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Oregon Court of Appeals 01-20-10

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by: Abassos • January 19, 2010 • no comments

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

  • Indictment - Demurrer
  • Good Time Hearings
  • Search and Seizure - Automobile Exception
  • Parole - Statutory Exceptions


Three new criminal cases, none of them good for the defense:

Contents

Indictment - Demurrer

A felony DUII indictment does not need to list the specific DUII priors. It merely needs to allege that they exist. It is enough that the defendant is advised of the State's theory. Here, defendant acknowledged that he knew exactly what the 3 convictions were that the State would rely on. ORS 813.326 State v. Molver

Good Time Hearings

The new HB 3508 hearings to decide whether to increase good time to 30 percent are not appealable. The appellate court has no jurisdiction to hear the cases. They don't impose or suspend imposition or execution of sentence or affect probation. I.e., they're not in the list of appealable actions in ORS 138.053(1). State v. Portis

Automobile Exception

A backpack reeking of marijuana found in a car during a traffic stop is searchable as an exigent circumstance. This, despite the fact that there's no way to tell whether it is more or less than an ounce of marijuana before opening the backpack. It turns out that the officers need not believe there to be evidence of a crime. Rather, they only need to have p.c. that there is contraband in the car: "probable cause to believe that a lawfully stopped automobile which was mobile at the time of the stop contains contraband or crime evidence justifies an immediate warrantless search of the entire automobile." Contraband includes evidence of a violation. As of today. State v. Smalley

Statutory Exceptions

There's also a pro se parole matter involving a juvenile ag murder case from 1992 where the kid was sentenced to life in prison. Ag murder cases are excepted from the statute imposing on the parole board various requirements like setting release dates and such. Juvenile cases are no different from adult cases in this regard. State Ex Rel Sopher v. Washington