Oregon Appellate Ct - Oct. 21, 2015
by: Abassos, Cmaloney and Alisa Larson-Xu • October 21, 2015 • no comments
Exigency - Urinalysis for Drug DUII Constitutionally Justified When Warrant Would Not Be Significantly Faster Than What Officer Actually Did
Under the Oregon Constitution, the exigency exception to the warrant requirement will justify the warrantless collection of defendant’s urine in DUII investigation if (1) there is probable cause to believe that a controlled substance other than alcohol would be present in defendant’s urine, (2) at least one relevant controlled substance dissipates rapidly in urine after it is consumed, and (3) a warrant cannot be obtained significantly faster than the actual process otherwise used. Here, after completing 11 of the 12 steps of the DRE protocol the officer concluded that defendant was under the influence of a central nervous system stimulant. At trial, the state offered evidence that cocaine, a central nervous system stimulant, has a short detection time and may be eliminated from the urine within several hours of consumption. Finally, the officer collected the urine sample within two and a half hours of the arrest and was conducting the DRE evaluation at the police station during most of that time. It was estimated that it would have taken about two hours to obtain a warrant. Thus, even if the officer could have initiated the warrant process immediately upon arrival at the station, the potential half-hour difference was not significantly faster than the two and half hour process that actually occurred. Accordingly, the state established a constitutionally sufficient exigency for purposes of Article I, section 9, of the Oregon Constitution. State v Raymond, 274 Or App 409 (2015).
Dependency - TPR – A Parent's Rights May Not Be Terminated for Failing to Appear Where There Was Insufficient Notice of Hearing
ORS 419B.819(7) (permitting the court to terminate a parent’s rights if the parent fails to appear for a hearing related to a termination petition) does not apply if either there was no notice or the parent was allowed to appear through counsel. Here, after attending two days of termination proceedings, mother was assaulted by her husband. Due to health concerns, the court halted the proceedings and scheduled a status check on mother’s health 11 days later. At that status check, only mother’s counsel appeared. The court scheduled the termination hearing for two days after the status check. DHS did not follow the proper procedures to notify mother of this hearing. Mother did not show up and the court terminated mother’s rights, citing “two” failures to appear. Because (1) the trial court lacked ability to default mother at the status check because she was statutorily allowed to appear through counsel; and (2) mother had insufficient notice for the termination proceeding two days later, it was plain error to terminate mother’s parental rights. [http://www.publications.ojd.state.or.us/docs/A158694.pdf Dept. of Human Services v. A. W. (A158694) 274 Or App 493 (2015).
Dependency Jurisdiction – A Wardship Can’t Continue If the Factual Bases for Jurisdiction Have Ceased to Exist
The proponents of continuing a wardship have the burden of showing that the factual basis for the juvenile court’s jurisdiction “persist to the degree that they pose a current threat of serious loss or injury that is reasonably likely to be realized.” Here, the juvenile court took jurisdiction when the ward was six years old and later appointed his aunt and uncle as the legal guardians. When the ward was 19 years old there was a combined guardianship review and jurisdictional hearing. The juvenile court denied the ward’s motion to dismiss jurisdiction, terminate wardship, and vacate the guardianship. The juvenile court erred in denying the motion because (1) the ward’s circumstances (disabilities and poverty) were not sufficient to support the juvenile court’s continued jurisdiction and (2) the guardians did not satisfy their burden of establishing, at the time of the hearing, that the factual bases for the juvenile court’s jurisdiction continued to exist. Reversed and remanded with instructions to terminate the wardship and vacate the guardianship. L. D. v. T. J. T., 274 Or App 430 (2015).
Preservation - PCR – Dismissal For Failure to Prosecute
At petitioner’s post-conviction review hearings, petitioner appeared by telephone but would hang up when the judge ruled against defendant. The post-conviction court dismissed petitioner’s complaint for failure to prosecute, citing defendant’s rudeness and disrespect to the court. While petitioner’s attorney briefly referenced the idea that the court may not have the power to dismiss for failure to prosecute, the argument was undeveloped. Furthermore, the attorney failed to mention the argument in petitioner’s motion for reconsideration (which was written on other grounds). Accordingly, the argument was unpreserved and the court declines to correct any error from the post-conviction court (“We have consistently declined to correct error when a party could have easily alerted the trial court to the alleged error but did not do so.”). Gonzalez-Aguilera v. Premo 274 Or App 484 (2015).
