337 P.3d 137
Or. Ct. App.2014Background
- Defendant arrested early Aug 15, 2011 for DUII and cited for appearance on Sept 13, 2011.
- Defendant failed to appear; court issued a warrant; he learned of the missed date on Sept 15 and rescheduled arraignment for Sept 20.
- State amended information to add failure to appear on a criminal citation, ORS 133.076, and tried both DUII and failure to appear together.
- Jury instruction on failure to appear defined “knowingly” and a special instruction required proving notice of the mandatory appearance.
- Defendant objected to the special instruction as impermissibly commenting on evidence and directing inference of knowledge.
- Conviction for failure to appear reversed and remanded; DUII conviction affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Suppression consent issue | State argues Moore controls; no coercion based on warnings. | Devore contends consent to urine sample was involuntary due to implied-consent warnings. | No reversal; Moore controls; suppression affirmed. |
| Jury instruction on knowledge for failure to appear | State contends instruction properly stated law and relevance of notice. | Devore argues instruction impermissibly commented on evidence and required inference of knowledge from notice. | Instruction improper; reversible error; reversed and remanded for failure to appear. |
Key Cases Cited
- State v. Hayward, 327 Or 397 (1998) (prohibits trial court comment on evidence)
- State v. Carter, 238 Or App 417 (2010) (need to prove defendant knew obligation to appear)
- State v. Rogers, 185 Or App 141 (2002) (cited for inference of knowledge from service)
- State v. Blanchard, 165 Or App 127 (2000) (neutral instruction may be proper; not an improper comment)
- State v. Maciel-Cortes, 231 Or App 302 (2009) (instruction that itself states a fact as evidence is improper)
- State v. Poole, 175 Or App 258 (2001) (instruction that tells jury to infer from evidence is improper)
- State v. Pratt, 316 Or 561 (1993) (whole-instruction review; not always harmless)
- State v. Moore, 354 Or 493 (2013) (implied-consent statutes; Supreme Court decision relied upon)