596 P.2d 569 | Or. | 1979
Defendant, a bus driver, was prosecuted on charges of reckless driving and driving while under the influence of drugs (DUID).
Under Ashe v. Swenson and State v. Mozorosky, supra, cited by the Court of Appeals, it is one application of the constitutional guarantee against double jeopardy that the state is collaterally estopped from retrying an issue that was decided against the state in a former trial, even if the former trial was not on the identical charge. The state urges the distinction that here the Court of Appeals did not bar the second trial but rather the use of certain evidence. It is true that this is a different consequence of the earlier acquittal, but it is not erroneous.
This holding does not imply exclusion of evidence that may be relevant to two separate offenses on different theories, unless defendant can show that he was acquitted of the earlier charge because the evidence was not believed. The state in fact proposed such a different theory for keeping the evidence in the second trial when it contended below that even if the use of marijuana did not cause careless operation of the vehicle, "the trier of fact could find or reasonably infer that driving and using marijuana, exhibits the element in reckless driving of 'wilful or wanton’ disregard of the rights or safety of others.” We understand this contention to argue that the crime of reckless driving may be made out if one has smoked marijuana before driving, even if this has had no influence on one’s driving and the driving itself does not otherwise display "wilful or wanton disregard of the rights or safety of others.” Under such a view of the reckless driving statute, the evidence of possible marijuana use would indeed be relevant to that offense irrespective of a prior finding that defendant was not driving under its influence; but we do not so interpret ORS 483.992(1). Since we are offered no other theory on which the evidence was relevant, the
Defendant also objected to the admission of testimony describing his appearance and demeanor at the time of the episode in question because, as evidence that the defendant had used marijuana, it too was foreclosed by the earlier acquittal. The state argues that evidence of defendant’s condition and demeanor can be relevant to whether defendant was reckless to operate the bus in an incapacitated condition apart from any use of drugs. Since the case has been remanded, it will be up to the trial court, in the event of a retrial, to rule on the relevance of such testimony as may be offered on some theory other than that the defendant was under the influence of drugs.
Affirmed.
ORS 483.992(1) and (2) (repealed 1975). The crimes are now defined in ORS 487.540 and 487.550. ORS 483.992(1) provided:
"Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others is guilty of reckless driving * *