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Oregon Court of Appeals 04-21-10

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by: Abassos • April 20, 2010 • no comments

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

  • Sex Abuse - Admissibility of Diagnosis (CARES)
  • DUII Diversion - Ineligibility for Prior Participation in Treatment
  • Stop - Criminal Investigation


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Sex Abuse - Admissibility of Diagnosis - CARES===

Another Southard case, following on the heels of Lovern and Merrimon: There shall be no diagnosis of sex abuse in the absence of physical evidence. In this case, a pediatric nurse practitioner from CARES gave a diagnosis of sex abuse "to a reasonable medical certainty" despite the complete absence of physical evidence. Convictions reversed. Note that the correct objection in this situation is under OEC 403 - though you should make the Brown/O'Key scientific evidence argument as well. State v. Clay

DUII diversion - Ineligibility for Prior Participation in Treatment

Prior participation in treatment, for the purposes of DUII diversion, requires "interactive involvement with a diversion or rehabilitation program." It isn't enough that the defendant was ordered to do treatment or agreed to do treatment if he completely blew off the actual treatment. Here, defendant never once went to treatment. So there was no interactive involvement. The court specifically states that they're not deciding how much involvement is enough because here there was none. State v. Parker

Stop - Criminal Investigation

Facts: a police officer sees someone slumped in a car so he parks down the block and walks back to the car. He asks the slumped defendant if she is involved in any illegal activity - to which she responds that she isn't. Then he asks her name and birthdate, runs a check and finds out that defendant's license was suspended. A consent search follows in which drugs are found. Despite both criminal accusations and a warrant check, the court finds that it was unreasonable for defendant to believe she wasn't free to leave. The court dispenses with the criminal accusation saying it was more of a general inquiry. As for the warrant check:

the facts here are insufficient to create an objectively reasonable belief by defendant that her liberty had been restricted, that is, that she was required to remain in her parked car while Pontius ran a warrant check to determine if there was an outstanding warrant for her arrest. After Pontius had written down defendant's information, he closed his notebook and put it in his pocket, thanked defendant, and walked away. Pontius did not communicate to defendant his intention to make any use of the information, instruct her to remain while he ran a warrant check, or run the warrant check in her presence.

It is potentially distinguishable that the officer parked down the block. Note also that the officer did not take defendant's license, but rather just her name and birthdate, when he went to do the check. State v. Maxie