1 / 89

Oregon DUII Legal updatE

Oregon DUII Legal updatE. ODAA Summer Conference Sunriver 2012 Sr. AAG Deena Ryerson, DOJ. Ignition Interlock. HB 4017

kenneth-smith
Download Presentation

Oregon DUII Legal updatE

An Image/Link below is provided (as is) to download presentation Download Policy: Content on the Website is provided to you AS IS for your information and personal use and may not be sold / licensed / shared on other websites without getting consent from its author. Content is provided to you AS IS for your information and personal use only. Download presentation by click this link. While downloading, if for some reason you are not able to download a presentation, the publisher may have deleted the file from their server. During download, if you can't get a presentation, the file might be deleted by the publisher.

E N D

Presentation Transcript

  1. Oregon DUII Legal updatE ODAA Summer Conference Sunriver 2012 Sr. AAG Deena Ryerson, DOJ

  2. Ignition Interlock HB 4017 • Requires an ignition interlock for 5 years after the ending date of the longest suspension/revocation period for the following convictions (associated with a DUII conviction): • Manslaughter I and II • Criminal Negligent Homicide • Assault I • Aggravated Vehicular Homicide • Permanent revocation pursuant to ORS 809.235 • Effective January 1, 2013

  3. Synthetic Marijuana Schedule I controlled substance • OAR 855-080-0021 • Not considered marijuana for purposes of charging someone with possession etc. • ORS 475.752 criminal charge (renumbered from ORS 475.840 in the 2011 legislative session)

  4. Measure 73 SB 395 • SB 395 codifies Ballot Measure 73 with regards to felony DUIIs in ORS 813.011 • Deals with the crime seriousness ranking for felony DUIIs • In effect creates two types of DUIIs: • CSR 6 = Felony DUII based on 3 or more priors in 10 years • CSR 4 = Felony DUII based on 2 priors in 10 years (OAR 213-017-0008) • Regardless of rank for M73 DUII, minimum sentence is 90 days: OAR 213-009-0001(1) "If a mandatory prison sentence is required or authorized by statute, the sentence imposed shall be that determinate sentence or the sentence under these rules whichever is longer.“

  5. Measure 73 SB 395 • Discrepancy with statute • Only subsequent DUIIs to a M73 felony DUII conviction will be a felony DUII no matter how long has passed • If a person has a previous felony DUII based on 3+ priors in 10 years, may still be eligible for misdemeanor • Dept of Corrections will reimburse costs to county for M73 jail time • Effective June 30, 2011

  6. Measure 73 Conviction for Felony DUII under ORS 813.010(5) and ORS 813.011 • Can be plead in one count (sufficient facts must be alleged that would provide the basis for conviction under both) • Benefits: • ORS 813.010(5) – presumptive prison • ORS 813.011 – subsequent DUII a felony • Judgment: • Have the court impose in the judgment the 90 day mandatory minimum under 813.011 even if court imposed a longer prison sentence under 813.010(5) • The person is then “sentenced ……under this section” as required by 813.011 and future DUIIs will be a felony

  7. PLEADING ISSUE Picking a Theory in Alcohol and Controlled Substance Cases – Issue: Jury Concurrance (Boots) ORS 809.265 (1)(b) – court suspension for a conviction for DUII “if the person was under the influence of an inhalant or a controlled substance” ORS 813.010 (2) – Must plead CS and “is either proved at trial or is admitted by the person through a guilty plea.”

  8. PLEADING ISSUE Recommendation for Alcohol and Controlled Substance Cases: 1. Plead the DUII in multiple counts (merges at sentencing) 2. Jury instruction on which theory they believe the person is impaired by, ie. alcohol, alcohol and controlled substance, or controlled substance.

