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PORTLAND CRITICAL MASS - PLEASE HELP

the court date for 12 Corvallis Citical Massers charged with Disordely Conduct Violation is this thursday. We need some advice from folks in portland with more experience.
We need some help with what to say on thursday. The $421 fine is unacceptable. Rumor has it Critical Mass has been shown to be a First Ammendment Right. IS THIS TRUE? if so does this mean we are "safe" if we say the right things?

We all plan to plead not guilty and ask for a jury trial.

Any advice is very welcome, we all want to fight this, it is simply harrassment but we cant fight without some education and some solidarity from others.

PLEASE HELP!!

Thank you, Corvallis Critical Mass
any more info? 17.Nov.2004 01:29

just wondering

like an email address, or court location/time?

call BTA maybe or SHIFT 17.Nov.2004 01:55

x

try:
 http://shifttobikes.org/
or
 http://www.bta4bikes.org/

I think they have good contacts with lawyers....

Details 17.Nov.2004 02:48

CCM

Court date is November 18th, 2pm at the Benton County Courthouse, 120 NW 4th Street, Room 213. Support and solidarity is lovingly welcome, but please consider riding your bike to this CM court date.

The charge is a violation of ORS 166.025 Disorderly Conduct

As far as i understand, Disorderly Conduct is a catch-all. It was my understanding that we were charged under the "Impeding the flow of vehicular traffic" component of DC. This may have changed.

Court Solidarity suggestions from Mike-d. 17.Nov.2004 05:05

Mike-d. mikedeepdx@yahoo.com

howdy critical massers, mike-d. here, i am not a attorney but i play one on the radio. multiple options for court solidarity on this direct action protest, but portland usually does not lead the way on this part.

while i don't identify necessarily as a portland critical masser, i still have some ideas. first off, i need more info, but since i don't have it- i will give multiple options. 2nd off, disorderly conduct is a class "b" misdemeanor, while that means upto 6 months jail and a $2000.00 fine or something like that, i'll do the fact checking later when i have more time to research the actual oregon revised statues. so you can read them for yourselfs. it is not likely to get those maximum sentence guidelines in this type of case unless some judge is trying to send a bad message. any time there is a potential for jail time that means you can apply for a "court appointed attorney" (if you can prove that hiring one on your own would not be an option or would be an unreasonable burden or if you are indigent as the court system likes to say, you can request a trial by jury also known as a jury trial, and the burden of proof is "beyond a reasonable doubt" (meaning that a reasonable person could find you guilty). but if you are being charged with a violation the rules change. no court appointed attorney, no jury trial, and the "burden of proof" changes to a "proponderence of the evidence" (meaning more likely than not) very easily to lose, and many judges unfairly seem to rubber stamp this type of case as guilty no matter the circumstances, for surely when it's you vs. the officer(s). so what to say on thursday, i would put it here, but that would give away your strategy. the $421.00 fine is unacceptable also. any of you were arrested on this charge or others related to this direct action protest against the govenment, i have a better plan. rumor has it critical mass has been shown to be a first ammendment right. is this true? some would argue that "free speech" is a constitutional right, while driving under a license (a license turns a right into a privledge, meaning something you can lose) is a privledge, and a little inconvience, annoyance, or alarm to the public, is a very small price for the public to pay for the right to keep "free speech" an option. if so does this mean we are "safe" if we say the right things? yes, potentially.

we all plan to plead not guilty and ask for a jury trial. great, but not an option if it is a violation. remember, no jail time=no court appointed attorney and no jury trial and a lower "burden of proof".

the charge is a violation of ors 166.025 disorderly conduct
this charge goes something like this "a person commits the crime of disorderly conduct if the person causes a public inconvience, annoyance, or alarm, if the person does so with intent to a.)do this b.) do that, c.) block traffic, d.) fail to disperse e.)be part of critical mass f.)drop out of school, o.k. so these aren't the actual a.-g. but i get them for y'all later, i'm over multitasking as it is.
as far as i understand, disorderly conduct is a catch-all. i can be, but that also makes it easy to void it. it was my understanding that we were charged under the "impeding the flow of vehicular traffic" component of dc. that would make sense, but the "intent" could be challenging for the state. this may have changed. no that's probably right.
o.k. so someone call or e-mail me directly and figure out a way to prove your one of the corvallis 12 and i'll send or tell you some solidarity options, i would post it here, but the element of surprise can be a big advantage here. count on them getting word of this newswire post. good luck, call anytime, or e-mail anytime.

