Oregon Supreme Ct, Dec. 12, 2013
by: Abassos • December 12, 2013 • no comments
Burglary - Jury Concurrence is Not Required for Entering vs Remaining
A Boots instruction for jury concurrence is not required for the element, in Burglary, 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. State v Moore, 354 Or ___ (2013)
DUII - Consent to Blood/Urine Test is Not Involuntary Merely Because of Statutory Implied Consent Warnings.
A police officer investigating a DUII does not unconstitutionally coerce a defendant's consent to a blood or urine test by reading him the statutory implied consent warnings. Step 1: Not all coercion inducing consent to a search is constitutionally impermissible. If the officers threaten only to do what the law permits them to do, the coercion that the threat may produce is not, ordinarily, constitutionally objectionable. Here, "it is difficult to see why the disclosure of accurate information about a particular penalty that may be imposed - if it is permissible for the state to impose that penalty - could be unconstitutionally coercive." Step 2: While ORS 813.310 is arguably unconstitutional in part (because it says that a refusal will be admissible when it may be inadmissible), the specific warning given in this case, from ORS 813.130(2)(a), only told defendant that a refusal "may be offered against you". The warning given is "nuanced", referring only to the possibility that the evidence might be offered. More importantly, it does not refer to a criminal proceeding. Since there are two civil contexts in which a refusal may be offered, the advice given is simply an accurate statement of the lawful consequences of refusing a blood or breath test. J. Kistler concurs to push back on the "precedential value of a quote from a prior case, on which the majority relies, that "no lawful sanction imposed for refusing to consent can ever be unconstitutionally coercive." The statement is both much less clear than the majority seems to say and problematic on its own merits. State v Pipkin, 354 Or ___ (2013)
