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Oregon Court of Appeals 06-23-10

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by: Abassos • June 22, 2010 • no comments

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

  • Stop - Seizure of a Passenger
  • Fines - Ability to Pay
  • Statutory Speedy Trial
  • DUII - Breath Test Refusal
  • DUII - Diversion Eligibility
  • Search Incident to Arrest - Cell Phone
  • Double Jeopardy - VRO vs. Assaults


Stop - Seizure of a Passenger

A person has been seized if (a) they subjectively believe they're not free to leave, and (b) that belief is objectively reasonable. The officer's uncommunicated thoughts aren't relevant to whether the defendant's belief was reasonable. Here, the passenger defendant was asked to step out of the car because the officers had decided to cite the driver and have the vehicle towed. Generally it does not rise to the level of seizure when a passenger is asked to step out of a car in order to let the police do something "legitimately related to the traffic stop," such as searching or towing the vehicle. But the defendant was not aware of the officers' decision to cite the driver or tow the car, and therefore it was reasonable for him to believe he had been seized. State v. Smith

Fines - Ability to Pay

When a defendant is sentenced to prison, any part of the sentence requiring payment of fines is enforceable during the prison term only if the trial court expressly finds that the defendant is able to pay. Reversed for resentencing. State v. Lewis

Statutory Speedy Trial

The fact that a defendant has two cases proceeding simultaneously does not make additional delay reasonable. The State argued that the reason for a 15-month delay was the coupling of scheduling in the defendant's two cases. This did not justify the delay. "Defendant should suffer no loss in the quality of justice afforded to her because she was charged in more than one case." State v. Davis

DUII - Breath Test Refusal

"Refusal" just means non-submission - an unequivocal refusal isn't needed. Here, the officer explained to the defendant the rights and consequences related to breath tests, answered her questions, and offered to let her call someone for advice. She expressed confusion and did not unequivocally refuse the test, after two offers. This was enough to cite her for refusal. "A person's failure to promptly agree to take a breath test constitutes a refusal." Fitzpatrick v. DMV

DUII - Diversion Eligibility

When a defendant petitions to enter a diversion program, and has already participated in one previously, the court is only required to deny the petition if the prior participation was after the filing of the present petition. State v. Talley (per curiam).

Search Incident to Arrest - Cell Phone

The police may conduct a warrantless cell phone search incident to an arrest for meth delivery where defendant is observed using the cell phone as part of a drug deal. However, the court does not address a better argument (unpreserved at trial) that a smart phone is indistinguishable from a computer, entitled to additional protection because it is essentially a portal to a person's entire private life. Also, a 40 minute delay between arrest and search was appropriate where the officer needed to get the phone to an expert at the station. State v. Nix

Double Jeopardy - VRO vs. Assaults

Double jeopardy prevents the state from relitigating the same factual issues from the same criminal episode in a second prosecution for different charges. Here the Defendant was initially convicted of violating his restraining order and later charged with assault based on the same incident. State v. Potter