State v. Driver
347 P.3d 359
Or. Ct. App.2015Background
- Defendant was arraigned on two DUII charges in December 2010; trial ultimately scheduled for January 2013 after multiple continuances and repeated discovery requests.
- From Jan–Sep 2011 defense counsel repeatedly requested discovery (audio, video, Intoxilyzer printouts, photos); many requests went unanswered or unresolved on the record until mid-September 2011.
- The trial court refused to sign subpoenas for law-enforcement-held materials and directed defendant to move to compel; the state first disclosed on September 12, 2011 that some items did not exist, were not in its control, or had been provided.
- Total delay from accusatory instruments to scheduled trial was ~26.5 months (807 days in one case, 802 in the other). The parties disputed allocation of days to state vs. defendant.
- Trial court denied defendant’s motion to dismiss under former ORS 135.747, attributing substantial delay to defendant and concluding any state delay was reasonable under the circumstances.
- Court of Appeals found 20 months of delay attributable to the state (including a 7‑month unjustified discovery delay) and reversed, ordering dismissal.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Whether post-arraignment delay was attributable to the state or defendant | State: it never requested continuances; defendant sought many resets and was responsible for discovery delays | Defendant: only consented to ~6.5 months; state failed to respond to repeated discovery requests and caused ~20 months delay | Court: 20 months attributable to state; state failed to justify 7 months of discovery delay; dismissal required |
| Whether repeated discovery requests by defense constitute consent to delay | State: defendant’s seeking subpoenas/motions shows awareness and tacit consent | Defendant: requests for discovery are not express consent to postponements | Court: consent must be express; discovery requests do not equal consent; delays attributable to state |
| Whether the state’s failure to produce or timely communicate about discovery was justified | State: some materials not in state’s control; not obliged to retrieve from other agencies; was ready for trial dates | Defendant: state’s silence and failure to inform caused avoidable delay | Court: state failed to justify seven-month delay; explanation that it wasn’t defendant’s “errand boy” insufficient |
| Whether the total state-attributable delay was reasonable under former ORS 135.747 | State: overall delay was reasonable given court docketing/prioritization | Defendant: cumulative >15 months (over 20 months) and significant unjustified portion makes delay unreasonable | Court: delay unreasonable; reversal and dismissal ordered |
Key Cases Cited
- State v. Allen, 234 Or App 243 (discusses expectations for trial timing)
- State v. Glushko/Little, 351 Or 297 (clarifies that defendant’s consent to postponement must be express)
- State v. Johnson, 339 Or 69 (framework for reviewing reasonableness under ORS 135.747)
- State v. Wendt, 268 Or App 85 (applies factors for statutory speedy‑trial analysis)
- State v. Myers, 225 Or App 666 (discusses weighing reasons and length of delays)
- State v. Davis, 236 Or App 99 (state bears burden to justify delay)
- State v. Peterson, 252 Or App 424 (holding that ~19 months without consent exceeds expectations in misdemeanor case)
- State v. Straughan, 263 Or App 225 (addresses cumulative delay and unreasonable unjustified portions)