Oregon Supreme Ct. - Mar. 5, 2015
by: Frangieringer and Abassos • March 5, 2015 • no comments
Appellate Jurisdiction – State Can’t Appeal Misdemeanor Convictions, Nix Vacated
The state cannot appeal misdemeanor convictions. ORS 138.060 and ORS 138.222 allow the state to appeal a judgment for a felony conviction, but provide no authority to do the same for misdemeanors. Here, the Defendant was convicted of twenty counts of second-degree animal neglect. At sentencing, the trial court merged the convictions, finding that animals were not victims under the anti-merger statute. The state appealed and the Supreme Court, in a previous case, found that animals were indeed victims. In this case, the second appeal, the Supreme Court finds that the state lacked authority to bring the first appeal. As such, the Court and the COA lacked jurisdiction to hear the initial appeal. In so concluding, the Court vacates State v. Nix, 225 Or 777 (2014) and State v. Nix, 251 Or App 449 (2012) (both cases concluding that animals are victims). State v. Nix, 356 Or 768 (2015).
Search & Seizure – FSTs - Dissipation of Drugs is an Exigent Circumstance
Officers may conduct warrantless field sobriety tests when they have probable cause to arrest a person for driving under the influence of a controlled substance so long as the FSTs are: 1) reasonable in time, scope, and intensity, and 2) there is sufficient evidence that an exigent circumstance exists. Here, the Defendant was pulled over for two traffic violations. Based on the Defendant’s appearance: her slurred speech, sweating, glassy eyes and drooping eyelids, the officer had the Defendant perform three FSTs: the walk-and-turn test, the one-leg-stand test, and the finger-to-nose test. These warrantless tests were justified because unlike an alcohol-based DUII, a controlled substance DUII is generally based on observations made close to when the defendant was driving, not on a chemical analysis. Furthermore, the FSTs were reasonable in time, scope and intensity when they were administered immediately before the arrest, did not intrude into the Defendant’s body, and only assessed the Defendant’s coordination, balance, and motor skills. State v. Mazzola, 356 Or 804 (2014).
