The DCS-SQ-CDO Demurrer You Should File (even though it won't win)
Here's the demurrer. It applies when CDO factors and the SQ factor are contained within the same count of DCS/MCS or PCS. Winning would be dependent on a finding that sentence enhancement factors such as "the defendant was in possession of more than 150 grams of marijuana" are elements - and not mere sentence enhancements - of enhanced versions of delivery, manufacturing or possession. Under current Oregon Court of Appeals case law, they are not elements. Therefore, the trial judge is required by her oath to follow the law to deny this demurrer. Moreover, unless something changes, I wouldn't expect an appellate attorney to even bother briefing it. See the demurrer itself for the full and complete argument.
But as I've stated in a footnote, the Oregon Supreme Court - in a case called St v. Reinke - is likely to address whether those types of sentence-enhancers are elements. Well, let me be precise. The OSC has addressed whether offense-specific enhancements are elements under Article I, section 11, of the Oregon Constitution. And the OSC has concluded: usually. However, none of the OSC analysis ever seems to make it into COA opinions on this issue.
Reinke is set to be argued on May 3, 2012. If you file this demurrer Monday, lose, go to trial, lose, and file the notice of appeal in the next month or two, there's a good chance the OSC will issue an opinion before the appellate attorney even has to decide whether to brief it. And if Mr. Reinke prevails, then there's a good chance not only that your client will win on appeal, but after a successful appeal, it would be too late for the state to reindict. (This is a demurrer after all; reversal on these grounds means dismissal of the indictment.)
I understand why this is hard for some lawyers. Filing a motion just to tell the court they are obligated to deny it. If this is the only issue you've got at trial, then you've got nothing. But sometimes nothing can be a real cool hand.