(503) - 230 -8360

what was the intent of the ticketed riders? 17.Nov.2004 12:16

pdx biker

Were riders purposely blocking traffic, or was traffic blocked as an inevitable result of there being so many bikers? If you were spreading out across lanes with the intention of blocking traffic, you will likely lose the case. If you were just biking along as a celebration of bicycling, you can argue that "WE'RE NOT BLOCKING TRAFFIC, WE ARE TRAFFIC". Oregon law grants the right of the road to bicyclists, equally with automobiles. There is a good summary of the applicable statutes on the BTA website, www.bta4bikes.org , or you can search through the statutes at  http://landru.leg.state.or.us/ors/ . Most of what you want is in Chapter 814.

A note to people who think that the purpose of CM is to harass motorists or block streets, this was not the intent of the original CM which started it all. You can get a good history of CM reading the book "Critical Mass: Bicycling's Defiant Celebration" edited by Chris Carlsson, or watching the movie by Ted White "We Are Traffic!"

Strategy 17.Nov.2004 14:10

me

Depending on your case, it might be best to request a trial. This is typically the only way to get a fine reduced. I know of one rider last year who got her disorderly ticket reduced after going through a trial. This is an annoying process but can be beneficial depending upon the circumstances of your case. Either way, someone correct me if I'm wrong, but its typically an anathema to be punished for simply exercising a right, so it certainly won't put you in worse position. Either way, you should call the Belmont Law Center in Portland, they handle alot of protest cases.

Good luck and let us all know what goes on.

Disorderly Conduct O.R.S. / and Maximum Sentences 17.Nov.2004 14:44

Mike-d. mikedeepdx@yahoo.com

O.R.S.166.025 Disorderly conduct. (1) A person commits the crime of disorderly conduct if, with intent to cause public inconvenience, annoyance or alarm, or recklessly creating a risk thereof, the person:

(a) Engages in fighting or in violent, tumultuous or threatening behavior;

(b) Makes unreasonable noise;

(c) Disturbs any lawful assembly of persons without lawful authority;

(d) Obstructs vehicular or pedestrian traffic on a public way;

(e) Congregates with other persons in a public place and refuses to comply with a lawful order of the police to disperse;

(f) Initiates or circulates a report, knowing it to be false, concerning an alleged or impending fire, explosion, crime, catastrophe or other emergency; or

(g) Creates a hazardous or physically offensive condition by any act which the person is not licensed or privileged to do.

(2) Disorderly conduct is a Class B misdemeanor. [1971 c.743 220; 1983 c.546 5; 2001 c.104 55]

VIOLATIONS

(Generally)

O.R.S. 153.005 Definitions. As used in this chapter:

(1) "Enforcement officer" means:

(a) A member of the Oregon State Police.

(b) A sheriff or deputy sheriff.

(c) A city marshal or a member of the police of a city, municipal or quasi-municipal corporation.

(d) An investigator of a district attorney's office if the investigator is or has been certified as a peace officer in this or any other state.

(e) An investigator of the Criminal Justice Division of the Department of Justice of the State of Oregon.

(f) Any other person specifically authorized by law to issue citations for the commission of violations.

(2) "Violation" means an offense described ORS 153.008.

(3) "Violation proceeding" means a judicial proceeding initiated by issuance of a citation that charges a person with commission of a violation.

(4) "Traffic offense" has the meaning given that term in ORS 801.555. [1999 c.1051 2]

O.R.S. 153.008 Violations described. (1) Except as provided in subsection (2) of this section, an offense is a violation if any of the following apply:

(a) The offense is designated as a violation in the statute defining the offense.

