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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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Possession of evidence by the police is possession of evidence by the prosecutor.  State v. Johnson, 26 Or App 651 (1976), Kyles v. Whitley, 514 US 419, 437 (1995) Statements and witnesses’ memoranda in possession of the police are subject…

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This is an issue that comes up frequently for Oregon criminal defense attorneys.  You have information that involved police officers have past issues relating to their honesty, misuse of informants, violent activities, etc.  Nonetheless, the information is poorly substantiated or…

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The Oregon Court of Appeals has again confirmed that Oregon law restricts law enforcement’s use of a traffic stop to discover other crimes.  In State v. Klein (Appeals Court No. A136435, filed March 31, 2010), the court suppressed evidence of…

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