Oregon Appellate Ct - May 11th, 2016
by: Aalvarez • May 12, 2016 • no comments
Increased Suspension Under ORS 813.430(2)(b)(C) – What Qualifies As An Out of State Conviction
An increased suspension under ORS 813.430(2)(b)(C), the statute that allows a greater suspension for a DUII when a person has a prior driving conviction in another jurisdiction, is only authorized when the person’s out of state conviction was a driving offense that includes as an element an unlawful BAC.
Here, the defendant failed a breath test in Oregon and the DMV suspended his license for a year, as opposed to 90 days, on the grounds that he had a reckless driving conviction from Illinois, and at the time of the offense, had a BAC over the legal limit. The defendant appealed and the circuit court reversed the suspension, finding that a defendant is only qualified for an enhanced suspension if the out of state driving offense had as an element an unlawful BAC level, regardless of the defendant’s actual BAC at the time of the offense. The Court of Appeals affirms the circuit court’s ruling, finding that the legislature, when it modified the suspension laws, intended to narrow the scope of the enhanced suspension provisions. Given the legislative history and the plain text of the statute, an increased suspension is only allowed when an unlawful BAC is an actual element of the out of state conviction. Martini v. DMV, 278 Or. App. 172 (2016)
Appellate Procedure – Issue Not Preserved by Mere Citation to Constitution
In a delinquency proceeding, the juvenile did not properly preserve his constitutional “void for vagueness” argument regarding the term “curfew” for appeal because at the trial court level, he did “not assert a vagueness argument, much less a constitutional one,” by merely citing to the federal constitution.State v. J.G.G., 278 Or. App. 184 (2016)
Criminal Mistreatment – A Dirty Diaper Is Not “Withholding Necessary and Adequate Physical Care”
In a prosecution for first-degree criminal mistreatment, a person only withholds necessary and adequate physical care when the person withholds care that is “absolutely required to meet a dependent’s basic safety and survival needs.”
In this case, the state failed to prove that the defendant withheld necessary care from his 5-year-old autistic son by failing to change his son’s diaper in a timely manner, which caused the child to have red and inflamed skin. Although obviously uncomfortable to the child, the state failed to put on sufficient evidence that the diaper caused or would cause serious physical pain or injury and also failed to put on evidence that the dirty diaper amounted to a failure to adequately maintain his son’s hygiene so as to protect a risk of future bodily harm. State v. James Hickey, 278 Or. App. 212 (2016)
MJOA – Testimony of an Accomplice Without Corroboration
The trial court erred in failing to grant the defendant’s MJOA on charges of Solicitation to Commit an Assault, Conspiracy to Commit Assault, and Conspiracy to Commit Robbery where the only evidence of the charges came from the testimony of the accomplice that the defendant supposedly hired to beat up and rob a man who the defendant believed had impregnated his daughter. Because there was no evidence to corroborate the accomplice’s testimony, the defendant’s MJOA as to those counts should have been granted. State v. Habibullah, 278 Or. App 239 (2016)
