Why should we be objecting at the time of sentencing, in say a misdemeanor DUII case where the "enhanced bench probation" terms include agreeing to any field sobriety or breath testing? Isn't it better to argue in the later prosecution that the "consent" to those searches was invalid under Machuca I AND the case law you cite here? If I'm wrong I want to know. I'll object to those standard terms (well, AFTER the judge has said how much jail the client is getting), if it will help somehow. Otherwise, illegal stuff happens in the courtroom all the time (WACO requiring represented defendants to appear at arraignment; community court judges taking guilty pleas on violations when only 'no contest' or 'not guilty' is allowed by law now; etc.).
I wonder if the judicial gloss put on this statute in Oregon renders it constitutional. See State v. Gulley, 324 Or 57, 62, 921 P2d 396 (1996) (statute requiring probationers submit to a probation officer’s warrantless search does not authorize a search over probationer’s objection).
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Why should we be objecting at the time of sentencing, in say a misdemeanor DUII case where the "enhanced bench probation" terms include agreeing to any field sobriety or breath testing? Isn't it better to argue in the later prosecution that the "consent" to those searches was invalid under Machuca I AND the case law you cite here? If I'm wrong I want to know. I'll object to those standard terms (well, AFTER the judge has said how much jail the client is getting), if it will help somehow. Otherwise, illegal stuff happens in the courtroom all the time (WACO requiring represented defendants to appear at arraignment; community court judges taking guilty pleas on violations when only 'no contest' or 'not guilty' is allowed by law now; etc.).
I wonder if the judicial gloss put on this statute in Oregon renders it constitutional. See State v. Gulley, 324 Or 57, 62, 921 P2d 396 (1996) (statute requiring probationers submit to a probation officer’s warrantless search does not authorize a search over probationer’s objection).