How Many Jurors Are Needed To Acquit of the Gun Minimum or CDO Factors?
This is the first of two posts. This one simply includes a special jury instruction that you will want to ask for when the state has alleged CDO or substantial quantities in a drug case or the gun minimum.
The logic is as follows.
ORS 136.760 defines an "enhancement fact" as follows:
(2) "Enhancement fact" means a fact that is constitutionally required to be found by a jury in order to increase the sentence that may be imposed upon conviction of a crime.
That definition was written very broadly. So broadly, in fact, that it not only captures traditional Blakely factors such as "harm greater than typical" or "on supervision at the time of the offense," but CDO factors or the gun minimum.
The commercial drug offense (CDO) factors and substantial quantity (SQ) factors easily satisfy that definition. For example, the allegation that the "delivery" involved more than 50 grams of a mixture of a substance containing a detectable amount of heroin increases the presumptive sentence substantially. It raises what might otherwise be a 4 or 6 or 8 on the sentencing grid to a level 9. The fact of more than 100 grams of that same mixture increases the crime seriousness to a level 10.
Further, under the 6th Amendment to the United States Constitution, as interpreted by Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004) and its progeny, those types of enhancement facts must be proven to a jury.
We may not automatically think of CDO and SQ factors as Blakely factors, since both their existence and the requirement that they must be proven to a jury pre-date Blakely. Nevertheless, they easily satisfy the definition on "enhancement fact" in ORS 136.760(2).
The gun minimum must be proven to the jury under the Oregon Constitution. State v. Wedge.
Because the CDO and SQ factors similarly satisfy the definition of enhancement fact, the enhancement fact statutes apply to them as well. That means that if eight or nine jurors - or any number less than ten - do not find the enhancement fact proven, then the fact is not proven. ORS 136.785(3)(b). In other words, there can be no hung jury on an enhancement fact, including the gun minimum or CDO factors.
This may not excite you too much. After all, the fight is usually over the underlying offense, not the CDO factors. But the broad definition of "enhancement fact" has consequences beyond just the number of jurors needed to acquit. For one of the most significant consequences, see the next post after this one. But note that you have to be a member of OCDLA to see it.