Oregon Supreme Ct, Dec. 12, 2013
by: Abassos • December 12, 2013 • no comments
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| + | DUII - Consent to Blood/ Breath Test is Not Involuntary Merely Because of Statutory Implied Consent Warnings. | ||
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A ''Boots'' instruction for jury concurrence is not required for the element of "entering or remaining unlawfully". Article I, Section 11 does not require jury concurrence on alternative means of proving a single element. A concurrence instruction is required where the legislature intended each of the alternatives to be a separate statutory element. Here, "entering unlawfully" and "remaining unlawfully" are "interchangeable and often overlapping ways of proving the same element. Moreover, while there are constitutional limits on the legislature's ability to identify alternative means of proving the same element, "entering or remaining" is neither "so repugnant that they could not have been joined in a single count" nor "the sort of disparate unrelated acts" that trigger Article I, Section 11. | A ''Boots'' instruction for jury concurrence is not required for the element of "entering or remaining unlawfully". Article I, Section 11 does not require jury concurrence on alternative means of proving a single element. A concurrence instruction is required where the legislature intended each of the alternatives to be a separate statutory element. Here, "entering unlawfully" and "remaining unlawfully" are "interchangeable and often overlapping ways of proving the same element. Moreover, while there are constitutional limits on the legislature's ability to identify alternative means of proving the same element, "entering or remaining" is neither "so repugnant that they could not have been joined in a single count" nor "the sort of disparate unrelated acts" that trigger Article I, Section 11. | ||
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| + | '''DUII - Consent to Blood/ Breath Test is Not Involuntary Merely Because of Statutory Implied Consent Warnings.''' | ||
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| + | A police officer does not unconstitutionally coerce a defendant's consent to a test for blood or urine by reading him the statutory implied consent warnings. | ||
Revision as of 16:58, December 13, 2013
Burglary - Jury Concurrence is Not Required for Entering vs Remaining
A Boots instruction for jury concurrence is not required for the element of "entering or remaining unlawfully". Article I, Section 11 does not require jury concurrence on alternative means of proving a single element. A concurrence instruction is required where the legislature intended each of the alternatives to be a separate statutory element. Here, "entering unlawfully" and "remaining unlawfully" are "interchangeable and often overlapping ways of proving the same element. Moreover, while there are constitutional limits on the legislature's ability to identify alternative means of proving the same element, "entering or remaining" is neither "so repugnant that they could not have been joined in a single count" nor "the sort of disparate unrelated acts" that trigger Article I, Section 11.
DUII - Consent to Blood/ Breath Test is Not Involuntary Merely Because of Statutory Implied Consent Warnings.
A police officer does not unconstitutionally coerce a defendant's consent to a test for blood or urine by reading him the statutory implied consent warnings.