  9. PLEADING ISSUE • Pleading for Manslaughter I in the event the jury finds D guilty of Manslaughter II (CS 9 vs 8): AND • Pleading for Assault II in the event the jury finds D guilty of Assault III (CS 8 vs 6) "The state further alleges that during the commission of this crime, the defendant was operating a motor vehicle while under the influence of intoxicants" OAR 213-018-0047

  10. Sober Diversion Issues?? • Medical MJ holders?

  11. Case Law Update

  12. Effect of Reading Implied Consent Consent (Breath, Blood, or Urine) • Court of Appeals ruling still stands that after a person is read ICRC a consent to give urine is rendered involuntary • State v. Moore, 247 Or App 39 (2011) • Crash resulting in fatality • Office read ICRC before getting blood and urine • Prosecutor did not establish exigency • Affirmed coercive nature of ICRC

  13. Effect of Reading Implied Consent Consent (Breath, Blood, or Urine) • If ICRC was read prior to urine test, there may be factors that can render consent voluntary: • The defendant spoke to counsel • Statements by defendant that indicate the threat of license suspension or fine is not material • “I don’t care, my license is already suspended” • Volunteers to take “tests” before officers ask • Dialogue between officer and defendant

  14. DOJ RECOMMENDATION for DRUG DUII • For cases where you want to obtain urine, read ICRC Section I for breath test; THEN… • Ask for express consent for a urine test. • Fill out express consent form. DO NOT read ICRC Section II prior to requesting urinebecause it is not necessary under ORS 813.140 and will render consent involuntary. Read Section II ONLY if a person refuses to give urine

  15. Consent Form CONSENT TO TAKE A URINE TEST I, ______________________, freely and voluntarily consent to provide a urine sample. No threats, inducements, or promises have been made to make me consent against my will. _____________________ ______________ Signature Date _____________________ ______________ Witness Date

  16. Alcohol and Exigency

  17. State v. Machuca Exigency – ALCOHOL CASES ONLY • Alcohol is per se exigent • “evanescent nature of a suspect’s blood alcohol content is an exigent circumstance” • Do not have to prove that a warrant could have been obtained faster than the actual time it took to get a breath or blood test • In a “rare” case where there is “significant” delay, the time it would take to get a warrant might be relevant

  18. State v. Martinez-Alvarez,245 Or App 369 (2011), 9/8/2011 Facts: • 11:00 pm – Stop for traffic infraction • D performed and failed FSTs • D was place under arrest • Officer did not transport D right away but waited for a tow to arrive • Sometimes it “takes awhile” • Approx. 12:00 midnight transport to jail

  19. Facts: • Officer Testified: • Nothing prevented him from working on the narrative portion of a search warrant while they waited for the tow • He did not consider applying for a telephonic warrant • He did not know how long it would take to get a telephonic warrant but estimated as little as 30 minutes if a “judge were available right away” • He acknowledged that alcohol dissipates from the body over time • HOWEVER, • He was not concerned about the loss of evidence for several hours • Defendant took breath test at 12:31 am • BAC .13 • 1 hour and 31 minutes from stop to breath test

  20. Opinion: • Court of Appeals: • QUESTION: • Is this case the “rare” case where a warrant could have been obtained and executed significantly faster than the actual process otherwise used under the circumstances? • 2 Considerations: • The actual loss of BAC over time which creates exigency • The time that it takes to obtain a search warrant results in the dissipation of BAC

  21. Opinion: • Court’s Considerations: • “The standard is not one of “20/20 hindsight” • Must consider officer’s perspective based on “information known or reasonably discernible in the totality of circumstances of the particular encounter”

  22. Creating a Record: KEY ISSUES: 1. What did the officer know at the time of the stop and arrest ?? Did the officer know in advance that there would beinevitable down time during the investigation and how much time would that be? 2. Could a warrant have been obtained? • Account for all the officer’s time so any "down time" (unaccounted time) is reduced to a minimum or completely eliminated AND • Determine how long the warrant process REALLY takes -- including drafting an affidavit and search warrant, locating a judge, and executing the warrant. • If there was any “down time,” it was not enough to get a warrant

  23. Creating a Record: • Things to Consider: • The time clock begins when the officer forms probable cause – not time of stop! • Account for officer’s time after PC formed • Routine investigation questioning • FSTs • Important part of investigation • Evidence of physical impairment can diminish if wait • Could potentially reduce PC • Arrest • Post arrest activity • Search incident to arrest • Inventory of car • Dealing with passengers

