Oregon Appellate Court 07-20-11
by: Abassos • July 19, 2011 • no comments
Read the full article for details about the following new cases:
- Search and Seizure-Stop of a Passenger
- Merger-Robbery
- Parole-Effect of Consecutive Sentences
- Right to Counsel-DUII Breath Test
- DUII-Comment on Refusal to Take Breath Test
- Civil Commitment-Danger to Others
- Juvenile-Sibling Visitation
- TPR-Past Alcohol Abuse
Contents |
Search and Seizure-Stop of a Passenger
On remand to reconsider in light of Ashbaugh, the court finds that a passenger was not stopped when the officer asked him to get out of the car, asked him to walk to the back of the car, and asked whether he had drugs or weapons. Under Ashbaugh, none of these actions were a "show of authority." The court goes to some lengths to distinguish "asking" from "ordering" - a blurry line teeming with potential for adversarial interpretation in almost every passenger stop case. State v. Lantzsch
Merger-Robbery
Convictions for first-degree robbery and second-degree robbery involving the same conduct do not merge, since the two statutes are in different sections, have different degrees, different punishments, and different elements. Multiple convictions of second-degree robbery under different theories involving the same conduct must merge. State v. Colmenares-Chavez
Parole-Effect of Consecutive Sentences
The Board of Parole may impose parole whenever it "releases" an inmate from his sentence before the good time date, even if the inmate immediately begins serving a consecutive sentence for another conviction. The board has the authority to do so because it legally released him from the original sentence and enabled him to begin serving the consecutive sentence. Shelby v. Board of Parole
Right to Counsel-DUII Breath Test
Oregon law does not require police to ask for a breath test before giving the suspect an opportunity to contact counsel, as long as the suspect knows that a breath test is imminent. Further, an equivocal request for counsel triggers an officer's duty to ask follow up questions and inform the defendant of his right to counsel only when it appears that the officer intends to remain in the room with the defendant. Finally, the court rejected the idea that leaving the door ajar while the defendant tried to contact counsel did not give him an adequate opportunity for private counsel, since he in fact was not able to reach his lawyer. State v. Robinson
DUII-Comment on Refusal to Take Breath Test
By testifying that he refused to take the breath test because he was unable to reach his lawyer and get his advice, the defendant opened the door to comment on his refusal and the reasons for it. Any prejudicial quality of the evidence was cured by an instruction that the jury should not use his refusal to infer guilt. State v. Robinson
Civil Commitment-Danger to Others
In the three months leading up to the hearing, the AMIP shoved her ex-boyfriend against a kitchen counter, threw a metal object at him, punched him, and mimed stabbing him in the stomach. These events, coupled with a history of serious verbal threats and the concession by the AMIP that she suffers from a mental illness, were sufficient to show that the AMIP was a danger to others. State v. D.L.W.
Juvenile-Sibling Visitation
A juvenile court has authority under ORS 419B.337(3) to order visitation between a ward of the court and her siblings, even when the siblings are not under the court's jurisdiction. The father, who had custody of the siblings, was within the jurisdiction of the court and as such the court could "make an order regarding visitation by the ward's parents or siblings." Dept. Human Services v. J.R.F.
TPR-Past Alcohol Abuse
Mother was determined to be currently unfit where, despite being sober for the two and a half years leading up to trial, she had an extensive history of alcoholism and her children had been removed at 3 different points in the past due to alcohol-induced neglect. Her recent sobriety was attributed to having been in a structured environment (jail for 2 years and after a DUII intensive supervision program) and was not sufficient to show that she was currently a fit parent. Her history of alcoholism and "her related criminal conduct," combined with untreated mental health issues, allowed the court to conclude that she was still an alcoholic and could not become a fit parent within a reasonable time, as the children needed immediate permanency. Dept. of Human Svcs v. K.K.M.
