Oregon Appellate Ct - June 17, 2015
by: Abassos, April Yates, Tyler Williams and Sean McGuire • June 17, 2015 • no comments
DUII-Agreeing to Take a Breath Test After Being Read the Implied Consent Warnings Counts as Voluntary Consent, Absent an Oppressive Atmosphere.
Agreeing to a warrantless breath test after being read the implied consent warnings indicates the voluntariness of consent unless there are some signs of police exploitation or threats. The court of appeals, reviewing the trial court’s decision to suppress defendant’s breath test evidence, finds that, “[a]lthough defendant was under a DUII investigation and her consent to the breath test was obtained at the police department, there is no evidence that physical force was used or threatened, that weapons were displayed, or that the atmosphere surrounding defendant’s consent was antagonistic or oppressive.” The consent was therefore voluntary, and “Article I, section 9, does not require suppression of the breath test evidence.” Reversed and remanded. State v. Lopez-Lopez 271 Or App 817 (2015)
Stop and Seizure—An Officer’s Behavior Is a Show of Authority if the Content and Tone of a Request Makes it Clear the Officer Intends to Restrict the Defendant’s Movement.
A trooper’s grabbing hold of defendant’s boat and requesting to see defendant’s halibut tags was a show of authority, given the trooper’s tone and the content of the request. While social norms allow for conversation and grabbing other’s boats while fishing, only law enforcement officers ask to inspect halibut tags. It was therefore clear that the trooper intended to restrict the defendant’s movement. Additionally, even if the officers had reason to stop the defendant for failing to release a protected species of fish unharmed, the unrelated request to inspect the defendant’s halibut tags was not made in the lull of the initial stop, and was therefore an unlawful extension. Affirmed.
State v. Paskar 271 Or App 826
Sex Offenses – Public Indecency Felonies are Not Enough for a Life Sentence
Analyzing ORS 137.719(1), the court ruled that five public indecency episodes did not establish “the kind of criminal history that can constitutionally justify incarcerating a person with no chance of release.” Reaching this decision, the court highlighted the fact that the defendant’s extensive criminal history did not include any violent, sexually charged conduct and that repeatedly committing the more harmful crime of sexual groping would result in a lesser penalty.
State v. Davidson, 271 Or App 719 (2015).
Attempted First-Degree Robbery – A Substantial Step Doesn’t Require Possession of a Deadly Weapon
A defendant can take the substantial step required for attempted first-degree robbery without being in possession of the deadly weapon he or she intends to use during the crime. Rather, it is enough that the defendant intends to possess a deadly weapon and takes measures to secure future possession. Here, defendant’s argument to merge an unlawful use of a weapon charge with attempted first-degree robbery fails because, unlike attempted first-degree robbery, UUW requires possession of a deadly weapon.
State v. Rhee, 271 Or App 746 (2015).
