offense violation in Oregon

2012Every prosecution of an offense as a violation under ORS 161.566 begins as a prosecution for a misdemeanor and, thereby, invokes “all the trappings of a criminal prosecution.” Page, 200 Or App at 61-62 .

2006The severest and most intrusive of those procedures are likely to occur in the 36-hour period after arrest, a period likely to have elapsed before a decision will be made to treat the offense as a violation.” Id. at 62 .

1974“The proper rule to be applied here was early stated by our Supreme Court in State v. Baker, 23 Or 441, 443 , 32 P 161 (1893): “ * * In cases where the prosecution relies on circumstantial evidence for a conviction, and the evidence offered forms logically one link in the chain of circumstances, tending to show that he who committed the one crime must have committed the other, or is so intermingled and connected with the crime charged as to form one entire transaction, it is admissible although it may tend to prove distinct felonies. * * *’ ” Concerning the ropes, the jury could have reasonabl

1974“The proper rule to be applied here was early stated by our Supreme Court in State v. Baker, 23 Or 441, 443 , 32 P 161 (1893): “ * * In cases where the prosecution relies on circumstantial evidence for a conviction, and the evidence offered forms logically one link in the chain of circumstances, tending to show that he who committed the one crime must have committed the other, or is so intermingled and connected with the crime charged as to form one entire transaction, it is admissible although it may tend to prove distinct felonies. * * *’ ” Concerning the ropes, the jury could have reasonabl

2026In reaching that conclusion, we observed that, in State v. Howard, 214 Or 611 , 331 P2d 1116 (1958), this court had described when the exact date that a defendant allegedly committed an offense would be a material element of the offense under the exception specified in ORS 135.717.

2026In reaching that conclusion, we observed that, in State v. Howard, 214 Or 611 , 331 P2d 1116 (1958), this court had described when the exact date that a defendant allegedly committed an offense would be a material element of the offense under the exception specified in ORS 135.717.

2024In a bench trial, a defendant’s argument for the existence of an element of an offense or defense is the “functional equivalent of a challenge to jury instructions.” State v. Morgan, 361 Or 47, 51-52 , 388 P3d 1085 (2017); see also State v. Colby, 295 Or App 246, 252 , 433 P3d 447 (2018) (explaining that “it is not uncommon” during a bench trial for a trial court “to receive proposed instructions from the parties * * * and to instruct itself on the correct version of the law, thereby creating a record that allows us to review whether the court applied the correct principles of law in reaching

2024In a bench trial, a defendant’s argument for the existence of an element of an offense or defense is the “functional equivalent of a challenge to jury instructions.” State v. Morgan, 361 Or 47, 51-52 , 388 P3d 1085 (2017); see also State v. Colby, 295 Or App 246, 252 , 433 P3d 447 (2018) (explaining that “it is not uncommon” during a bench trial for a trial court “to receive proposed instructions from the parties * * * and to instruct itself on the correct version of the law, thereby creating a record that allows us to review whether the court applied the correct principles of law in reaching

2020The commission’s enabling statute provided that it could initiate that stage of an ethics investigation if it had “ ‘a substantial, objective basis for believing that an offense or violation may have been committed.’ ” Id. at 684 (quoting ORS 244.260(9); emphasis added).

2020The court explained that ORS 183.480(3) permitted Brian to challenge the com- mission’s nonfinal order initiating the second stage of an ethics investigation on the ground that the commission lacked probable cause to believe that an ethics violation “may have been committed.” Id.

2015These characteristics and behaviors might include, but are not limited to, the person’s weight and gender, the person’s typical drinking pattern and tolerance for alcohol, how much the person had to drink on the day or night in question, what the person drank, the duration of the drinking spree, the time of the last drink, and how much and what the person had to eat either before, during, or after the drinking.” Id.

2013Relying on the Court of Appeals’ recent decision in State v. Fuller, 252 Or App 391 , 287 P3d 1263 (2012) *305 (holding that the defendant was entitled to a jury trial on charges of third-degree theft, notwithstanding the prosecutor’s election to treat the offense as a violation), the trial court concluded that the violation charge against defendant qualified as a criminal prosecution under Article I, section 11.

2013Relying on the Court of Appeals’ recent decision in State v. Fuller, 252 Or App 391 , 287 P3d 1263 (2012) *305 (holding that the defendant was entitled to a jury trial on charges of third-degree theft, notwithstanding the prosecutor’s election to treat the offense as a violation), the trial court concluded that the violation charge against defendant qualified as a criminal prosecution under Article I, section 11.