(b) The statute prescribing the penalty for the offense provides that the offense is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The statute may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment.

(c) The offense is created by an ordinance of a county, city, district or other political subdivision of this state with authority to create offenses, and the ordinance provides that violation of the ordinance is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The ordinance may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment.

(d) The prosecuting attorney has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.566.

(e) The court has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.568.

(2) Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime. [1999 c.1051 3]

O.R.S.153.012 Violation categories. Violations are classified for the purpose of sentencing into the following categories:

(1) Class A violations;

(2) Class B violations;

(3) Class C violations;

(4) Class D violations;

(5) Unclassified violations as described in ORS 153.015; and

(6) Specific fine violations as described in ORS 153.015. [1999 c.1051 4]

O.R.S. 153.015 Unclassified and specific fine violations. (1) An offense described in the Oregon Revised Statutes that is designated as a violation but does not specify the classification of the violation is an unclassified violation. An unclassified violation is a Class B violation.

(2) A specific fine violation is any offense described in the Oregon Revised Statutes that:

(a) Is not designated as a crime or as a class A, B, C or D violation;

(b) Is not punishable by a term of imprisonment as a penalty for committing the offense; and

(c) Is punishable by a specific fine as the penalty for committing the offense. [1999 c.1051 5]

O.R.S.153.018 Schedule of penalties. (1) The penalty for committing a violation is a fine. The law creating a violation may impose other penalties in addition to a fine but may not impose a term of imprisonment.
(2) Except as provided in this section, a sentence to pay a fine for a violation shall be a sentence to pay an amount not exceeding:

(a) $720 for a Class A violation.

(b) $360 for a Class B violation.

(c) $180 for a Class C violation.

(d) $90 for a Class D violation.

(e) The amount otherwise established by law for any specific fine violation.

(3) If no special corporate fine is specified in the law creating the violation, a sentence to pay a fine for a violation committed by a corporation shall be in an amount not to exceed twice the fine established under this section for a violation by an individual. If a special corporate fine is specified in the law creating the violation, the sentence to pay a fine shall be governed by the law creating the violation.
(4) If a person or corporation has gained money or property through the commission of a violation, instead of sentencing the defendant to pay the fine provided for in subsection (2) or (3) of this section, the court may sentence the defendant to pay an amount fixed by the court, not exceeding double the amount of the defendant's gain from the commission of the violation. For the purposes of this subsection, the defendant's gain is the amount of money or the value of property, as determined under ORS 164.115, derived from the commission of the violation, less the amount of money or the value of property, as determined under ORS 164.115, returned to the victim of the violation or seized by or surrendered to lawful authority before the time sentence is imposed. [1999 c.1051 6; 2003 c.737 103]

O.R.S.801.545 "Traffic crime." "Traffic crime" means any traffic offense that is punishable by a jail sentence. [1983 c.338 100]

O.R.S.801.550 [1983 c.338 102; 1999 c.1051 83; renumbered 801.557 in 1999]

O.R.S.801.555 "Traffic offense." "Traffic offense" means any of the following offenses:

(1) Any violation of a traffic ordinance of a city, municipal or quasi-municipal corporation, except ordinances governing parking of vehicles.

(2) Any provision of law for which a criminal or traffic violation penalty is provided in the vehicle code.

(3) Any provision of law for which a criminal or traffic violation penalty is provided in ORS chapter 825. [1983 c.338 101; 1985 c.16 27; 1999 c.1051 84]

O.R.S.801.557 "Traffic violation." "Traffic violation" means a traffic offense that is designated as a traffic violation in the statute defining the offense, or any other offense defined in the Oregon Vehicle Code that is punishable by a fine but that is not punishable by a term of imprisonment. Penalties for traffic violations are as provided for violations generally in ORS 153.018. [Formerly 801.550]

O.R.S.161.545 "Misdemeanor" described. A crime is a misdemeanor if it is so designated in any statute of this state or if a person convicted thereof may be sentenced to a maximum term of imprisonment of not more than one year. [1971 c.743 69]

O.R.S.161.555 Classification of misdemeanors. (1) Misdemeanors are classified for the purpose of sentence into the following categories:

(a) Class A misdemeanors;

(b) Class B misdemeanors;

(c) Class C misdemeanors; and

(d) Unclassified misdemeanors.

