substantial Quantity can be proven by the State.
For example, The state can increase the seriousness of a Manufacture or Delivery Of A Controlled Substance charge to the highest level provided for drug offenses, if the prosecution alleges (states in the accusatory instrument - indictment) and proves that three or more of the following commercial drug offense factors were connected with the charged crime:
That you were in possession of (A) $300 cash (B) packaging materials (C) drug records or customer lists (D) stolen property (E) manufacturing paraphernalia (F) 3 grams of heroin, 8 grams of cocaine, methamphetamine or hash, 110 grams of marijuana, 20 units of LSD or 10 grams of psilocybin/psilocin (G)or that you possessed or used or were an ex-con in possession of a weapon (H) modified a structure to facilitate a controlled substance offense (built a grow room) (I) used fortifications or dangerous security with the potential of injuring persons (J) use of public lands for Unlawful Manufacture Of A Controlled Substance. (K) delivery for consideration. ORS 475.996 (1) (b)
The sentence is also enhanced if the drug crime involves a Substantial quantity of certain controlled substances.
In addition, delivery of heroin, cocaine, methamphetamine or MDMA has enhanced consequences if the delivery is for consideration.
The person's criminal record is the other main factor used to determine a presumed sentence. The greater the criminal record the greater the sentence.
Repeat meth offender. ORS 137.721 reduces the trial court's discretion to reduce sentences for some repeat meth offenders and requires 19 month mandatory prison sentences for other repeat meth offenders.
The rules for sentencing drug charge convictions are complex. Each case has its own facts and circumstances and its own defense potential. We determine and in most cases achieve that highest defense potential.
Oregon Penalties for “Super Quantities”
Under ORS 475.925 (Measure 57) there are enhanced penalties for manufacture of delivery of “super quantities” of certain controlled substances. This sentencing law targets heroin, cocaine, methamphetamine and MDMA for enhanced penalties if a person manufactures or delivers “super quantities” of these drugs. Marijuana is excluded from these enhanced penalties. Amounts in excess of 50 or 100 grams of heroin or MDMA draw enhanced penalties. For cocaine and methamphetamine the thresholds are 100 and 500 grams. A person who manufactures or delivers amounts in excess of these thresholds is subject to a prison term that is determined by elevated crime seriousness standards. Also, a Court is not allowed to impose a lesser sentence than is dictated by the sentencing guidelines and cannot impose a sentence of probation.
Enhanced Penalties for Repeat Offenders
Under ORS 475.930 (Measure 57) there are enhanced penalties for persons who have a previous conviction for manufacture or delivery of heroin, MDMA, cocaine, methamphetamine, manufacture or delivery within 1000 feet of a school, delivery of a controlled substance to a minor or possession of methamphetamine precursor substances. Persons with previous convictions of these crimes who are charged with a new manufacture or delivery of these substances are not allowed a probationary sentence and must serve a prison term under the sentencing guidelines.
THE DEPARTMENT OF HUMAN SERVICES, THE JUVENILE COURT AND DRUG CHARGES
Simply having a child under 18 present where any drug crime is being committed constitutes misdemeanor Endangering The Welfare Of A Minor. Allowing a child under 16 to remain on premises, or in a vehicle, where drugs are being manufactured or sold can be charged as felony Child Neglect In The First Degree in Oregon As a result, when a parent is arrested for a felony manufacture or delivery crime, often the parent is also charged with felony child neglect and the children are taken into protective custody.
When the police or the Department of Human Services (DHS) take a child into protective custody they are required to immediately notify the Juvenile Court and a shelter hearing must be scheduled with 24 hours (excluding weekends and holidays). At that hearing, the Juvenile Court determines whether or not "the child's condition or surroundings reasonably appear to be such as to jeopardize the child's welfare."
If the Court determines that the child's welfare is jeopardized, the child is deemed to be "within the jurisdiction" of the Juvenile Court and the Court effectively takes custody of the child. The Juvenile Court then has a variety of options available. The Court first determines whether or not DHS can provide services to the parent that will abate the danger and allow the child to return home. The Juvenile Court will try to return the child to the family home if at all possible. The Court can appoint a guardian for the child and make a placement outside of the family home. Preference is given for placement with relatives. In extreme cases, the Court can take action to terminate a parents rights and have the child permanently placed out of the home and/or adopted over the parent's objection.
DHS is required to provide services to reunite the family if the Court takes jurisdiction over the child. Commonly, DHS will offer drug treatment services and require a parent to submit to U/A's as a condition of returning the child to the family home. Often, parents are subject to supervised visits until they can begin the program required by DHS.
The police will often threaten to bring children into this Juvenile Court process as a means of coercing confessions and/or providing information about other people involved in drug activity.
We at James F. O'Rourke, Jr and Associates are successful at defending person with drug charges and reuniting families, even in cases where there are convictions for drug crimes.
Criminal charges and convictions can affect professional licenses. Drug charges and convictions can lead to the suspension and or revocation of licenses granted by professional boards and the State Of Oregon.
