State v. Baty
243 Or. App. 77
Or. Ct. App.2011Background
- Baty was convicted in municipal court of DUII under ORS 813.010 after being observed in a disabled parking space.
- Officer observed a red Ford Taurus in a disabled-only spot; a separate Acura without a permit briefly parked next to it; officers suspected DUII from Baty's appearance and odor of alcohol.
- Evidence included field sobriety tests failed by Baty and a breath test showing BAC of .17.
- Baty challenged acquittal on the theory that a disabled-only space is not a premises open to the public; she also sought a jury instruction on attempted DUII.
- The trial court denied the motion and refused the attempted DUII instruction; on appeal, the central question was whether attempted DUII could be charged and instructed upon.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a disabled-only parking space is a premises open to the public for DUII purposes. | Batys arguments that disabled space is not open to the public. | State contends space is open to the public for parking and incidental use. | Yes; the space is open to the public. |
| Whether the trial court properly denied the motion for judgment of acquittal. | State contends sufficient evidence of public premises and driving. | Baty argued no driving occurred on premises open to the public. | No error; evidence supports driving on premises open to the public. |
| Whether the trial court erred in not instructing on attempted DUII. | Defendant requested an attempted DUII instruction based on evidence of preparatory steps toward driving. | State argued DUII is all-or-nothing and no attempted DUII exists. | The court erred in refusing attempted DUII instruction; reversible error. |
| Whether ORS 801.020(7) prohibits recognizing attempted DUII as a crime or construction of such a defense. | State urged the vehicle code governs construction and that attempted DUII does not exist. | Batty contends ORS 136.465 allows construction of an attempted DUII offense outside the vehicle code. | ORS 801.020(7) does not prohibit recognizing attempted DUII. |
Key Cases Cited
- State v. Taylor, 207 Or.App. 649 (2006) (supports reviewing evidence for requested lesser offense instruction)
- State v. Barnes, 329 Or. 327 (1999) (entitlement to instructions reflecting theory of the case if supported by law and evidence)
- State v. Anderson, 241 Or. 18 (1965) (attempts as lesser-included offenses; general principle)
- State v. Vasquez-Rubio, 323 Or. 275 (1996) (legislative interpretation considerations of time bars and defenses)
- State v. Bilsborrow, 230 Or. App. 413 (2009) (driving and movement elements for DUII)