(2) The particular classification of each misdemeanor defined in the Oregon Criminal Code is expressly designated in the section defining the crime. An offense defined outside this code which, because of the express sentence provided is within the definition of ORS 161.545, shall be considered an unclassified misdemeanor.

(3) An offense defined by a statute of this state, but without specification as to its classification or as to the penalty authorized upon conviction, shall be considered a Class A misdemeanor. [1971 c.743 70]

O.R.S.161.565 [1971 c.743 71; 1987 c.783 1; 1989 c.1053 17; 1991 c.111 17; 1993 c.533 4; 1997 c.852 12; repealed by 1999 c.1051 49]

O.R.S.161.566 Misdemeanor treated as violation; prosecuting attorney's election. (1) Except as provided in subsection (4) of this section, a prosecuting attorney may elect to treat any misdemeanor as a Class A violation. The election must be made by the prosecuting attorney orally at the time of the first appearance of the defendant or in writing filed on or before the time scheduled for the first appearance of the defendant. If no election is made within the time allowed, the case shall proceed as a misdemeanor.

(2) If a prosecuting attorney elects to treat a misdemeanor as a Class A violation under this section, the court shall amend the accusatory instrument to reflect the charged offense as a Class A violation and clearly denominate the offense as a Class A violation in any judgment entered in the matter. Notwithstanding ORS 153.018, the maximum fine that a court may impose upon conviction of a violation under this section may not exceed the amount provided in ORS 161.635 for the class of misdemeanor receiving violation treatment.

(3) If a prosecuting attorney elects to treat a misdemeanor as a Class A violation under this section, and the defendant fails to make any required appearance in the matter, the court may enter a default judgment against the defendant in the manner provided by ORS 153.102. Notwithstanding ORS 153.018, the maximum fine that the court may impose under a default judgment entered pursuant to ORS 153.102 is the maximum fine for the class of misdemeanor receiving violation treatment.

(4) A prosecuting attorney may not elect to treat misdemeanors created under ORS 811.540 or 813.010 as violations under the provisions of this section.

(5) The election provided for in this section may be made by a city attorney acting as prosecuting attorney in the case of municipal ordinance offenses, a county counsel acting as prosecuting attorney under a county charter in the case of county ordinance offenses, and the Attorney General acting as prosecuting attorney in those criminal actions or proceedings within the jurisdiction of the Attorney General.

(6) Notwithstanding ORS 137.290 (1)(d), the unitary assessment imposed upon conviction of a violation under this section is the amount provided in ORS 137.290 for the misdemeanor receiving violation treatment. [1999 c.1051 47; 2003 c.737 89]

O.R.S.161.568 Misdemeanor treated as violation; court's election. (1) Except as provided in subsection (4) of this section, a court may elect to treat any misdemeanor as a Class A violation for the purpose of entering a default judgment under ORS 153.102 if:

(a) A complaint or information has been filed with the court for the misdemeanor;

(b) The defendant has failed to make an appearance in the proceedings required by the court or by law; and

(c) The court has given notice to the district attorney for the county and the district attorney has informed the court that the district attorney does not object to treating the misdemeanor as a Class A violation.

(2) If the court treats a misdemeanor as a Class A violation under this section, the court shall amend the accusatory instrument to reflect the charged offense as a Class A violation and clearly denominate the offense as a Class A violation in the judgment entered in the matter.

(3) Notwithstanding ORS 153.018, if the court treats a misdemeanor as a Class A violation under this section, the maximum fine that the court may impose under a default judgment entered pursuant to ORS 153.102 is the maximum fine for the class of misdemeanor receiving violation treatment.

(4) A court may not treat misdemeanors created under ORS 811.540 or 813.010 as violations under the provisions of this section.