We have extensive experience representing persons licensed to practice law, medicine, dentistry, pharmacy, nursing and other professions. Drug addiction is common in all professions and drug charges are not necessarily the end of a career. None of our professional clients, who have followed our advice, have permanently lost their licenses to practice, law, dentistry, medicine. Pharmacy or nursing. Many have not lost their licenses at all.
We know what the Professional Boards want from the client and how to help the client fulfill those requirements.
The earlier we get involved the more useful we can be in protecting a professional license.
Oregon Medical Marijuana Act
The Oregon Medical Marijuana Act authorizes a person who suffers from a "debilitating condition" to use and possess marijuana if a physician certifies that marijuana will help mitigate the effects of their medical condition.
A person with a physician's certification is approved as a medical marijuana patient, issued a patient identification card and their name is entered in a registry maintained by the Department of Human Services. Access to that registry is strictly regulated. A medical marijuana patient designates a person as their primary caregiver, and that caregiver is allowed to deliver marijuana to the patient lawfully. A primary caregiver may make arrangements with a person authorized to grow marijuana to maintain a supply of marijuana for the caregiver's patients. A grower must follow the rules set out for the Department of Human Services. A grower may be reimbursed for the actual costs associated with the production of the marijuana.
A medical marijuana patient is authorized to possess certain maximum amounts of marijuana and have a certain maximum number of mature marijuana plants. A medical marijuana cardholder and is not authorized to drive while impaired by marijuana or use marijuana in a public place. A primary caregiver may also possess certain amounts of marijuana and mature plants for the benefit of a patient. A person licensed as a grower may possess certain amounts of marijuana and mature plants per patient he or she supplies, up to a maximum of four patients.
Medical marijuana cards, whether for a patient, a caregiver or a grower, are revoked when the cardholder unlawfully grows, delivers or possesses marijuana and is convicted of a crime.
The rules of the medical marijuana program are strictly enforced and caution is advised in following these rules. It is easy to get into trouble. Recently, the Oregon Supreme Court found that a person who merely helped a medical marijuana patient move his plants to a new home was guilty of unlawful possession of marijuana.
We at James F. O'Rourke, Jr. and Associates are familiar the Oregon Medical Marijuana Act and the related rules. We represent Oregon Medical Marijuana cardholders in felony prosecutions.
Depending upon a person's status in the country, convictions for some drug crimes will automatically cause deportation while other drug crime convictions will leave a person in a position where they can request to stay in the United States.
For those who are going to be deported, it is important to reduce the jail or prison sentence as much as possible, because that time will be served prior to deportation.
We work closely with immigration lawyers in all of our drug cases where our clients are not citizens of the United States and wish to stay in this country.
We do everything we can in the defense of the drug crime charges to help our clients with immigration matters.
Community based treatment including drug court programs are a better solution for addicts than prison sentences because community based treatment is more effective than treatment during incarceration in achieving long term sobriety and preventing the defendant from re-offending.
Many counties have drug courts. Others are in the process of developing drug courts.
Each county sets its own criteria for entry into drug court. The rules and procedures vary from county to county.
Generally, the programs involve judicial supervision of treatment. A person is required to participate in a treatment program and is held accountable for attendance and participation in the program and compliance with drug court rules. Success is measured by abstinence documented by clean UA's, progress in life and treatment and remaining crime free. Polygraph examinations may also used to verify success. There are a variety of consequences, including short terms in jail for non compliance with program rules.
The Drug Court Judges we have worked with are truly interested in helping program participants change their lives. They are firm, not to be trifled with, fair and supportive. The representatives of the District Attorneys offices are supportive and firm.
In some counties, the charges are dismissed upon successful completion of Drug Court. In other counties, the person is convicted but there is no further sentence.
If a person fails in drug court, the person is terminated from the program, sentenced, which usually includes jail and then placed on probation and required to successfully complete treatment anyway.
We represent persons throughout the drug court process. All of the persons we have represented through drug court have successfully completed the program.
We have been successful in negotiating resolutions of cases which allow persons a chance at drug court even though their original charges disqualified them from the program.
DRUG CRIMES ARE SERIOUS CRIMINAL OFFENSES WITH SERIOUS POTENTIAL CONSEQUENCES.
Get advice from an experienced lawyer before you make any decisions or say anything to anyone. Do not try to talk your way out of anything. You can only talk your way into trouble. Do not make any deals with the police. Only the District Attorney has the authority to make deals which should be in writing.
While our principle offices are In Portland, Gresham and Oregon City we see clients by appointment in offices in Beaverton, Hillsboro and Lake Oswego. Besides being a Portland criminal lawyer, Mr. O'Rourke frequently practices in Courts throughout the State of Oregon and southwest Washington. He is licensed in Washington and Oregon.
To talk to a Criminal Defense Lawyer, call 503-221-1425. We take emergency calls 24 hours a day.