  24. Creating a Record: • Things to Consider: • Account for time cont.: • Wait time for tow • What is officer doing during wait time • Could officer start the warrant process during wait time? • Booking procedure at jail • Does officer have back-up available • Breath Test • Reading of implied consent • Requests to talk to counsel/others • 15 minute observation period • Any wait time for intoxilyzer • Other • Investigating crash/other emergency/necessary duties

  25. Creating a Record: • Things to Consider: • How long would warrant process take: • Include application process, the time it would take to create, obtain, ANDexecute (breath vs. blood). • Establish process and timeframes IN DETAIL • Could the warrant process start during the “down time” – any limitations? • Cover telephonic AND traditional process • Explain technology limitations (can you do it on your car computer???) • How long with or without judge available

  26. Exigency and Warrant Clock • State v. Amos, 235 Or App 637 (2011) • Facts: • D was stopped at 8:00pm and arrested for DUII at 8:24pm • D gave a breath sample at 9:22pm • The officer testified that a warrant would take 1 ½ to 2 hours to obtain • Held: • Not a rare case where warrant could be obtained faster • D was transported promptly after FST’s and breath test was conducted 58 min after arrest • Testimony showed that warrant would have taken longer

  27. Implied Consent • State v. Cabanilla, 241 Or App 351 (2011) • Affirmed without Opinion: • Defendant’s refusal to submit to a breath test was admissible despite defendant’s claims that he did not understand the implied consent warnings • Oregon Supreme Court: March 1, 2011 • The state does not have to prove that the defendant understood the ICRC just that the rights were read to him • Law enforcement is not required to read ICRC in the defendant’s native language.

  28. Attempted DUII • State v. Baty, 243 Or App 77 (2011) • Facts: • Officer noticed that D’s car was in a handicapped spot with a permit • The permit was registered to a person whose DOB is in 1926 • When D came to her car, officer noticed that she did not look 84 yo – D was impaired • Officer testified that he saw her drive “probably several feet” in reverse but not forward • Officer wrote in report “attempted to back up”

  29. Attempted DUII • State v. Baty, 243 Or App 77 (2011) • Facts: • On cross officer was shown a picture of the car that appeared to be parked all the way forward in the parking spot • Officer could then not say if she actually backed up or was preparing to • Defense asked the court to give the jury “Attempted DUII” as a lesser included offense of DUII and the court declined • Defense also argued that the handicapped spot is not a premises open to the public

  30. Should the Jury be Instructed on Attempted DUII? • Yes • No

  31. Attempted DUII • State v. Baty, 243 Or App 77 (2011) • Held: • Handicap parking spots are premises open to the public • Because a jury could have found that defendant did not in fact drive her car, but merely took a substantial step to do so, she was entitled to an instruction on “attempted DUII.” • Note: • If driving is seen or there is circumstantial evidence to driving, Att DUII should not be an available option • May be possible when person takes steps to drive • Implied Consent Statute applies to DUII notAtt DUII

  32. Attempted DUII • State v. Minow, 246 Or App 179 (2011) • Facts: • 911 call from man who sees bar employee arguing with man in a red pickup about whether the “drunk” person should drive – gives license plate number • Officer runs plate on way to scene and finds out the person is felony revoked • Officer gets to scene and sees the bar employee standing in the open driver’s side door with his back to the cab • He see another man about an arm’s length away • Officer believed the employee was trying to block the impaired person from getting in the truck • D ultimately admitted to driving to the bar and had keys in his possession • Officer believed he had PC for DWR and Att DUII

  33. Are the Facts Sufficient to Constitute Attempted DUII? • Yes • No

  34. Attempted DUII • State v. Minow, 246 Or App 179 (2011) • Held: • Officer had PC for attempted DUII • Court relied on the following facts: • D was intoxicated • D had keys in his possession • D was standing in front of the open driver’s side door trying to get in and was only prevented from doing so by another • D’s actions constituted a “substantial step” toward the crime of DUII.