(5) Notwithstanding ORS 137.290 (1)(d), the unitary assessment imposed upon conviction of a violation under this section is the amount provided in ORS 137.290 for the misdemeanor receiving violation treatment. [1999 c.1051 48; 2003 c.737 90]

(Unitary Assessment)

O.R.S.137.290 Unitary assessment; amount; waiver. (1) In all cases of conviction for the commission of a crime or violation, excluding parking violations, the trial court, whether a circuit, justice or municipal court, shall impose upon the defendant, in addition to any other monetary obligation imposed, a unitary assessment under this section. The unitary assessment shall also be imposed by the circuit court and county court in juvenile cases under ORS 419C.005 (1). The unitary assessment is a penal obligation in the nature of a fine and shall be in an amount as follows:

(a) $107 in the case of a felony.

(b) $67 in the case of a misdemeanor.

(c) $97 in the case of a conviction for driving under the influence of intoxicants.

(d) $37 in the case of a violation as described in ORS 153.008.

(2) The unitary assessment shall include, in addition to the amount in subsection (1) of this section:

(a) $42 if the defendant was driving a vehicle that requires a commercial driver license to operate and the conviction was for violating:

(A) ORS 811.100 by driving at a speed at least 10 miles per hour greater than is reasonable and prudent under the circumstances; or

(B) ORS 811.111 (1)(b) by driving at least 65 miles per hour; and

(b) $500 if the crime of conviction is a crime found in ORS chapter 163.

(3) Subject to subsection (4) of this section, the court in any case may waive payment of the unitary assessment, in whole or in part, if, upon consideration, the court finds that payment of the assessment or portion thereof would impose upon the defendant a total monetary obligation inconsistent with justice in the case. In making its determination under this subsection, the court shall consider:

(a) The financial resources of the defendant and the burden that payment of the unitary assessment will impose, with due regard to the other obligations of the defendant; and

(b) The extent to which such burden can be alleviated by allowing the defendant to pay the monetary obligations imposed by the court on an installment basis or on other conditions to be fixed by the court.

(4) If a defendant is convicted of an offense, the court may waive all or part of the unitary assessment required under subsections (1) and (2)(a) of this section only if the court imposes no fine on the defendant. [1987 c.905 1; 1991 c.460 14; 1993 c.33 300; 1993 c.637 1; 1993 c.770 1,3; 1995 c.555 1; 1997 c.872 27; 1999 c.1051 127; 1999 c.1056 1d; 1999 c.1095 6; 2003 c.737 112; 2003 c.819 11]

Note: Section 113, chapter 737, Oregon Laws 2003, provides:

Sec. 113. The amendments to ORS 137.290 by section 112 of this 2003 Act apply to offenses committed on or after September 1, 2003. [2003 c.737 113]

Note: 137.290 to 137.300 were enacted into law by the Legislative Assembly but were not added to or made a part of ORS chapter 137 or any series therein by legislative action. See Preface to Oregon Revised Statutes for further explanation.

(503) - 230 -8360

Update 19.Nov.2004 13:32

CCM

Thursday we went to court got shuffled around didnt see a judge and were sent to the cashier to pay where all 12 entered a plea of Not Guilty. we will recieve notice of our court dates in hte mail in around 2 weeks

thanks for all you support everyone. The next Critical mass is nov 26, a week from today. be there. we will go over bicycle rights etc and ride to avoid any questions of illegality instead focusing on raising awareness of bicycles as good transportation and socially responsible yet discriminated against behavior.

ride safe, but ride!

Call the ACLU 30.Nov.2004 12:02

Andy in Eugene

I think a good attorney willing to do pro bono work would have some good ideas for you. I think you should try calling the ACLU here:
 http://www.aclu-or.org/legalrequest.htm

An attorney working on behalf of the ACLU should be able to assess your chances on the First Amendment issue.

If you do get in touch with an attorney, or one of you wants to do some legal research, I'd check out State v. Thomas, 101 Or App 551 (1990), affirmed as modifiend, 311 Or 182 (1991) (positive precedent for challenging violation treatment of a misdemeanor) and State v. Rode, 118 Or App 665 (1992) (negative precedent for such a challenge).

Good luck!