Oregon Appellate Court 5-31-2012

by: Sduclos • May 31, 2012 • no comments

Search and Seizure - Warrantless Urine Samples Permitted Based on PC that Controlled Substance will be in Suspect's Urine.

Once police have probable cause to believe that evidence of a controlled substance will be in a suspect's urine, exigent circumstances exist to justify obtaining a urine sample without a warrant. The state need only establish the evanescent nature of the controlled substance in defendant's urine. Here, the court found it is unreasonable to expect police to determine the exact identity of the substance in order to know whether exigent circumstances exist. State v. McMullen.

Opinion Testimony - PO Opinion in DUII Not Scientific

DRE Officer's testimony that defendant was under the influence of a narcotic analgesic was admissible as nonscientific expert opinion in DUII case. Where the DRE officer testified as to admissible portions of a DRE procedure, his ultimate opinion was not did not have the "imprimatur of science" because the officer did not rely on the vocabulary of science or suggest that his opinion was based on the scientific method. State v. Rambo.

Cross Examination - Scope of Re-Direct Same as Cross

The scope of redirect examination is the same as the scope of cross: redirect may extend to (1) the facts elicited on cross-examination (2) matters that tend to limit, explain, or qualify them, or (3) matters that tend to rebut or modify any inference resulting from cross-examination. Here, defense counsel was prevented from asking expert on re-direct regarding defendant's cognitive function as compared to his social function. The COA held that the questions were directly connected to cross-examination and within the scope of redirect, and the error was prejudicial because defendant's social ability to withstand police questioning was central to the defense theory of the case. State v. Wirfs.

Discovery of Breathalizer Docs Not Material

Defendant failed to show that additional discovery of Intoxilyzer source codes, diagrams, sales contracts, and Oregon State Police studies were "favorable and material" to the case. Defendant did not argue that evidence was exculpatory, but requested material to determine its value to his case. Neither could defendant request indigent defense funds to pay an expert to testify that the Intoxilyzer 8000 is unreliable under ORS 135.055 when the defendant only showed that there was a possibility that the testimony would be useful and only if the expert had access to the various government materials requested. State v. West

Free Speech Challenge of Violation of SPO Must Attack Underlying SPO

Because ORS 163.750 (violation of a stalking protective order) only applies to speech prohibited by the SPO, a defendant, who is challenging a conviction under ORS 163.750 on free speech grounds, must first successfully attack the underlying stalking protective order." Because defendant had not attacked the SPO, his motion for judgment of acquittal was properly denied. State v. Nguyen

Per Curiam

• Dept. of Human Servs. v. L.G. - The conditions of a dispositional judgment must be rationally related to the factual basis for jurisdiction. Here random drug testing was completely unrelated to the basis for jurisdiction.