Oregon Appellate Ct - Jan. 27, 2016

Revision as of 16:13, February 1, 2016

Assault IV - "Substantial Pain" Can Be Inferred From Observed Injuries and Circumstantial Evidence

The state's evidence was sufficient to pass muster at MJOA on an Assault IV, despite the absence of the victim or any witness who was able to describe the effect of the victim's injuries:

The record includes photographs of the victim’s injuries and corroborating testimony from witnesses that the injuries looked like they were recently inflicted. Those photographs show bright red scratches and facial swelling that a rational juror could conclude were consistent with the victim’s statements to the 9-1-1 dispatcher that defendant “push[ed]” her in the car and “wouldn’t let [her] go.” A rational juror could infer from the evidence, including the 9-1-1 call, the descriptions of the victim’s condition and demeanor by the two witnesses, and the photographs of the victim’s injuries, that the victim physically struggled against defendant and that he scratched and punched her face, or that her face collided with a hard surface in the car during the struggle.

Based on the injuries and the contextual information, a reasonable juror could infer that the injuries involved considerable pain that was more than fleeting. State v Guzman, 276 Or App 208 (2016).

Breath Test - Implied Consent Can Break the Chain Between an Article I, Sec. 12 Violation and Consent to a Breath Test

Defendant's consent to take a breath test was sufficiently attenuated from the officer's post-invocation questioning where:

• The violation itself was not flagrant. The officer asked the standard DUII interview questions as part of the breath test protocol. And the officer did not press defendant when he chose not to answer a question. The information given in response to the questioning was properly suppressed. But the violation was less flagrant than other similar cases.
• A thorough implied consent process broke the causal chain
• The consent was prompted by legally obtained evidence, not the illegally obtained statements

Thus, despite the fact that defendant remained in custody, "considering all the circumstances" defendant's decision to consent to the breath test was not a product of the prior Article I, Sec. 12 violation.

State v Swan, 276 Or App 192 (2016).