2003Here, the information alleges that defendant committed theft against Fred Meyer, an entity that constitutes “another” or “an owner.” Additionally, ORS 135.725 provides: “When a crime involves the commission of or an attempt to commit a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material.” (Emphasis added.) We relied upon ORS 135.725 in State v. Hull, 33 Or App 183 , 575 P2d 1015 (1978), aff'd, 286 Or 511 , 595 P2d 1240 (1979), where we held that the identity o

2003Here, the information alleges that defendant committed theft against Fred Meyer, an entity that constitutes “another” or “an owner.” Additionally, ORS 135.725 provides: “When a crime involves the commission of or an attempt to commit a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material.” (Emphasis added.) We relied upon ORS 135.725 in State v. Hull, 33 Or App 183 , 575 P2d 1015 (1978), aff'd, 286 Or 511 , 595 P2d 1240 (1979), where we held that the identity o

2003As we held in State v. Eastman, 112 Or App 256, 258 , 828 P2d 484 (1992), “[t]he gravamen of the offense is the violation of a release or security agreement.” Even assuming for the sake of argument that it is necessary to allege release from either custody or a correctional facility, an allegation that a defendant has violated a release agreement states a crime.

2003As we held in State v. Eastman, 112 Or App 256, 258 , 828 P2d 484 (1992), “[t]he gravamen of the offense is the violation of a release or security agreement.” Even assuming for the sake of argument that it is necessary to allege release from either custody or a correctional facility, an allegation that a defendant has violated a release agreement states a crime.

2003Here, the information alleges that defendant committed theft against Fred Meyer, an entity that constitutes “another” or “an owner.” Additionally, ORS 135.725 provides: “When a crime involves the commission of or an attempt to commit a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material.” (Emphasis added.) We relied upon ORS 135.725 in State v. Hull, 33 Or App 183 , 575 P2d 1015 (1978), aff'd, 286 Or 511 , 595 P2d 1240 (1979), where we held that the identity o

2003Here, the information alleges that defendant committed theft against Fred Meyer, an entity that constitutes “another” or “an owner.” Additionally, ORS 135.725 provides: “When a crime involves the commission of or an attempt to commit a private injury and is described with sufficient certainty in other respects to identify the act, an erroneous allegation as to the person injured or intended to be injured is not material.” (Emphasis added.) We relied upon ORS 135.725 in State v. Hull, 33 Or App 183 , 575 P2d 1015 (1978), aff'd, 286 Or 511 , 595 P2d 1240 (1979), where we held that the identity o

1997Defendant apparently argues that the sentence here fails that test because it does not reflect mitigating factors such as criminal history. 4 *457 In State v. Teague, 215 Or 609 , 336 P2d 338 (1959), the Supreme Court held that a 12-year sentence for forgery coupled with a three-year consecutive term for uttering and publishing a false check did not “shock the moral sense of all reasonable men” even though the defendant had no substantial criminal record. 5 Id. at 611 .

1997Defendant apparently argues that the sentence here fails that test because it does not reflect mitigating factors such as criminal history. 4 *457 In State v. Teague, 215 Or 609 , 336 P2d 338 (1959), the Supreme Court held that a 12-year sentence for forgery coupled with a three-year consecutive term for uttering and publishing a false check did not “shock the moral sense of all reasonable men” even though the defendant had no substantial criminal record. 5 Id. at 611 .

1997Defendant first contends that his sentence is disproportionate to the offense in violation of Article I, section 16, of the Oregon Constitution, which provides, in part: “Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” A penalty violates the proportionality clause when it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” State v. Isom, 313 Or 391, 401 , 837 P2d 491 (1992), citing Cannon v. Gladden, 203 Or 629, 632 , 281 P2d 233 (1955).

1997Defendant first contends that his sentence is disproportionate to the offense in violation of Article I, section 16, of the Oregon Constitution, which provides, in part: “Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” A penalty violates the proportionality clause when it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” State v. Isom, 313 Or 391, 401 , 837 P2d 491 (1992), citing Cannon v. Gladden, 203 Or 629, 632 , 281 P2d 233 (1955).

1997Defendant first contends that his sentence is disproportionate to the offense in violation of Article I, section 16, of the Oregon Constitution, which provides, in part: “Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” A penalty violates the proportionality clause when it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” State v. Isom, 313 Or 391, 401 , 837 P2d 491 (1992), citing Cannon v. Gladden, 203 Or 629, 632 , 281 P2d 233 (1955).

