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Oregon Court of Appeals 03-24-10

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by: Abassos • March 23, 2010 • no comments

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

  • DUII - Advice of Right to Privacy
  • MJOA - Assault III (Mere Presence)
  • Speedy Trial - Misdemeanors
  • Reconsideration


DUII - Advice of Right to Privacy

An officer only needs to advise an arrested person of the right to talk in private with an attorney if the person asks to talk to an attorney. No invocation, no advice. In this case, defendant was told he could call anyone he wanted, including an attorney. But he wasn't told that during a conversation with an attorney he would be given privacy. The defendant didn't invoke any rights, though he did call his girlfriend, a friend and his employer. Then he blew a .21. Which was admissible. State v. Mendoza

MJOA - Assault III- Mere Presence

A near-perfect summary from the case itself:

The only evidence in the record is that some unidentified assailant (or assailants) attacked [victim] while some undisclosed number of people were "further off." It is true, as the state asserts, that the jurors reasonably could have inferred from the fact that defendant entered Thayer's house shortly after [victim's] assault that he was present during [victim's] assault. But, as explained above, that is not enough. Rather, under Pine, the state was required to prove, beyond a reasonable doubt, that defendant intentionally or knowingly inflicted physical injury directly, or engaged in conduct so extensively intertwined with the infliction of the injury that such conduct could be found to have produced the injury to [victim]. It was not sufficient for the state to introduce evidence from which the jurors could have inferred that defendant was merely present-that is, "further off"-at [victim's] beating.

State v. Fry

Speedy Trial - Misdemeanors

A 17 1/2 month delay attributable to the state was not unreasonable where the vast majority of the delay was due to a lack of judicial resources. That is, there were simply no judges to try the case because at each setting some judges were unavailable and other cases took priority. State v. Lee


The Court of Appeals allows the state's appeal for reconsideration of this case. But then smacks the State down, saying they already decided the first issue and the state didn't preserve the other two issues. Which just seems kind of mean. Former opinion adhered to without discussion. State v. Anderson