Oregon Appellate Court 09-08-11
by: Abassos • September 7, 2011 • no comments
Read the full article for details about the following new cases:
- Stop - Free to Leave - Show of Authority
- Stipulated Agreements
- FAPA Restraining Order - Abuse - Fear of Imminent Bodily Injury
- FAPA Restraining Order - Abuse - Fear of Imminent Bodily Injury
- DUII Conviction Fee (the 2009 version)
- Warrantless Breath Test - Machuca
- Stalking Protective Order - Unequivocal Threat
- Criminal Mistreatment - Withholding of Care
- Civil Commitment - Basic Needs
- Search - Inventory
- Seizure - Exigency - DUII
Stop - Free to Leave - Show of Authority
It was not a show of authority, sufficient to create a stop, when the officer asked defendant, a passenger in a stopped car, to step out of the car and then asked her whether she had any drugs or weapons. Defendant had just asked if she could walk home and the officer said "sure". Because he was about to inventory the car pursuant to it being towed, he asked defendant to step out of the car. After she did, the officer asked whether she had any drugs or weapons. The fact that defendant didn't feel free to leave is irrelevant to the analysis. The question is whether a reasonable person would have felt free to leave, and that question collapses into whether there was a sufficient show of authority. State v. Dudley
Stipulated Agreements
A stipulated agreement, entered into in open court, is a binding contract that is enforceable even if one party was grossly negligent. Here, counsel for the state in this PCR settlement twice agreed , on the record, to both a reduction of the primary charge and that it be concurrent to a different case. When, after court,the state's counsel tried to back away from the deal, saying he never intended to agree to a concurrent sentence, it was too late. It was a binding contract. Clement v. Mills
FAPA Restraining Order - Abuse - Fear of Imminent Bodily Injury
There was sufficient evidence of a fear of imminent bodily injury where respondent made repeated veiled threats to petitioner and created a "pattern of chilling behavior" by, for example, slashing petitioner's tires, lurking in her bushes, breaking into her yard, chasing her in a car, etc.. There was ample demonstration of a dangerous obsession. Hubbell v. Sanders
FAPA Restraining Order - Abuse - Fear of Imminent Bodily Injury
There was sufficient evidence to support the trial court's finding of imminence where respondent repeatedly and specifically threatened to kill petitioner if she tried to take the kids as they separated. There were also repeated vague but more immediate threats and one specific threat to kill petitioner's new boyfriend's relative for supporting their relationship. The potential bodily injury need not be immediate if it is "menacingly near".
A strong dissent by J. Armstrong argues that the standard for deciding imminence is legally wrong, based as it is on a misreading of the Menacing statute. The meaning of the word "imminent" in the FAPA statute clearly means within the span of several days, not some unknown point in the future. The majority doesn't address the issue directly because, they say, it was never raised by respondent and requires overturning precedent that would affect criminal cases without hearing from the state. Holbert v. Noon
DUII Conviction Fee (the 2009 version)
Where the DUII statute required a fee of $130.00, it was plain error to impose a fee of $230.00. State v. Wilson
Warrantless Breath Test - Machuca
The court remands to the trial court to determine whether this is one of the "rare cases" that would require a search warrant prior to a breath test for DUII. The Supreme Court in Machuca set the standard for such a rare case: "where a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances." The court suggests that this might be one of those rare cases and gives a hypothetical to illustrate what would clearly be a situation requiring a warrant:
An officer stops and arrests a motorist for DUII on a highway in a remote area of central or eastern Oregon, miles from the nearest town (and tow truck). The officer cannot transport the suspect to the stationhouse for a breath test until the tow truck arrives to remove the suspect's vehicle- which will take well over an hour. So it will take at least two hours before the breath test can be administered. Although the officer may be engaged during some of that time (e.g., inventorying the vehicle), there will be a significant amount of time that the officer is not otherwise engaged and is simply waiting for the tow truck. Assume further that therecord establishes that a reasonably objective officer knows that he or she can generally obtain a telephonic warrant in 30 minutes and that, thus, in the hypothetical circumstance, the warrant would be waiting by the time that the officer and suspect arrive at the stationhouse. Under such circumstances, the "rare case" exception would apply.
Stalking Protective Order - Unequivocal Threat
Where defendant told the victim outside of a courtroom, before a hearing, that "you're going down today" and that the defendant would prove that the victims were the criminals, it did not amount to the sort of unequivocal threat required for the violation of a Stalking Protective Order.
Also, defendant was not entitled to a choice of evils instruction because his conduct (stopping outside of the courtroom to talk to the victim) was not necessary to avoid the evil (failing to appear for court). He could have gone into court without communicating with the victim. State v. Ko
Criminal Mistreatment - Withholding of Care
Defendant did sufficiently withhold care for the purposes of criminal mistreatment when she failed to take her legally blind son to an eye doctor or otherwise obtain corrective lenses for him. The state did not prove that she sufficiently withheld medical care where she failed to take the kids to routine visits for medical, dentistry and vaccinations. The Criminal Mistreatment statute was intended to apply to "cruel deprivations of care" and to apply to conduct more serious than a substantial and unjustifiable risk of danger to health and welfare:
Considering the text and legislative history, we conclude that, for the purposes of ORS 163.205, a person withholds necessary and adequate physical care when the person withholds care that is absolutely required to meet a dependent's basic safety and survival needs. That standard can be satisfied by withholding care for a condition that causes or will cause serious physical pain or injury.
While there was some evidence in the case that defendant failed to take her children to a dentist even after pain and problems arose, neither the pain nor the problems were nailed down by the state in terms of timing or severity.
Also, a defendant may raise, and properly preserve, an issue that relates to multiple counts without reiterating the argument for each count "seriatim (or ad nauseum)". State v. Drown
Civil Commitment - Basic Needs
In order to commit a person for an Inability to Care for Basic Needs, the state "must establish the existence of a non-speculative threat to the person's near term survival. . . the state must present evidence that, as a result of a mental disorder, the person would probably not survive in the near future." Here, the evidence showed, at best, that if it got cold and if defendant did not have shelter that his life could be threatened by hypothermia. But there was no evidence that the weather would turn cold. And there was no evidence that the AMIP would not seek shelter. In fact, the only relevant evidence showed that AMIP had sought shelter at a post office and a bar. It wasn't ideal shelter but it certainly showed his desire to stay out of the cold. State v. D.M.
Search - Inventory
The state concedes in this per curiam case that removing the console of a car (located between the front seats) exceeds the permissible scope of an inventory search. Thus, the motion to suppress should have been granted. State v. Jorgensen
Seizure - Exigency - DUII
An exigent circumstances exception to the warrant requirement did not exist where an officer ordered defendant out of his house for a suspected DUII and threatened to arrest him if he didn't comply. The fact that he had probable cause to arrest defendant for DUII did not relieve the officer of his duty to get a warrant. State v. Brossart
