Oregon Appellate Court 03-23-11
by: Abassos • March 22, 2011 • no comments
Read the full article for details about the following new cases:
- DUII - Intoxilyzer Malfunction: When a Card is Complete
- Traffic Stop: Passenger/Free to Leave
- Assault I: Dangerous Weapon
- Waiver of Counsel: Voluntariness
Contents |
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DUII - Intoxilyzer Malfunction - When a Card is Complete===
An intoxilyzer printout is complete for the purposes of ORS 813.160(1)(b) and OAR 257-030-0070(4) if it reflects results for all the testing steps, even if the card has problems printing. An officer is not required to follow the protocol for incomplete cards solely because there is a printing issue. State v. Roberts
Traffic Stop - Passenger - Free to Leave
Where a passenger is told by an officer during a traffic stop that he is free to leave, he is not then stopped when, 5 minutes later, he's ordered out of the car (so the car can be towed) and consent to search is requested without any additional show of force. The court makes it clear that while they may well have decided the case differently before Ashbaugh, the Supreme Court has now made it clear that absent a show of authority, we should look to the officer's words to determine if there was a stop. Here, like in Ashbaugh, defendant was told he was free to leave and 5 minutes later asked for consent to search. "Without a show of authority that restricted defendant's movement, the content of [the officer's] question did not cause defendant to be seized." State v. Jones
Assault I - Dangerous Weapon
Where defendant bit off part of victim's ear, he could not be convicted of Assault I because teeth are not a dangerous weapon. However, where part of the ear is visibly and permanently missing, it is a protracted disfigurement that qualifies as a serious physical injury. State v. Kuperus
Waiver of Counsel - Voluntariness
The opinion starts with the phrase "This case involves chutzpah" and goes downhill for the defendant from there. The bottom line ruling is that where a defendant with significant criminal experience fires his attorney during trial so that he can represent himself, against the judges advice, he cannot then complain that he didn't understand his right to counsel and did not voluntarily waive counsel. This is particularly true where, as here, the attorney remains as a legal advisor. The judge also did not abuse his discretion in denying a fifth setover for defendant to acquire counsel for sentencing when defendant competently requested the previous four setovers and repeatedly indicated he had the ability to retain counsel. State v. Easter