1997Defendant first contends that his sentence is disproportionate to the offense in violation of Article I, section 16, of the Oregon Constitution, which provides, in part: “Cruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense.” A penalty violates the proportionality clause when it “is so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper.” State v. Isom, 313 Or 391, 401 , 837 P2d 491 (1992), citing Cannon v. Gladden, 203 Or 629, 632 , 281 P2d 233 (1955).

1996On appeal, defendant relies on United States v. Halper, 490 US 435, 109 S Ct 1892 , 104 L Ed 2d 487 (1989), and its progeny for his contention that the prosecution for *471 driving under the influence of intoxicants, after the suspension of his driving privileges by DMV, constituted a second punishment for the same offense in violation of the Fifth Amendment right to be free from double jeopardy. 2 The state responds that, because the administrative suspension of driving privileges is remedial, it does not constitute punishment and, therefore, does not give rise to a double jeopardy claim.

1996On appeal, defendant relies on United States v. Halper, 490 US 435, 109 S Ct 1892 , 104 L Ed 2d 487 (1989), and its progeny for his contention that the prosecution for *471 driving under the influence of intoxicants, after the suspension of his driving privileges by DMV, constituted a second punishment for the same offense in violation of the Fifth Amendment right to be free from double jeopardy. 2 The state responds that, because the administrative suspension of driving privileges is remedial, it does not constitute punishment and, therefore, does not give rise to a double jeopardy claim.

1995PGE, 317 Or at 611 .

1994The court wrongly defined “cause,” as used in ORS 244.260, as entailing a “reasonable suspicion” standard, rather than applying the statutory definition which, as noted above, is whether “there is a substantial objective basis for believing that an offense or violation may have been committed.” As we have explained, the phrase “proceeding without probable cause,” in ORS 183.480(3), means “without a reasonable basis for the action or inaction.” Mongelli v. Oregon Life and Health Guaranty, 85 Or App 518, 524 , 737 P2d 633 (1987); see also Lane Council Gouts v. Emp.

1994The court wrongly defined “cause,” as used in ORS 244.260, as entailing a “reasonable suspicion” standard, rather than applying the statutory definition which, as noted above, is whether “there is a substantial objective basis for believing that an offense or violation may have been committed.” As we have explained, the phrase “proceeding without probable cause,” in ORS 183.480(3), means “without a reasonable basis for the action or inaction.” Mongelli v. Oregon Life and Health Guaranty, 85 Or App 518, 524 , 737 P2d 633 (1987); see also Lane Council Gouts v. Emp.

1994Assn., 277 Or 631 , 561 P2d 1012 (1977); Shepherd v. OLCC, 81 Or App 201 , 724 P2d 901 (1986).

1994Assn., 277 Or 631 , 561 P2d 1012 (1977); Shepherd v. OLCC, 81 Or App 201 , 724 P2d 901 (1986).

1994Assn., 277 Or 631 , 561 P2d 1012 (1977); Shepherd v. OLCC, 81 Or App 201 , 724 P2d 901 (1986).

1994Assn., 277 Or 631 , 561 P2d 1012 (1977); Shepherd v. OLCC, 81 Or App 201 , 724 P2d 901 (1986).

1993Defendant relies on Brown v. Multnomah County District Court, 280 Or. 95 , 570 P.2d 52 (1977), and on our application of Brown in State v. Thomas, 99 Or.App. 32 , 780 P.2d 1197 (1989) aff'd on other grounds, 311 Or. 182 , 806 P.2d 689 (1991). [2] In Brown the legislature had sought to "decriminalize" the first offense of driving under the influence of intoxicants (DUII) by making it a Class A traffic infraction instead of a traffic crime.

1993Defendant relies on Brown v. Multnomah County District Court, 280 Or. 95 , 570 P.2d 52 (1977), and on our application of Brown in State v. Thomas, 99 Or.App. 32 , 780 P.2d 1197 (1989) aff'd on other grounds, 311 Or. 182 , 806 P.2d 689 (1991). [2] In Brown the legislature had sought to "decriminalize" the first offense of driving under the influence of intoxicants (DUII) by making it a Class A traffic infraction instead of a traffic crime.

1993Defendant relies on Brown v. Multnomah County District Court, 280 Or. 95 , 570 P.2d 52 (1977), and on our application of Brown in State v. Thomas, 99 Or.App. 32 , 780 P.2d 1197 (1989) aff'd on other grounds, 311 Or. 182 , 806 P.2d 689 (1991). [2] In Brown the legislature had sought to "decriminalize" the first offense of driving under the influence of intoxicants (DUII) by making it a Class A traffic infraction instead of a traffic crime.

