Vehicle Inventory Policy & Closed Containers

July 11, 2012 Leave a comment

The Oregon Court of Appeals recently addressed the issue of Police Department Vehicle Inventory Policies when they held invalid the Marion County Sheriff’s Office General Order 66.2.1 for authorizing inspection of “all closed containers that could contain valuables.” (State vs. Cordova, Court of Appeals, June 13, 2012). In Cordova, the Court affirmed it’s prior ruling when it held that “An inventory policy that authorizes the opening of all closed containers, regardless of whether the container is normally associated with holding valuables, violates Article 1, section 9, of the Oregon Constitution.” State vs. Eldridge, 207 Or. App. 337 (2006). The better policy (and likely to pass scrutiny) would be one to open all containers “designed to” or “likely to” contain valuables.

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Case Law Review: Establishing Venue

March 11, 2012 Leave a comment

The Court of Appeals recently upheld the denial of D’s MJOA because the State had failed to precisely establish Jackson County as the venue in a DUII prosecution. In State vs. Stephanie Faye Davis, (CTA, February 23, 2012), the Court explained that in the instant case the State had established that the offense took place in Medford, Oregon with specific references to street names and other references. In such a case, a jury was not required to “stack inferences” to establish venue. This type of evidence is the difference between speculation of venue (not permissible)  versus being able make inferences from circumstantial evidence (permissible).

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Case Law Review: Understanding Implied Consent

March 11, 2012 Leave a comment

The Oregon Supreme Court recently held that the suspension for refusing a breath test cannot be suppressed simply because a defendant cannot understand what is being read to them under the Implied Consent laws. In State vs. Jose Nunez Cabanilla (March 1, 2012), the Defendant (a non-English speaker) was arrested for DUII and read the implied consent provisions. After refusing, the Defendant moved to suppress the refusal. The court held that under the law, “a driver has already consented to the test. The driver cannot legally refuse….when a driver is asked to take a breath test, his or her only decision is whether to physically refuse.”

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Case Law Review: Interfering with a Peace Officer

July 24, 2011 Leave a comment

Interfering with a Peace Officer (ORS 162.247), prohibits conduct when someone “intentionally acts in a manner that prevents, or attempts to prevent, a peace officer from performing the lawful duties of the peace officer with regards to another person.”  ORS 162.247(1)(a).  As applied, the question is whether or not this conduct is extended to speech?  In State vs. Brent Wai Lam, 176 Or. App. 149 (2001), the Court of Appeals held that “the statute was not intended to reach speech alone.”  In support of it’s decision the Court relied heavily on the legislative history of the bill’s sponsor, Representative Floyd Prozanski, who’s testimony provided, “I want to make clear that the intent, my intent, is not to limit speech.  It’s to deal with the physical contact, or I should say, conduct of an individual.”  Id. at 155.

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Court of Appeals clarifies DUII “statutory counterpart” language

July 10, 2011 Leave a comment

In State vs. Abdul Haleem Rutherford (Court of Appeals, June 29, 2011), the court of appeals affirmed the trial court’s ruling that the Defendant’s two prior Nevada convictions for DUII were equal to or “statutory counterparts” to Oregon’s DUII law, ORS 813.010.  At issue in Rutherford was whether or not the Defendant would be subject to Oregon’s enhanced provisions for a lifetime license suspension on his third DUII conviction.  Rutherford argued that his two prior convictions in Nevada were not “statutory counterparts” based largely on the argument that his first Nevada conviction was more akin to Oregon’s own diversion program, and therefore should not be considered as a “conviction.”  In refuting Defendant’s argument, the Court again clarified it’s position that “A statutory counterpart to ORS 813.010 is one that is either remarkably similar to or that has the same use, role, or characteristics as ORS 813.010.”  State vs. Rawleigh, 222 Or. App. 121, (2008).  Additionally, “a statute may be a statutory counterpart to ORS 813.010 even if it does not have the same elements as ORS 813.010.”

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Ignition Interlock proposed for all DUII Diversion Cases

June 17, 2011 Leave a comment

HB 3075 passed the Oregon House on Thursday which would require those entering Oregon’s DUII diversion program to install iginition interlock devices on their vehicles so they “blow before they go” as they say.  Currently, only those who are convicted of DUII in Oregon typically face installation of the interlock device.  The bill now goes to the Senate for consideration.  For full text of the bill go to: http://www.leg.state.or.us/11reg/measures/hb3000.dir/hb3075.1ha.html.  The cost of administering the program would allegedly be funded out of an additional $25.00 diversion fee.

 

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Case Law Update: Lidar finally scientifically reliable?

June 15, 2011 Leave a comment

The Oregon Court of Appeals recently held that LIDAR was scientifically reliable as to not require the state to present foundational evidence as to its admissibility – at least as that evidence pertains to measuring distances.  In State v. Branch, (A140218, June 1, 2011), the court did not go so far as to hold that LIDAR was scientifically reliable for determining the speed of an automobile.  However, this is clearly the first step in determining that evidence such as LIDAR should be admissible and considered scientifically reliable given it’s overwhelming use throughout the country.  (LIDAR has been used by the Portland Police Department for over thirteen years).  In Branch, the defendant had been arrested and convicted on two counts of unlawful delivery of cocaine within 1,000 feet of a school (ORS 475.882).  The officer used LIDAR to measure the distance from where the defendant sold to an undercover officer and the adjacent school.  In rejecting the defendant’s argument, the court held, “We conclude that the scientific principles and the means of applying those principles to the problem involved are so clearly apt for the end of measuring distances that those principles and their use for that purpose are indisputably valid.  Accordingly, the admission of the evidence in this case derived from the LIDAR device present’ a “clear case,’…and the state was not required to present foundational evidence…in order to establish the admissibility of the evidence.”

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