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Oregon Appellate Court, July 28, 2021

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by: Rankin Johnson • July 30, 2021 • no comments


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)


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)