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Oregon Court of Appeals 06-09-10

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by: Abassos • June 8, 2010 • no comments

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

  • Vertical Gaze Nystagmus Test - Scientific Validity
  • Failure to Register - Venue
  • DUII Breath test refusal - Right to consult attorney
  • Sentencing - Post Prison Supervision Conditions
  • Due Process - Right to names of Witnesses
  • PCR - Inadequate Counsel
  • Search - Third Party


Vertical Gaze Nystagmus Test - Scientific Validity

The state failed to establish the scientific validity of the vertical gaze nystagmus (VGN) test for intoxication, which measures jerking movements as the eyes move up and down. It wasn't enough that the state submitted a Department of Transportation manual asserting that "field experience" had found VGN reliable. It also wasn't sufficient that the Oregon Supreme Court previously endorsed the horizontal gaze nystagmus (HGN) test in State v. O'Key or that the appeals court implicitly endorsed the VGN in State v. Sampson as one component of the 12-step drug recognition expert (DRE) protocol. State v. Bevan

Failure to Register - Venue

Venue is a material element of Failure to Register as a Sex Offender which must be proved beyond a reasonable doubt. Where the State fails to prove where the crime took place (e.g., by proving where the defendant was living) they lose on MJOA. State v. Turner

DUII - Breath test refusal - Right to consult attorney

If the arresting officer knows that the defendant needs assistance in calling an attorney, that assistance must be provided. Defendant was given 15 minutes to call an attorney, but needed glasses to read the phone book, and the officer did not assist. Remanded for consideration of the factual question of whether the officer was told about the need for glasses before or after the 15 minute period. State v. Roesler

Sentencing - Post Prison Supervision Conditions

A sentencing judge may not issue a no contact order for post prison supervision. Only the parole board has that authority. Here, the sentencing judge unlawfully ordered the defendant on a sex case from having contact with the victim or with minor children. State v. Reed

Due Process - Right to names of witnesses

There is no Due Process right to the names of eyewitnesses who didn't talk to the police and aren't testifying at trial unless defendant can show that their testimony would be both material and favorable. Here, victim was with two friends when he was assaulted. On cross at trial, victim refused to reveal their names. Affirmed. State v. Bittner

PCR - Inadequate Counsel

Failure to Investigate Witnesses can be the basis for PCR. In this case counsel was constitutionally inadequate because the attorney didn't track down a witness his client told him about. But the defendant loses in PCR court because the witness's testimony wouldn't have been admissible evidence. Holcomb v. Hill

Search - Third Party

There is no 4th amendment protection when a third party turns over evidence to the police. Here a hotel employee brought to the police drugs and scales from a locked in-room safe after the defendant failed to check-out on time. When the police inventoried the items it was not a separate search. See State v. Luman. State v. Stokke