Oregon Appellate Court - July 24, 2013
by: Alarson, Sonja Good Stefani, Zara Lukens and Abassos • July 17, 2013 • no comments
Retrograde Extrapolation - Foundational Showing of Scientific Validity Necessary
When the state offers an expert on blood alcohol dissipation and retrograde extrapolation, it must first make a foundational showing that the expert’s methods were scientifically valid pursuant to Brown/O’Key. Here, the expert had a background in forensic science and her knowledge of blood alcohol chemistry was based on the literature in the field. Because she was offering a scientific opinion, the foundational showing needed to be made. State v. Whitmore, 257 Or App __ (July 24, 2013).
Victim’s Rights - Restitution May Be Retroactively Imposed
The 90 day timeline for restitution in ORS 137.106 does not limit the time in which a trial court may resentence a defendant after a violation of the victim’s constitutional rights. State v. Wagoner, 257 Or App __ (July 23, 2013). See State v. Thompson, 257 Or App ___ (July, 2013).
Multiple Probation Violation Sentences for a Single Violation Must Be Concurrent
When a defendant on probation for multiple offenses commits a single probation violation the court must impose any incarceration sanctions concurrently. (OAR 213-012-0040(2)). State v. Lewis, 257 Or App ___ (July, 2013) and State v. Brand, 257 Or App ___ (July, 2013).
Speedy Trial – 10 Month “Routine Scheduling” Delay is Reasonable
10 months of delay due to scheduling conflicts is not an unreasonable delay. Though 11 months exceeds the timeline for bringing a simple one-count misdemeanor case to trial, there is no speedy trial issue if the state can establish that the delay was reasonable. Here, the state established that of the 11 months, only 34 days were unjustified; the rest was due to routine scheduling conflicts. State v. Cupp, 257 Or App ___ (July, 2013).
“Presumptive Evidence” Means “Evidence”, Not a Conclusion of Law
When a statute uses the word “presumptive evidence”, it does not mean a presumption or a conclusion of law, but rather “evidence”. Like all evidence, the factfinder is free to reject or accept the inference created from the presumptive evidence. Here, the trial court improperly applied the obliteration of a firearm statute (ORS 166.450 states, “Possession of any such firearm is presumptive evidence that the possessor altered, removed, or obliterated the identification number”) because it presumed that by possessing the firearm, the intent and unlawful purpose elements of the statute were satisfied. State v. Alvarado, 257 Or App ___ (July, 2013).
Reasonable Suspicion – Drug Possession
Officers do not have reasonable suspicion of possession of drugs where: • The defendant was driving a car owned by someone else; • The defendant was carrying a cell phone and a pager; and • The car contained multiple air fresheners and two bottles of cologne.
Because there was no reasonable suspicion, the extension of the initial traffic stop was unlawful. State v. Alvarado, 257 Or App ___ (July, 2013).
