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Severing DUII and DWS (from separate incidents)

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

by: Aaron443 • April 13, 2012 • no comments

I began working on this case as a certified law student and it was the first motion on which I put my own bar number. Our client picked up a Driving While Suspended charge while he was on release from his arrest for DUI. The DA sought to join the DWS with the DUI for trial and we opposed. Under the current case law, State v. Meyer, 109 Or App 598 (1991) (multiple charges for DUI and DWS over multiple years are acts of the same or similar character), is directly on point and dispositive in favor of the state. However, the federal case law Meyer relies on has been overturned. I use State v. Johnson, 199 Or App 305 (2005) to argue that Oregon's law should reflect 9th Circuit law on this issue. Mercifully, US v. Jahara, 474 F3d 565 (9th Cir 2007) overrules the federal law behind the current Oregon rule and establishes a new, far more flexible standard.

The state could try to amend the information to allege a common nexus of fact between a DUI and the DWS, i.e. that the DWS requires proof of a suspension that resulted from a breath test failure or refusal during the DUI investigation. The state chose not to amend in that way here so we never got there, however, I would argue that the specific facts giving rise to the suspension are irrelevant because it is only the result that matters. The state must show 1) that there was a DMV suspension, and 2) why, according to the DMV, there was a suspension. Because those facts can only be attested to by the DMV, and they are not relevant to proving the DUI, there are still no relevant crossover facts or witnesses.

The memo is below the break (ie click "read more")