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Oregon Court of Appeals 04-14-10

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by: Abassos • April 13, 2010 • no comments

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

  • DUII - Illegal Consent for Breath Test
  • Dependency - Transfer of Jurisdiction
  • Official Misconduct I - Sufficiency
  • Sentencing Guidelines - Unconstitutionality/Vagueness
  • Statute of Limitations - Aggravated Murder
  • Hearsay - 3rd party Confession (Due Process)
  • Marijuana Possession - Full Faith and Credit/Interstate Travel
  • Preservation
  • Plain Error - Firearm Minimums
  • Preservation - GEI


DUII - Illegal Consent for Breath Test

Where there is probable cause and exigency, a breath test is admissible. This is true even if consent for the test was a product of unlawful police actions. Consent is unnecessary where there's an exception to the warrant requirement. Since exigent circumstances exist because of the "evanescent nature" of alcohol in the body, that means that neither consent nor a warrant is necessary for a breath test where there is PC to arrest for DUII. State v. Hays

Dependency - Transfer of Jurisdiction

The court erred in denying father's motion to transfer jurisdiction to Montana before hearing father's evidence and arguments. Permanency judgment vacated and remanded. DHS v. GG

Official Misconduct I

A 911 operator who didn't relay the full story of her husband shooting a dog was enough to get past MJOA on Official Misconduct I. The state's theory was that in relaying the incident to an officer, defendant withheld information that would have made her husband look bad. Because her duty as a 911 operator was to relay "complete" information, this was enough, in the light most favorable to the state. Harney County. State v. Peterson

Sentencing Guidelines - Unconstitutionality/Vagueness

In the sixth appellate review of defendant's murder sentence, the Court reverses the trial court's conclusion that the Sentencing Guidelines are the result of an unconstitutional delegation of authority to either the executive or judicial branch. The trial court had found that aggravating factors were elements of the crime which were not enacted by statute and, therefore, constituted an illegal delegation of legislative power. The Court also rejects defendant's argument that the aggravating factor scheme is void for vagueness because the judge could make up any new factor so long as it is "substantial and compelling". However, the particular factors applied in this case were clear. Thus, the Court doesn't address the question of whether a departure factor not on the Guidelines list would be void for vagueness. State v. Davilla

Statute of Limitations - Aggravated Murder

There is no statute of limitations for Aggravated Murder. State v. Anthony

Hearsay - 3rd party confession - Due Process

Unlike in the recent case of Cazares-Mendes, there was insufficient corroboration of a 3rd party confession to sidestep the hearsay requirements and admit the confession on Due Process grounds. Here, there was only the statement of an uninvolved witness indicating there may have been a second person involved. In Cazares-Mendes there were multiple witnesses who heard detailed confessions relating particulars peculiar to the crime of which defendant was accused. State v. Anthony

Marijuana Possession - Full Faith and Credit/Interstate Travel

In a traffic stop for speeding, the officer smelled unburnt marijuana. Defendant gave the officer a doctor's certification from California indicating that he was legally allowed to possess up to two pounds of pot and that he was to smoke 1.5 ounces a week. The Court finds that the Full Faith and Credit Clause did not impede the officer from investigating further and finding more than two pounds of pot. This is a detailed decision laying out why neither the right to interstate travel nor Full Faith and Credit impeded the officer from investigating or the State with charging defendant with felony marijuana possession. State v. Berringer


Where defendant was held in contempt for swearing at the judge while demanding a different attorney, it was not one of the rare cases where the requirement for preservation will be waived. An attorney was appointed who could have objected or asked for the judge's rationale. The fact that defendant refused to recognize his attorney didn't alter the fact that an appointed attorney was present and capable of objecting. State v. Phillips

Plain Error - Firearm Minimums

The court plainly erred when it imposed multiple firearm minimums arising from the same incident. The question addressed in this case is whether the Court should exercise its discretion to correct that plain error. Here, a remand serves the ends of justice because of the gravity of the error and the minimal cost of a resentencing. State v. Medina

Preservation - GEI

Defendant appeals from his GEI conviction, saying that he never asserted a GEI defense. A defendant cannot be found guilty of GEI if he has not asserted a GEI defense. Pratt v. Armenakis. The Court says he never made that argument to the trial court and the lack of a GEI defense is not clear from the record. The parties had come to a resolution in chambers which was put on the record in the form of a stipulated facts trial and the submission of a delusional letter by defendant. State v. Harbick