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Oregon Supreme Ct - June 16, 2016

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by: Aalvarez • June 16, 2016 • no comments

Testing the Blood of a Lawfully Seized Animal Does Not Violate the Oregon or Federal Constitution

Neither Article I, section 9 nor the Fourth Amendment prohibit the drawing and testing of blood of an animal which has been lawfully seized based on probable cause that the animal has been neglected or otherwise abused.

Here, the state lawfully seized a dog, Juno, based on probable cause that the animal had been abused and/or neglected by its owner. In an attempt to determine what was causing the animal’s ailments, a veterinarian drew and tested the dog’s blood to better understand its medical condition. The testing revealed that the dog had no underlying condition that would have caused its poor condition, and thus indicated to the veterinarian that the dog’s condition was caused solely by malnourishment, which in turn, was caused by the owner’s failure to feed the dog.

The dog’s owner was prosecuted for second-degree animal neglect. The defendant moved to suppress the blood testing, on the grounds that it was an unlawful warrantless search. Even if the dog was lawfully taken into custody, the defendant argued that the state could only examine the exterior of the seized property, in this case, the dog, not its interior.

On appeal, the Court of Appeals agreed with the defendant. However, the Oregon Supreme Court now reverses the Court of Appeals, holding that in this narrow situation, the blood drawing was constitutionally justified. In holding that the testing of the blood was constitutional, the court explained that its holding was a narrow one, stating:

“Our holding is confined to circumstances in which the state has lawfully seized a dog or other animal on probable cause to believe the animal has been neglected or otherwise abused. It is also confined to the general kind of intrusion that occurred in this case—a medically appropriate procedure for diagnosis and treatment of an animal in ill-health.”

Although the Court narrowed its ruling, it also went out of its way to emphasize that the fact that the property was a live animal weighed heavily in its decision, explaining:

"That fact [that the property was a dog] has significance in the context of the legal and social norms for the care and welfare of animals that we have already discussed. A dog is personal property under Oregon law, a status that gives a dog owner rights of dominion and control over the dog. But Oregon law simultaneously limits ownership and possessory rights in ways that it does not for inanimate property. Those limitations, too, are reflections of legal and social norms. Live animals under Oregon law are subject to statutory welfare protections that ensure their basic minimum care, including veterinary treatment. The obligation to provide that minimum care falls on any person who has custody and control of a dog or other animal. A dog owner simply has no cognizable right, in the name of her privacy, to countermand that obligation. That conclusion follows with equal or greater force when, as here, the dog is in the state’s lawful protective custody on probable cause that the dog is suffering injury as a result of neglect, at which point the owner has lost her property rights of dominion and control over the dog."

Defense attorneys take heed: When dealing with search and seizure issues in animal cases, comparing a live animal to a container will no longer suffice.

State v. Newcomb, 359 Or. 756 (2016)

Life Without Parole Sentences for Certain Felony Sex Offenses

ORS 138.222 does not bar direct appellate review of all statutory presumptive sentences. Here, the state sought to prevent appellate review of the defendant’s claim that his sentence of life without parole, the presumptive sentence for defendant’s crime under ORS 137.719(1), was precluded from appellate review under ORS 138.222, which states that “[a]ny sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission” may not be reviewed on direct appeal.

On review, the Oregon Supreme Court holds that ORS 138.222 only applies to bar direct appellate review of presumptive sentences imposed by the grid blocks established by Oregon’s sentencing guidelines. Because the defendant’s sentence was imposed pursuant to a statute, not the guidelines grid block, it was reviewable.

After deciding the threshold question, the Oregon Supreme Court went on to hold that the sentence imposed was constitutional under both Article I, section 16 and the Eighth Amendment. Here, the defendant was sentenced to life in prison without parole under ORS 137.719 when he was convicted of his third felony sex crime. The defendant was convicted and sentenced of felony public indecency after a jogger saw him sitting without his pants on a short distance from a popular jogging path and within 150 feet of a middle school. Previously, the defendant had been convicted of other felony sex crimes, including sex abuse of his eight-year-old daughter, sodomy and sexual abuse of a nine-year old boy and two other convictions of felony public indecency. In addition to his convictions, he also had an extensive history of uncharged sex offenses, many involving children.

The Court, relying on the defendant's extensive criminal history and involvement with crimes again children found no reasons to hold that a life sentence, as applied to this defendant, was disproportionate under Article I, section 16 and the Eighth Amendment. State v. Althouse, 359 Or. 668 (2016)