297 P.3d 531
Or. Ct. App.2013Background
- Defendant was charged with misdemeanor DUII under ORS 813.010(1).
- Pretrial delay arose after discovery/subpoena issues and contempt proceedings involving Officer Harley.
- Contempt proceedings and mandamus actions caused substantial stay and delay in the DUII case.
- Trial court dismissed the case for lack of a speedy trial under ORS 135.747 after delays exceeded the statutory timeframe.
- The state appeals, arguing some delays were attributable to defendant or were reasonable under the circumstances.
- Court adopts a two-step analysis: total delay minus periods attributable to defendant, then reasonableness of remaining delay; ultimately remands for recalculation and analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether delays attributable to the defendant were properly excluded. | State argues defendant caused or consented to most delays. | Defendant did not expressly consent to most delays; stays and contumacious proceedings were necessary for defense. | Yes; some delays attributed to defendant; need recalculation under ORS 135.747. |
| Whether the remaining net delay attributable to the state was reasonable. | State contends the 190 days attributable to it were reasonable given circumstances. | Delay mostly unrequested/unconsented and excessive; defense strategy and contempt proceedings caused delays. | Net state delay of 190 days was reasonable under the circumstances. |
| Whether the court properly treated stays and contempt-related proceedings in the speed trial calculation. | Stays and contempt actions impacted timing and should be considered in attribution. | Defendant sought stays to protect defense; delay justified for due process. | Contempt-related stays and proceedings are properly considered in attributing delay. |
| What is the correct post-remand calculation of delay attribution to the state vs defendant? | State seeks attribution of key periods to defendant where actions caused delay. | Many delays were defense-driven or caused by procedural motions. | Court must recalculate; on current record, 190 days state, 645 days defendant. |
Key Cases Cited
- State v. Johnson, 339 Or 69 (2005) (underlying standard for reviewing ORS 135.747 fast-trial orders)
- State v. Garcia/Jackson, 207 Or App 438 (2006) (timing of delay and attribution principles in speedy-trial analysis)
- Glushko/Little, 351 Or 297 (2011) (two-step delay analysis; attribution and reasonableness)
- Davis, 236 Or App 99 (2010) (defendant’s actions within multiple cases; effect on delay attribution)
- Allen, 234 Or App 243 (2010) (distinguishes when defense counsel’s unavailability vs discovery violations affect attribution)
- Crosby, 217 Or App 393 (2008) (demurrer filing as delaying action; delay attribution when pretrial motions filed)
- Robinson, 217 Or App 612 (2009) (demurrer and related pretrial actions; delay attribution)
- Fleetwood, 186 Or App 305 (2003) (consent/requirement to pretrial motions and resulting delay)