Oregon Appellate Court, July 28, 2021
by: Rankin Johnson • July 30, 2021 • no comments
(Created page with " <summary hidden> DUII - Breath test procedure FINES, FEES, AND COSTS - Ability to pay UNLAWFUL USE OF A VEHICLE - Knowledge that car is stolen </summary> '''Summarized by R...") |
|||
| (2 intermediate revisions by one user not shown) | |||
| Line 1: | Line 1: | ||
<summary hidden> | <summary hidden> | ||
| − | + | CIVIL COMMITMENT - Record and burden of proof | |
| − | + | SEARCH AND SEIZURE - Refusal to take a breath test | |
| − | + | SENTENCING - Consecutive sentences | |
| + | EVIDENCE - Hearsay and probation-violation hearings | ||
| + | SENTENCING - Restitution | ||
| + | SENTENCING - PSIs | ||
</summary> | </summary> | ||
| Line 15: | Line 18: | ||
[https://link.ocdla.org/soll/A171312 State v. J.D.J.] 313 Or App 526 (July 28, 2021) (Lagesen) (Clackamas County, Gilmartin) | [https://link.ocdla.org/soll/A171312 State v. J.D.J.] 313 Or App 526 (July 28, 2021) (Lagesen) (Clackamas County, Gilmartin) | ||
| − | '''SEARCH AND SEIZURE - Refusal to take | + | '''SEARCH AND SEIZURE - Refusal to take FSTs''' |
| − | Evidence that defendant refused to take | + | Evidence that defendant refused to take FSTs was not harmless. Reversed. |
The state conceded that the evidence was not admissible. | The state conceded that the evidence was not admissible. | ||
| Line 24: | Line 27: | ||
[https://link.ocdla.org/soll/A171778 State v. Ramirez-Carmona] 313 Or App 533 (July 28, 2021) (Shorr) (Washington County, Roberts) | [https://link.ocdla.org/soll/A171778 State v. Ramirez-Carmona] 313 Or App 533 (July 28, 2021) (Shorr) (Washington County, Roberts) | ||
| + | |||
| + | '''SENTENCING - Consecutive sentences''' | ||
| + | |||
| + | DUII and DWR do not support consecutive sentences. Reversed. | ||
| + | |||
| + | [https://link.ocdla.org/soll/A167246 State v. Porter] 313 Or App 565 (July 28, 2021) (Powers) (Linn County, Delsman) | ||
'''EVIDENCE - Hearsay and probation-violation hearings''' | '''EVIDENCE - Hearsay and probation-violation hearings''' | ||
| Line 32: | Line 41: | ||
James, dissenting, would have followed the Ninth Circuit in holding that the balancing test was required even for firmly-rooted exceptions. | James, dissenting, would have followed the Ninth Circuit in holding that the balancing test was required even for firmly-rooted exceptions. | ||
| − | |||
| − | |||
| − | |||
| − | |||
| − | |||
| − | |||
[https://link.ocdla.org/soll/A169801 State v. Martin] 313 Or App 578 (July 28, 2021) (Kamins, James dissenting) (Multnomah County, Russell) | [https://link.ocdla.org/soll/A169801 State v. Martin] 313 Or App 578 (July 28, 2021) (Kamins, James dissenting) (Multnomah County, Russell) | ||
| Line 43: | Line 46: | ||
'''SENTENCING - Restitution''' | '''SENTENCING - Restitution''' | ||
| − | Trial court erred by treating defendant's failure to appear at a restitution hearing as a waiver of the right to restitution, and by imposing restitution in defendant's absence. Reversed. | + | Trial court erred by treating defendant's failure to appear at a restitution hearing as a waiver of the right to a restitution hearing, and by imposing restitution in defendant's absence. Reversed. |
[https://link.ocdla.org/soll/A171863 State v. Phillips] 313 Or App 609 (July 28, 2021) (Per curiam) (Washington County, Butterfield) | [https://link.ocdla.org/soll/A171863 State v. Phillips] 313 Or App 609 (July 28, 2021) (Per curiam) (Washington County, Butterfield) | ||
Latest revision as of 16:28, July 31, 2021
Summarized by Rankin Johnson, OCDLA
CIVIL COMMITMENT - Record and burden of proof
Existing record was insufficient to support civil commitment. Reversed.
As a result of "technical difficulties," no transcript of the hearing was available. Although the parties prepared an "agreed narrative statement," they did not agree on crucial points, and the record on which the parties agreed was not sufficient to support the judgment. The court noted that, if the record deficiency had been to appellant's detriment, the analysis would have changed.
State v. J.D.J. 313 Or App 526 (July 28, 2021) (Lagesen) (Clackamas County, Gilmartin)
SEARCH AND SEIZURE - Refusal to take FSTs
Evidence that defendant refused to take FSTs was not harmless. Reversed.
The state conceded that the evidence was not admissible.
The court also held that the Implied Consent warning, that defendant's refusal to take a breath test could be used against him, did not invalidate his consent to take the test, because the refusal could properly be used in noncriminal proceedings.
State v. Ramirez-Carmona 313 Or App 533 (July 28, 2021) (Shorr) (Washington County, Roberts)
SENTENCING - Consecutive sentences
DUII and DWR do not support consecutive sentences. Reversed.
State v. Porter 313 Or App 565 (July 28, 2021) (Powers) (Linn County, Delsman)
EVIDENCE - Hearsay and probation-violation hearings
Excited utterance was admissible at PV hearing. Affirmed.
The majority explained that, because 'excited utterance' is a firmly-rooted hearsay exception, the standard balancing test for admitting hearsay at a probation-violation hearing was unnecessary.
James, dissenting, would have followed the Ninth Circuit in holding that the balancing test was required even for firmly-rooted exceptions.
State v. Martin 313 Or App 578 (July 28, 2021) (Kamins, James dissenting) (Multnomah County, Russell)
SENTENCING - Restitution
Trial court erred by treating defendant's failure to appear at a restitution hearing as a waiver of the right to a restitution hearing, and by imposing restitution in defendant's absence. Reversed.
State v. Phillips 313 Or App 609 (July 28, 2021) (Per curiam) (Washington County, Butterfield)
SENTENCING - PSI
PSI is not required when conviction carries mandatory minimum sentence and no one seeks a departure. Affirmed.
State v. Walker 313 Or App 637 (July 28, 2021) (Per curiam) (Lake County, Vandenberg)
