Did you miss Wednesday's Blakely opinion? Involves Driving While Suspended.

This wikilog article is a draft, it was not published yet.

by: Ryan • August 13, 2014 • no comments

The case is State v. Kinney. The issue was unpreserved and even if the error were plain, it's invited error in this case. Key quote for those of you who are defending a felony DWS:

His argument is as follows: Because the basis of his revocation or suspension is an element of the crime for which he was convicted and he was, therefore, entitled to have a jury determine that element, under Article I, section 11, of the Oregon Constitution.

One related question that came up recently. I was told that felony Driving While Suspended can be a four or a six on the grid, depending on the underlying basis for the DWS. I've also been told that the fact that makes it a six is frequently not alleged in the indictment. (Can something frequently not occur?) If that's true, aside from any Blakely issues, it would violate ORS 135.711 which states:

For any felony committed on or after November 1, 1989, the accusatory instrument shall allege facts sufficient to constitute a crime or a specific subcategory of a crime in the Crime Seriousness Scale established by the rules of the Oregon Criminal Justice Commission.