Blog:Main/Significant Commercial Drug Offense Opinion - Revision history

Ryan@ryanscottlaw.com at 18:35, November 13, 2016

2016-11-13T18:35:21Z

Ryan@ryanscottlaw.com at 02:27, September 15, 2016

2016-09-15T02:27:10Z

Ryan@ryanscottlaw.com at 22:10, September 9, 2016

2016-09-09T22:10:40Z

Ryan@ryanscottlaw.com at 22:10, September 9, 2016

2016-09-09T22:10:18Z

Ryan@ryanscottlaw.com: Created page with "We don't get very opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've..."

2016-09-09T22:09:56Z

Created page with "We don't get very opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've..."

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We don't get very opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.

Anyway, this week's opinion in [http://www.publications.ojd.state.or.us/docs/A154629.pdf ''State v. Rankins''] is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.

The Court held that phone records of drug deals -- i.e., texts offering to buy or sell -- are not the "drug records" the legislature had in mind when it wrote that aggravating factor into the law 25 years ago.

The opinion was written by Judge Duncan, which usually means two things: it is a thoughtful and thorough opinion, and an awfully long time lapsed between argument and opinion. But it's hard to complain about the latter when you get an opinion that can be described as the former.

Here's a key paragraph:

:The legislature’s use of the term “commercial drug offense” indicates what types of offenses those more serious offenses are. “Commercial” is defined as “of, in, or relating to commerce,” and the applicable definition of “commerce” is “the exchange or buying and selling of commodities esp[ecially] on a large scale and involving transportation
from place to place—compare TRADE, TRAFFIC.” Webster’s at 456. Because the listed factors, including the possession
of drug transaction records, were intended to help identify commercial drug offenses, it is likely that the legislature intended the “records” to be of the type that would indicate involvement in “commerce”—that is, records maintained in furtherance of “the exchange or buying and selling” of drugs, especially on a large scale. Id.

I think this paragraph points the way to other challenges. for example, what if you prove that the $310 in your client's pocket is from non-drug-related activity? Give the purpose of drug offense factors, shouldn't there be a requirement that there is some commercial drug dealing explanation for the money? Or is it enough that defendant is poor, has no checking account, pays his rent in cash, in order for him to fact prison when anyone with a checking account would get probation?

Instead of just sentencing mitigation, maybe this is a jury instruction/mjoa argument.

Speaking of which, an expensive dinner is on me, if you can solidly preserve and send up for an appeal the argument that the consideration in the factor of "for consideration" only refers to actual consideration [https://libraryofdefense.ocdla.org/Blog:Main/Challenging_%22For_Consideration%22_in_Boyd_Delivery_Cases and not hypothetical consideration.]
{{wl-publish: 2016-09-09 15:09:56 -0700 | Ryan@ryanscottlaw.com:Ryan Scott }}

← Older revision		Revision as of 18:35, November 13, 2016
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−	<summary>We don't get very opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.	+	<summary>We don't get very many opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8. Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.

	Anyway, this week's opinion in [http://www.publications.ojd.state.or.us/docs/A154629.pdf ''State v. Rankins''] is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.</summary>		Anyway, this week's opinion in [http://www.publications.ojd.state.or.us/docs/A154629.pdf ''State v. Rankins''] is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.</summary>

@@ Line 1: / Line 1: @@
-We don't get very opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8.  Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.
+<summary>We don't get very opinions on the Commercial Drug Offense factors which can aggravated a simply delivery or possession to a level 8.  Part of the reason is that even if you've got a good challenge, and you preserve it, it might be mooted out by the simple fact that -- even if you were to win -- the state would have more than three factors to rely on.
-Anyway, this week's opinion in [http://www.publications.ojd.state.or.us/docs/A154629.pdf ''State v. Rankins''] is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.
+Anyway, this week's opinion in [http://www.publications.ojd.state.or.us/docs/A154629.pdf ''State v. Rankins''] is wonderful, and it might provide a basis for new arguments and renewed attention to the factors.</summary>
 The Court held that phone records of drug deals -- i.e., texts offering to buy or sell -- are not the "drug records" the legislature had in mind when it wrote that aggravating factor into the law 25 years ago.

@@ Line 11: / Line 11: @@
 :The legislature’s use of the term “commercial drug offense” indicates what types of offenses those more serious offenses are. “Commercial” is defined as “of, in, or relating to  commerce,”  and  the  applicable  definition  of  “commerce”  is  “the exchange  or  buying  and  selling  of  commodities esp[ecially]  on  a  large  scale  and  involving  transportation from place to place—compare TRADE, TRAFFIC.”   Webster’s at 456. Because the listed factors, including the possession of drug transaction records, were intended to help identify commercial  drug  offenses,  it  is  likely  that  the  legislature  intended the “records” to be of the type that would indicate involvement  in  “commerce”—that  is,  records  maintained  in  furtherance  of  “the  exchange  or  buying  and  selling”  of  drugs, especially on a large scale. Id.
-I think this paragraph points the way to other challenges.  for example, what if you prove that the $310 in your client's pocket is from non-drug-related activity?  Give the purpose of drug offense factors, shouldn't there be a requirement that there is some commercial drug dealing explanation for the money?    Or is it enough that defendant is poor, has no checking account, pays his rent in cash, in order for him to fact prison when anyone with a checking account would get probation?
+I think this paragraph points the way to other challenges.  for example, what if you prove that the $310 in your client's pocket is from non-drug-related activity?  Given the purpose of drug offense factors, shouldn't there be a requirement that there is some commercial drug dealing explanation for the money?    Or is it enough that defendant is poor, has no checking account, pays his rent in cash, in order for him to fact prison when anyone with a checking account would get probation?
 Instead of just sentencing mitigation, maybe this is a jury instruction/mjoa argument.