Oregon Court of Appeals 05-19-10
by: Abassos • May 18, 2010 • no comments
Read the full article for details about the following new cases:
- Speedy Trial - When Assent turns into Consent
- PCR - Merger
- Stop - Reasonable Suspicion
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Speedy Trial - When Assent turns into Consent===
Defense counsel consented to a setover by saying it was not only "acceptable" but that the defendant "would not be prejudiced in any way." Because of defense counsel's overeager assent to the setover, the total amount of delay attributable to the state went from an unreasonable 16 months to a reasonable 13 months. Speedy trial dismissal reversed. The trial practice key for defense attorneys is to acknowledge new dates and then stop talking. In this case, it was defense counsel's unnecessary extra statement about the utter lack of prejudice to his client that turned assent into consent. State v. Doak
PCR - Merger
In order to be a Constitutionally adequate attorney you must move to merge, after trial, separate counts that are actually alternative theories of the same offense. In this case, there were two counts of kidnapping where there was one actual kidnapping with two alternative theories: (1) that defendant did it with the intent to cause physical injury and (2) that defendant did it with the intent to terrorize. One kidnapping with two theories is still one kidnapping. Which means they merge. As do alternative theories in many, many other situations. Ross v. Hill
Reasonable Suspicion - Stop
An officer has reasonable suspicion for a DUII when he sees someone speed into a parking lot, stop suddenly, slump over their wheel, go to sleep in the back seat and, when awoken, smell of alcohol, have bloodshot, watery eyes and slurred, incoherent speech. At that point, the officer may ask the driver to step out of the vehicle. License suspension affirmed. Oh, and by the way, the community caretaking exception isn't an exception to either the State or Federal Constitution. Sivik v. DMV
