Oregon Appellate Court 11-23-11
by: Abassos • November 22, 2011 • no comments
Read the full article for details about the following new cases:
- Warm Springs Tribal Code - Hot Pursuit Provision
- Southard - Treatment Recommendations
- Arrest/PC - UUMV
- DMV Appeal - Agency Orders
- Parole Board - Severe Emotional Disturbance
Contents |
Warm Springs Tribal Code - Hot Pursuit Provision
A police officer from outside the Warm Springs reservation has the authority to arrest a person on Warm Springs tribal property if:
- A traffic offense was committed in the officer's presence in that officer's jurisdiction
- The officer immediately pursues the person
- The officer immediately arrests the person after the stop.; WSTC 310.100
Southard - Treatment Recommendations
The court will exercise its discretion to reverse a sex abuse case with a medical conclusion of sex abuse (in the absence of physical evidence) even where the conclusion is implicit and falls well short of a diagnosis. Here, the CARES doctor read into the record notes of a nurse who recommended that the alleged victim receive age appropriate treatment with a therapist skilled in working with victims of abuse. The court says that "the recommendation conveyed 'the expert's implicit conclusion that the [alleged] victim's reports of abuse are credible.'" Such an implicit conclusion falls squarely within the Southard prohibition and warrants reversal even in the absence of an objection. State v. Volynets-Vasylchenko
Arrest/PC - UUMV
- A person is in actual constraint (and, therefore, is arrested) where the person is ordered out of a car at gunpoint, put in handcuffs and stuffed into a police car. While officer safety is an exception to the probable cause requirement, the court doesn't make that decision because the police had probable cause in this case.
- The police have probable cause to arrest a passenger in a stolen car if they have an objectively reasonable belief that the car is stolen and that the passenger was recently driving the car. Here, the police had information that a male was using the stolen car at issue to chase down a woman. When they see the car a few minutes later in the same area, a female is driving and a male is in the passenger seat. They knew it was the same car because it was the same color, make and license plate.
DMV Appeal - Agency Orders
An opinion of an administrative agency must demonstrate the reasoning that leads the agency from the facts it finds to the conclusions it draws. Here, the petitioner had a solid argument of just cause for filing an untimely request for a DMV hearing challenging his implied consent license suspension. The DMV opinion simply says, without explanation "Petitioner has not established just cause". The court remands for some reasoning. Svidenko v. DMV
Parole Board - Severe Emotional Disturbance
The board properly found a severe emotional disturbance under the 1988 board rules where defendant's crimes were truly heinous, he has a personality disorder with antisocial features that is no different than when he committed the crimes and he has a substantial ability to delay gratification to achieve his objectives. A severe emotional disturbance exists where the person (1) has an emotional disturbance that is (2) present, (3) severe, and (4) makes the petitioner a danger to the health and safety of the community. Do not read the facts of this case unless you're prepared to have nightmares. Seriously. Suffice it to say that if this person doesn't have a severe and dangerous disturbance then nobody does. Gordon v. Board of Parole and Post-Prison Supervision
