Oregon judge slams OHA staffer’s honesty, holds health agency in contempt for concealing defendants’ treatment progress

A Washington County Circuit judge on Friday issued an extraordinary rebuke of the Oregon Health Authority and one of its policy analysts for undermining the court’s efforts to monitor defendants’ compliance with court-ordered substance-abuse treatment requirements.

In a blistering 20-page ruling, Judge Brandon M. Thompson held the state agency and its driving-under-the influence-of-intoxicants coordinator, Marisha Elkins, in contempt for “intentionally interfering with this court’s lawful authority” to obtain urinalysis results and treatment details as allowed under Oregon law.

He wrote that it was “without question” that Elkins had “intentionally resisted and obstructed this court’s authority” and made clear that she risks five days in jail for each future attempt to undermine the court. He said the health authority also faced a $10,000 fine for each future obstruction.

“This court orders OHA and Ms. Elkins to cease and desist with any and all efforts to interfere and obstruct this court’s authority,” Thompson wrote.

Three health authority spokespeople did not immediately respond to emails late Friday seeking comment. Elkins also did not immediately respond to an email and voicemail seeking comment.

Thompson’s ruling caps a long-running dispute between the public-health agency and the Washington County Circuit Court over whether the courts are entitled to know if defendants have complied with mandated substance-abuse treatment in impaired-driving cases.

Thompson’s ruling suggests Elkins was behind a change to the form that treatment providers complete for the courts; the revised form did away with space for providers to detail a defendant’s progress. That change was made in 2019.

Though the opinion has implications for impaired-driving cases in Washington County, it is unclear what effect it might have on cases statewide. Last year, the county saw an estimated 1,200 felony and misdemeanor impaired-driving cases; about 10,000 were filed in Oregon.

According to the U.S. Centers for Disease Control and Prevention, 1,176 people were killed in Oregon in wrecks involving an impaired driver between 2009 and 2018.

Generally, people accused of driving under the influence of intoxicants for the first time are ordered to diversion programs. They typically avoid a conviction if they complete court-ordered treatment. As part of the process, defendants sign a form granting the court access to information about their compliance with treatment.

According to Thompson’s ruling, Elkins works with treatment providers and the local agencies that serve as a go-between for the courts and providers.

During a Dec. 16 hearing presided over by Thompson, Elkins was questioned about changes to the form treatment providers complete for the court, as well as the direction she provided to providers about what information they can disclose to the court and whether defendants can authorize the release of information to the court.

Thompson found Elkins “not credible,” describing her responses as “either evasive or misleading in an attempt to conceal her actions.”

The judge declared some of Elkins’ responses during the hearing as “reminiscent of Oliver North in the lran Contra hearings,” a Reagan Administration scandal during the 1980s.

Elkins was represented in the hearing by the Oregon Department of Justice. A DOJ spokesperson did not respond to a request for comment.

During the December hearing, Elkins acknowledged that she had also been accused of interfering with providing treatment details to the Clackamas County Circuit Court.

Thompson pointed out in his ruling that the law says courts are entitled to know about a defendant’s completion or failure to complete “all or any part of the treatment.”

He concluded Elkins had lied multiple times under oath during the hearing, including when she testified that she did not provide legal advice when Thompson said it was clear she had on multiple occasions. For instance, the judge noted, she told treatment providers that only “enrollment and completion” information could be provided to the court. Elkins is not a lawyer.

“Ms. Elkins is not only providing legal advice, but it is advice to not follow the law,” the judge wrote.

The judge also called out the Oregon Department of Justice, which he said knew Elkins was giving “inaccurate” legal advice, calling its actions “terribly troubling.”

Washington County alcohol-and-drug-screening specialist Deanna Kemper testified “about other misinformation Ms. Elkins is spreading both directly and indirectly,” Thompson’s ruling notes. Kemper is responsible for informing the court about a defendant’s compliance with treatment.

She testified that Elkins told her that “she does not believe people who voluntarily enter treatment and people who are court-ordered should be treated differently.”

— Noelle Crombie; ncrombie@oregonian.com; 503-276-7184; @noellecrombie

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