Posted: Sunday, November 18, 2007 12:00 am
Local man wants DUII arrest off his record but law says no
By BENNETT HALL
corvallis Gazette-Times
A Corvallis case is lending impetus to a movement to change a state law that says you can't get an arrest for a traffic offense removed from your record - even if you're innocent.
Brian J. Noakes was arrested in June on suspicion of driving under the influence of intoxicants. His blood alcohol level registered 0.00 on a breath test, a urine test came back negative for illegal drugs, and the district attorney declined to prosecute the case.
The arresting officer was Dave Cox, who resigned from the Corvallis Police Department Nov. 2 after an internal investigation related in part to Noakes' arrest.
Still, the arrest remains on Noakes' criminal record, and now he's threatening to sue the city over the incident.
Noakes declined to speak to the newspaper about his case, but his attorney says the arrest has unjustly damaged his client's reputation and could cost him future job opportunities.
"We say 'innocent until proven guilty,' but most people think if you're being arrested, you're being arrested for a reason," said the attorney, Dan Rayfield.
And it's not just Noakes, he added. Since news of that case came out, Rayfield said, he's been approached by a number of people claiming to be in the same boat. Some, but not all, say they were arrested by Cox.
"There are a lot of individuals who have blown 0.0, tested negative for drugs, and they still have an arrest on their record," Rayfield said.
Cox could not be reached for comment.
Oregon law allows people convicted of a wide range of crimes, including some felonies, to petition a judge to clear their record after three years. The same law - Oregon Revised Statute 137.225 - allows people arrested for a crime but never charged to ask for a clean slate after one year.
For some reason, however, the law specifically excludes traffic offenses, including DUII arrests.
State Sen. Floyd Prozanski tried to change that in the last legislative session, but his bill died in committee. Now, he says, Noakes' case has revived his determination to reform the law.
"I was on the right track, and I need to have this brought before the Legislature again," said Prozanski, a Eugene Democrat who works as a municipal prosecutor.
While he doesn't think it will be possible to reintroduce the bill in February's limited special session, Prozanski said he likely would do so in the next full session in 2009. And because he's been tapped to chair the Senate Judiciary Committee, he should be able to ensure the bill gets a hearing this time.
Prozanski said his proposal ran into opposition over concerns the change might allow drunk drivers who entered a diversion program in lieu of conviction to conceal that fact. As a prosecutor, he understands those concerns, but he also believes people who are arrested but never charged shouldn't have to pay the same price.
"Those individuals should have the right to have that arrest expunged from their record," he said.
Rep. Sara Gelser, D-Corvallis, said she's still looking into Noakes' case, but in general she supports the notion of letting innocent people clear their names.
"I certainly wouldn't want to do anything to weaken the ability to keep drunk drivers off the road," she said. "But at the same time innocent folks who haven't drunk anything shouldn't have this on their record."
Local defense attorney Jennifer Nash said she's been contacted a number of times over the years by people looking for a way to get a traffic arrest expunged, but she's had to turn them away.
"According to my analysis," she said, "the only way this can be addressed is through a legislative change."
John Henry Hingson, a prominent Oregon City lawyer who specializes in DUII defense, thinks she's right - but he doesn't think change will come easily.
State lawmakers face intense pressure from Congress and from lobbying organizations such as Mothers Against Drunk Driving to get tough on driving under the influence, he said. Anyone perceived as soft on drunken driving risks a backlash at the polls.
"The reality is that anyone who tries to temper justice with mercy when it comes to DUII becomes politically vulnerable," he said.
Short of changing the law, Hingson said, the only remedy available to people arrested for DUII but never charged may be a civil action for monetary damages.
"But last time I looked," he said, "giving somebody money didn't ever restore their reputation."