  35. Sleep Driving • State v. Newman, 246 Or App 334 (2011) • Facts: • D took his car to dinner then had friends drive him home • D goes home and goes to sleep • D is stopped later in the evening after committing several traffic infractions • D blows a .15 • At trial D says he was not aware of leaving his apartment and driving his car • D argues that the evidence of his failure to remember is admissible because DUII involves a “voluntary act”

  36. Is the Evidence of Sleep Driving Admissible? • Yes • No

  37. Sleep Driving • State v. Newman, 246 Or App 334 (2011) • Held: • DUII is a strict liability crime that does not require the state to prove intent of impairment or driving • The evidence of sleep driving that defendant sought to introduce was irrelevant and should not be admitted

  38. Voluntary Intoxication and Reckless Standard • State v. McKay, 247 Or App 19 (2011) • Facts: • D drove his friend in his truck after a long day of drinking – both were heavily intoxicated • D drove the truck into a tree seriously injuring his friend • D was charged with Assault II, DUII, Reckless Driving, and Criminal Mischief II • The mental state for all charges, except DUII, is “recklessly” • D argued that his due process rights were violated because ORS 161.125(2) prevented the jury from considering voluntary intoxication when determining if he acted with a reckless state of mind

  39. Are Defendant’s Due Process Rights Violated? • Yes • No

  40. Voluntary Intoxication and Reckless Standard • State v. McKay, Or App (2011) • Held: • ORS 161.125(2) applies to the mental state of recklessness, specifically the defendant’s awareness of a risk • Voluntary intoxication is immaterial when deciding whether D acted recklessly

  41. Mental Disease or Defect and Reckless Standard • State v. Nebert, 244 Or App 80 (2011) • Facts: • D was charged with reckless driving and sought to offer evidence of a mental disease or defect to negate the “reckless” mental state • The trial court ruled for the state that evidence of a mental disease or defect cannot extend to “reckless” crimes • Held: • “Reckless” includes a subjective component that may be affected by a mental disease or defect • Evidence may be admitted

  42. Jurisdiction • State v. Smith, 246 Or App 614 (2011) • Facts: • Madras PD officer gets a report of a hit and run • Sees a car matching the description and attempts to initiate a traffic stop • D continues north without stopping and heads toward the Warm Springs Reservation • D is swerving • Officer calls Warm Springs PD and they were waiting at the border • D was arrested for DUII by Madras officer • D was a tribal member

  43. Jurisdiction • State v. Smith, 246 Or App 614 (2011) • Facts: • Madras PD officer received permission to take D to county jail • D argued that Madras officer did not have the authority to stop and arrest D on the reservation

  44. Did the Officer Have the Authority to Stop and Arrest? • Yes • No

  45. Jurisdiction • State v. Smith, 246 Or App 614 (2011) • Held: • An non-tribal officer can arrest a person for a traffic offense on the reservation if • the offense was committed in the officer’s presence • in that officer’s jurisdiction • the officer immediately pursued the person • the officer cited the person immediately at the end of the pursuit

  46. Stop • State v. Simpson, 245 Or App 152 (2011) • Facts: • Officer gets call from dispatch of an accident • Information received: • Color, make and license plate of car • Belief that driver is intoxicated • Caller remained at the scene • Officer sees car matching description within 1 block of scene of crash and stopped the car (no traffic violations observed) • Officer did not go to scene and did not see damage to D’s car

  47. Stop • State v. Simpson, 245 Or App 152 (2011) • Findings by Trial Court: • When officer made the stop, he did not know if caller would stay at scene • He thought that the caller was the other driver • The reliability of the informant was not present however, • Substance of the report was detailed enough to be reliable • Enough to support RS of DUII to justify stop

  48. Was the Informant’s Information Sufficient to Provide Officer RS of Crime? • Yes • No

  49. Stop • State v. Simpson, 245 Or App 152 (2011) • Findings by Court of Appeals: • Guidance to determine reliability of informants report • Is the informant exposed to possible criminal or civil prosecution if report is false? • Satisfied if informant gives name or information is delivered to police in person • Is the report based on personal observations of informant • Satisfied if information contains specific detail • Does the officers own observations corroborate information • Satisfied by observing illegal activity or finding what the informant described

  50. Stop • State v. Simpson, 245 Or App 152 (2011) • Findings by Court of Appeals: • The information given was of sufficient quantity and quality to give rise to a reasonable suspicion that defendant committed the offense. • Even though officer did not know informant’s name, the report was in sufficient detail to infer that the information was not fabricated • Even though all information is not corroborated, if there is nothing to contradict the information known, that must be taken into consideration.

More Related