Astoria DUII falls under the radar
City prosecutor won’t appeal May 11 drunken driving dismissal

By KARA HANSEN
The Daily Astorian

Get arrested for driving under the influence of intoxicants in Warrenton, and you'll likely face the charge in Clatsop County Circuit Court, a "court of record" held to state standards of judicial conduct.

But get caught across Youngs Bay Bridge in Astoria, and the outcome in the city's municipal court is more debatable.

Last May 11, Port of Astoria Harbormaster Ken Smith was cited for DUII after police pulled him over for allegedly speeding as he drove his Harley motorcycle up Seventh Street from Olney Avenue.

Astoria Police Sgt. Brian Aydt reported smelling alcohol on the driver's breath. Smith submitted to field sobriety tests, failing twice to recite the alphabet. Counting backward from 25, he made it to 21, according to the police report. He was arrested but refused a breath test. On the way to the station, he reportedly dozed off in the police car.

But all of that information was thrown out in Astoria Municipal Court, where Judge Kris Kaino ruled there wasn't enough proof of speeding and agreed to suppress evidence. The case was dismissed March 15.

Smith had pleaded guilty to drunken driving in Clatsop County Circuit Court in 2000, and to another DUII charge that was cited into circuit court by Warrenton police in 1993. But if Astoria police officers are concerned about the recent case, the city affords little grounds to appeal, which is a process that would be initiated by City Prosecutor Dan Van Thiel.

"It's pretty straight-forward," Van Thiel said Thursday from his Baker City office. "At the present time, there are no appeals taken from the municipal court rulings. That's simply based upon the city's decision that it does not want to incur the legal expenses to take appeals on the legal decisions in that court."

It's unclear who made that decision in the first place. But Van Thiel can't remember ever appealing a municipal court decision in the 30-plus years he's worked for the city.

"I don't think there's a policy," he said, but former City Manager Dan Bartlett's "indication was the city's money would not be put out to pay for legal expenses for appeals."

However, Bartlett, now interim city manager in Damascus, said he doesn't remember that.

"I don't think the city manager should make decisions for the prosecutor," Bartlett said.

Astoria City Manager Paul Benoit also feels appeals are out of his hands.

"My expectation would be that the city's prosecuting attorney, if there's an issue that warrants an appeal, will request it," he said. If a city manager became involved with decisions issued in municipal court, it could look like "favoritism" or "manipulating justice," Benoit said. But appeals, he added, are "time-consuming and expensive."

However, the actual costs are difficult to pin down. "You can't put a figure on it, because you don't know how much time would be spent," Van Thiel said.

Astoria and other coastal towns oppose Marquis bill to record court proceedings

Because Astoria's court is not a "court of record," defendants would essentially receive an entirely new trial in circuit court. The city would have to pay attorneys an hourly rate, said Van Thiel.

But unlike a municipal case, circuit court proceedings would be documented, leaving a record for future appeal, and eliminating the gray area of how laws were interpreted and what happened with the case.

Those documents are especially important with drunken driving cases, said Clatsop County District Attorney Josh Marquis. That's why he authored a bill he hopes will level the handling of violations in city-run courts by keeping DUII cases on the record.

"I brought this bill to the Legislature not specifically because of Astoria's municipal court problems," he said. "I made no mention of the particular concerns about Astoria, but instead described statewide problems that prosecutors have. ... We often have to rely on documents from municipal courts, not just Astoria but across Oregon. There's no standard between those courts, and they're subject to varying levels of accountability.

"There is no state standard," he said. "Concerns have been brought to me repeatedly by police officers with concerns about the way the cases are handled, and sometimes about the results. This is the legal version of 'when a tree falls in the forest and no one is there to hear it, does it make a sound?'"

Marquis' bill would require municipal courts that try DUII cases to become courts of record, keeping permanent records of proceedings.

Meanwhile, mayors in four North Coast cities have signed a letter to lawmakers opposing the proposition and requesting notice of any hearings.

"We believe the decision to become a court of record is best left to duly elected city officials, who know their cities' needs and can assess the financial impact," states the letter, signed by Astoria's Willis Van Dusen, Cannon Beach's John Williams, Seaside's Don Larson and Warrenton's Gil Gramson.

Marquis argued that financial impact would actually be quite low.

"Fifteen years ago, a proposal like this might have been really expensive because of the technology costs. But essentially, all this requires is to purchase a recorder with four microphones," he said. "I'm disappointed to learn that the mayors of three Clatsop County cities jointly signed a letter about a bill that has no effect whatsoever on their municipal courts."