Small Town News

Right decision has a downside

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Besides creating fewer hours for tow. services around town, Linn County Circuit Judge John McCormick's recent reversal of a Sweet Home decision that upheld an impound is a blow in favor of the U.S. Constitution, specifically the Fourth Amendment, which protects against unreasonable search and seizure.

The decision in favor of the Constitution and previous Ninth Circuit Court rulings also comes with a downside: Habitual traffic offenders driving around with impunity.

Prior to May, Sweet Home police, like others around the state, impounded vehicles operated by suspected uninsured drivers, suspended drivers, unlicensed drivers and drunken drivers. The impound policy was applied to nearly every driver charged with these offenses. The cops followed this policy this under an Oregon law passed in the late 1990s.

Along came Wayne Hadland, whose vehicle was driven by his daughter's boyfriend. The boyfriend parked the vehicle in Hadland's daughter's driveway before police arrested him on suspicion of driving under the influence.

Hadland, a retired attorney, pointed out an Oregon case, Miranda, v. City of Cornelius, in which the U.S. Ninth Circuit Court of Appeals held that such impounds were unconstitutional.

The Ninth Circuit ruled in that case that vehicles could be impounded only as part of a criminal investigation or under a community caretaking function. The community caretaking function means police can impound a car that is in a hazardous location - which a driveway is not.

Hadland theorized that Sweet Home's impound policy was designed to run poor folks out of town. That may be a little more conspiratorial than true, but our justice system does have problems and can be tough to escape for someone who truly wants to turn over a new leaf of responsibility.

In reality, depending on exactly whom you ask, the real reason for impounding these vehicles is to help keep arguably dangerous and threatening drivers off of the road, especially immediately following a citation for one of the towable violations.

Oregon tried to do something to solve the problem of dangerous drivers, but it botched the job. The state has had a law deemed unconstitutional on its books for four years, and departments are still using it. Sweet Home will not any more, but it did for four years after the Ninth Circuit decision handed down its decision.

Our hat's off to Hadland for bringing this decision home to our town.

No longer will folks who forgot to renew their license or who let an insurance payment slip by have to fear an impound. They'll still be fined when they're cited for their oversight, but their cars won't be seized. This scenario didn't happen too frequently, but once is too much.

Unfortunately, this also applies to the "regulars" who show up frequently in our Public Safety Log, people who arguably are a danger to others on the roadways. Their ability to continue offending, potentially within minutes of a citation, has just been enhanced. When an offender uses a tool to commit an offense, taking his tool is a reasonable solution.

Our legislators need to put their highly paid lawyers to work and fix this law - and do it right.

The Legislature should enact a law allowing judges, as part of sentencing, to place traffic offenders on a sort of traffic probation at the violation level, if possible. After a certain number of convictions on towable offenses, over a specific period, the probation could be imposed.

Under the probation, if a habitual offender is cited for one of those offenses, his or her vehicle could be impounded, limiting his or her ability to reoffend.

Some might argue this wouldn't be fair if the vehicle is borrowed. We suggest it's always a good idea to know who your friends are and make wise choices when lending a car to another person.

It may be tricky to impose anything other than a fine in sentencing a traffic offense. If necessary, a new law could create a new charge as a misdemeanor for habitual traffic offenses, opening the way for an actual probation sentence directly tied to driving and an avenue for impounding these same vehicles.

Some will say that even this violates the Fourth Amendment. That's not for us to decide.

Perhaps the smart lawyers Oregon employs can be creative enough to address the issue without running afoul of the Constitution this time.



Copyright 2009 The New Era, Sweet Home, Oregon. All Rights Reserved. This content, including derivations, may not be stored or distributed in any manner, disseminated, published, broadcast, rewritten or reproduced without express, written consent from SmallTownPapers, Inc.

© 2009 The New Era Sweet Home, Oregon. All Rights Reserved. This content, including derivations, may not be stored or distributed in any manner, disseminated, published, broadcast, rewritten or reproduced without express, written consent from DAS.

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