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By a 5-4 vote (with a spirited dissent led by new Justice Sotomayer), the Supreme Court in Berghuis v. Thompkins, (Supreme Court #08-1470, decision filed 6/2/10) ruled that if a suspect wishes to invoke his constitutional right to remain silent,…

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Generally, Oregon law provides that the presentation of evidence to the Grand Jury is administered by the DA’s office (see ORS 132.320(9): the DA is not bound to present evidence for the defendant). But what if you have evidence which…

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According to the State Court of Appeals, a passenger (ultimately the defendant) reached over and jerked the wheel, causing a traffic accident.  Driving?  Yes, indeed, says State v. Cruz, 120 Or App 214 (1993).

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Challenges to DUII / controlled substances drug testing results. After State v. Machuca, it’s clear that the police do not need a warrant in order to take a breath sample.  The Supremes ruled that the dissipation of alcohol within the…

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Miranda warnings required even when no verbal or physical arrest under some circumstances: Remember practitioners, it doesn’t necessarily require direct verbal or physical indications of arrest in order to require Miranda before taking statements from a suspect defendant.  In State…

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Is a driver necessarily always guilty if he violates the posted speed in a VBR case?  Perhaps not.  See State v. Ringle, 40 Or App 393 (1979).  The court found that there needed to be a showing of “special hazards”…

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Fact situation:  Child victim makes accusatory statements to various persons, both medical, treating and non-expert.  Child makes statements recanting the accusation to others.  DA wants to exclude the recantation statements as hearsay.  See ORE 803 18a(b), which discusses statements not…

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Remember:  If your client gets a five-year gun minimum on a Class C Felony, because the total prison term plus post-prison supervision can’t equal more than the five-year statutory maximum, the most PPS he could get would be whatever amount…

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In Theft by Receiving, UUMV and, in general, all thefts in which the culpable mental state alleged is “knowing,” it may be improper to instruct the jury that they can find guilt based upon a defendant “having good reason to…

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DUII practitioners, remember:  certain field sobriety tests (essentially you could argue anything verbal) are in fact testimonial.  See State v. Fish (1995).

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