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Oregon Appellate Court 12-16-09

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by: Abassos • December 15, 2009 • no comments

Read the full article for details about the following new cases:

  • Probable Cause - Failure to Drive Within the Lane
  • Mootness - Return of Property (Medical Marijuana)
  • For Cause Juror Challenges/Admission of Prior Probation Evidence
  • Delinquency - Youth's Best Interest
  • Attenuation - Unprompted Offer to Search
  • Delivery of Marijuana - A Felony


Probable Cause - Failure to Drive Within the Lane

An officer has p.c. to stop a vehicle for failure to drive within the lane when the vehicle drives onto, but not over, the lane lines four times in a short distance. Here, the stop led to a DUII. State v. Vanlom

Mootness - Marijuana

The court dismisses the State's appeal from a trial court order returning 8 ounces of medical marijuana to each of the defendants in a manufacturing case. The appeal was moot because there was no way to retrieve the marijuana which had already been returned to the defendants. 'Cause it was smoked. State v. Ehrensing

For Cause Juror Challenges/Admission of Prior Probation Evidence

The court rejects all the defendant's arguments in this DUII manslaughter case. The trial court did not err in forcing defendant to use a peremptory challenge to remove a local journalist who had read the police reports already. But a juror's prior knowledge doesn't matter unless it has created "such fixed opinions" that the juror cannot be impartial. The trial court also did not err in allowing evidence of defendant's prior DUII conviction as well as several articles defendant was required to read as part of his probation. The evidence went to mental state - the question of whether defendant knew how risky his behavior was. And, finally, even assuming the failed procedure of the blood draw was inadmissible, it was harmless error because defendant admitted he was intoxicated - so it didn't matter whether he was above .08. State v. Berliner

Delinquency - Youth's Best Interest

A juvenile court commits reversible error when it orders a youth to the custody of the OYA without making findings that it is in the youth's best interest. In the Matter of K.I.S.

Attenuation - Unprompted Offer to Search

The causal link between an illegal stop and evidence seized was so attenuated that the evidence was admissible despite the unlawful police conduct where defendant made an unprompted offer to allow the officer to search the car. The unprompted offer to search severed the connection of the evidence to the illegal stop. State v. Phillips

Delivery of Marijuana - A Felony

Delivery of marijuana is a class A felony where no additional facts are pled or proved. Defendant had demurred to the indictment because it alleged an A felony but the State hadn't pled additional facts like age or within 1000 feet of a school. The appellate court's position is that the fact of no consideration, like age and school, raises the crime to an A felony. It is a B felony if there is consideration. Despite the absurdity of the proposition, the appellate court says the statutory language is clear. They reserve the proportionality argument until after sentencing. State v Brown. Ryan Scott's comment regarding the proportionality issue:

"I want to send a brief reminder that there are a few other statutes that present very similar proportionality problems. The rule of thumb I use is this: would a defendant be better off at sentencing if he had committed a more egregious offense? If yes, then there is probably a proportionality problem. (1) Right now, two or three ID Thefts can carry a greater sentence than a single count of Aggravated ID Theft (ten or more ID Thefts in a six month period). (2) Sex with a 14 year old (Rape III) is a 6 on the grid but sex with a 17 year old (Sex Abuse II) is a 7. (3) Aiding and abetting a misdemeanor prostitution is a felony (Promoting Prostitution, sub D.) There are a couple of others, but those are the ones I remember offhand"