Oregon Appellate Court - January 9, 2013

by: Jwestover and Abassos • January 9, 2013 • no comments

Consent is Involuntary When Induced by a False Promise of Immunity

Defendant’s consent to search a trailer was involuntary when the only reason he gave his consent was that he reasonably believed the officer was granting him immunity. It didn’t matter that the officer did not have the power to confer such immunity. Nor did it matter that what the officer wrote down for defendant to sign was not a promise of immunity. Defendant said he would not consent unless he had it in writing that there would be no criminal charges. In response, the officer modified a consent document that appeared to stipulate that defendant “is not responsible for the property stored inside the RV trailer”. Thus, defendant reasonably believed he was being promised immunity and relied on that promise in giving his consent. The relied-upon promise was false. Thus, defendant’s autonomous choice was subverted and his consent was involuntary. Reversed. State v Marshall

An Order Denying DNA Testing is Not Appealable

An order denying a post-conviction request for DNA testing, under ORS 136.890, is not appealable. ORS 136.890 sets out a process for convicted defendants to acquire DNA testing when they’re either incarcerated for a person felony or were convicted of a murder or sex crime. Among other things, the defendant must show that the DNA results, if exculpatory, would establish the defendant’s actual innocence. However, the statute does not set out a right to an appeal of the judge’s determination. Moreover, the statutes for PCR appeals and criminal appeals are facially inapplicable. And statute for civil appeals isn't applicable because the DNA statute is so intertwined with the merits of the underlying criminal case, including the actual innocence of the client and the appointment of the original criminal attorney. Thus, there is no statute conferring appellate rights and, therefore, no right to appeal. State v Johnson

Statutory Speedy Trial Rights Start with Formal Charges by the District Attorney

The period of time with which the speedy trial statute, ORS 135.747, is concerned, begins at the point where defendant is “charged with a crime”. Here, defendant was cited by the police but the case was “no-complainted” in the sense that the DA did not file charges. Two years later, the DA filed an information. The court finds that “charged with a crime” requires the filing of an accusatory instrument. A citation is not enough. State v Murr

DUII Diversion – Ineligibility for Prior DUII – Ex Post Facto

It is not an ex post facto violation that the prior-DUII exclusion for DUII diversion was changed from ten to fifteen years. Here, defendant had two DUIIs from 12 years prior. Under the old rule he would have qualified. But under the new rule, diversion was not an option. It’s not an ex post facto violation under the state constitution because (1) diversion is not a defense and (2) the change from 10 to 15 years does not increase the punishment for the offense of DUII. The same analysis holds under the federal two part “intent-effects” test. State v Carroll

Dependency - Public Indecency + Failure to Complete Treatment Does Not Equal a Risk of Harm

Without more, multiple convictions for public indecency, combined with a failure to complete sex offender treatment, do not constitute a risk of harm sufficient to support jurisdiction. Nor did this additional allegation enhance the risk of harm established in the original allegations regarding substance abuse and residential instability. DHS v GJR

Per Curiams

• Ag murder motion in arrest of judgment reversed in light of State v Dasa. State v Tate

• The trial court errs in imposing restitution in the absence of any information that the criminal conduct caused the victim's economic loss. State v Quintero.