1993Defendant relies on Brown v. Multnomah County District Court, 280 Or. 95 , 570 P.2d 52 (1977), and on our application of Brown in State v. Thomas, 99 Or.App. 32 , 780 P.2d 1197 (1989) aff'd on other grounds, 311 Or. 182 , 806 P.2d 689 (1991). [2] In Brown the legislature had sought to "decriminalize" the first offense of driving under the influence of intoxicants (DUII) by making it a Class A traffic infraction instead of a traffic crime.

1993Defendant relies on Brown v. Multnomah County District Court, 280 Or. 95 , 570 P.2d 52 (1977), and on our application of Brown in State v. Thomas, 99 Or.App. 32 , 780 P.2d 1197 (1989) aff'd on other grounds, 311 Or. 182 , 806 P.2d 689 (1991). [2] In Brown the legislature had sought to "decriminalize" the first offense of driving under the influence of intoxicants (DUII) by making it a Class A traffic infraction instead of a traffic crime.

1993Defendant relies on Brown v. Multnomah County District Court, 280 Or. 95 , 570 P.2d 52 (1977), and on our application of Brown in State v. Thomas, 99 Or.App. 32 , 780 P.2d 1197 (1989) aff'd on other grounds, 311 Or. 182 , 806 P.2d 689 (1991). [2] In Brown the legislature had sought to "decriminalize" the first offense of driving under the influence of intoxicants (DUII) by making it a Class A traffic infraction instead of a traffic crime.

1993Contrary to defendant’s argument and to the conclusion of the Court of Appeals, State ex rel Mikkelsen v. Hill, supra, 108 Or App at 138 , the Supreme Court did not decide in Hicks v. Feiock, supra, whether a state permissibly could place upon an alleged contemnor the burden of production on *456 an affirmative defense of inability to comply; it merely noted (in the quoted passage) that whether ability to comply was an element of an offense or a defense to it was a question of state law.

1992See State v. Clay, 84 Or App 514 , 734 P2d *259 400 (1987); State v. Phillips, 84 Or App 316 , 734 P2d 4 , rev den 303 Or 370 (1987); State v. Johnson, 66 Or App 123 , 672 P2d 1249 (1983).

1992See State v. Clay, 84 Or App 514 , 734 P2d *259 400 (1987); State v. Phillips, 84 Or App 316 , 734 P2d 4 , rev den 303 Or 370 (1987); State v. Johnson, 66 Or App 123 , 672 P2d 1249 (1983).

1992See State v. Clay, 84 Or App 514 , 734 P2d *259 400 (1987); State v. Phillips, 84 Or App 316 , 734 P2d 4 , rev den 303 Or 370 (1987); State v. Johnson, 66 Or App 123 , 672 P2d 1249 (1983).

1992See State v. Clay, 84 Or App 514 , 734 P2d *259 400 (1987); State v. Phillips, 84 Or App 316 , 734 P2d 4 , rev den 303 Or 370 (1987); State v. Johnson, 66 Or App 123 , 672 P2d 1249 (1983).

1990That is for the legislature to enact a statute, after January 1, 1972, which provides that an offense is not a violation, and for the offense to clearly indicate a legislative intent to dispense with the culpable mental state requirement." 297 Or. at 200 , 681 P.2d 1152 .

1990That is for the legislature to enact a statute, after January 1, 1972, which provides that an offense is not a violation, and for the offense to clearly indicate a legislative intent to dispense with the culpable mental state requirement." 297 Or. at 200 , 681 P.2d 1152 .

1990The judgment of the circuit court is reversed and the case is remanded to the circuit court for further proceedings consistent with this opinion. 1 ORS 161.565 provides: “An offense is a violation if: “(a) The offense is so designated in the statute defining the offense; “(b) The statute prescribing the penalty for the offense provides that the offense is punishable only by a fine, forfeiture, fine and forfeiture or other civil penalty; or “(c) The offense is declared to be a violation for purposes of the particular case, as provided in subsection (2) of this section.” 2 Article III, section 1

1990The judgment of the circuit court is reversed and the case is remanded to the circuit court for further proceedings consistent with this opinion. 1 ORS 161.565 provides: “An offense is a violation if: “(a) The offense is so designated in the statute defining the offense; “(b) The statute prescribing the penalty for the offense provides that the offense is punishable only by a fine, forfeiture, fine and forfeiture or other civil penalty; or “(c) The offense is declared to be a violation for purposes of the particular case, as provided in subsection (2) of this section.” 2 Article III, section 1