State v. Adams5/12/2004
Argued and submitted March 8, 2004.
Affirmed.
The trial court granted defendant's motion to dismiss a charge of driving under the influence of intoxicants (DUII), concluding that the state had not complied with the statutory requirement to provide a speedy trial. ORS 135.747. We review for errors of law, State v. Hampton, 152 Or App 742, 744, 954 P2d 1267 (1998), and affirm.
On November 16, 1999, and again on November 21, 1999, defendant was arrested for DUII. He was arraigned on both DUII charges on December 20, 1999. On February 24, 2000, defendant made a demand for a speedy trial. On March 2, 2000, defendant rejected the state's plea offer and the first trial date was set for August 18, 2000. However, on July 17, 2000, the state requested that the trial be reset due to the unavailability of an essential witness. Defendant did not object to this request, and the trial date was reset for January 30, 2001. At the request of defense counsel, the trial date was again reset to May 31, 2001. On that day, no judges were available to try the case and the trial was reset to October 17, 2001. On October 17, the trial date was again reset, to March 7, 2002, again due to the unavailability of judges.
Shortly before that date, in March 2002, defendant moved to have the DUII charges against him dismissed due to asserted violations of his statutory and state constitutional rights to a speedy trial. The court apparently denied that motion, and defendant was tried on March 7, 2002. The jury convicted defendant of the second DUII charge but could not reach a verdict on the first one. The court declared a mistrial on the first count and set the date of retrial for August 20, 2002.
On August 15, 2002, defendant filed a second motion to dismiss for lack of a speedy trial. On August 20, 2002, after a hearing, the trial court granted the motion on the basis of ORS 135.747 and dismissed the case. The state appeals.
ORS 135.747 provides:
"If a defendant charged with a crime, whose trial has not been postponed upon the application of the defendant or by the consent of the defendant, is not brought to trial within a reasonable period of time, the court shall order the accusatory instrument to be dismissed."
To determine whether the state violated this statute, we must first determine the "period of time" of the delay, excluding any part of it made "upon the application of the defendant or by the consent of the defendant," and then determine whether that delay is "a reasonable period of time." Id. The time period in this case begins on arraignment December 10, 1999, the day that the charging instrument (the citation and complaint) was filed with the trial court clerk. Eight hundred sixteen days, or approximately 27 months, elapsed between defendant's arrest and his trial. One hundred twenty of those days resulted from defendant's request for a set over. The state argues that, because defendant did not object to the initial trial date or to the state's request for a set over, he consented to another 409 days (from December 20, 1999, the date of his arraignment, until January 31, 2001). In support of this proposition, the state cites our decision in State v. Peterson, 183 Or App 571, 53 P3d 455 (2002). The state reads too much into that case.
In Peterson, we wrote that a defendant's " onsent [to a delay] need not be explicit; for example, a defendant is charged with impliedly consenting to delays caused by his failure to appear." 183 Or App at 577. In Peterson, the delay between the defendant's arraignment and trial totaled 413 days. Id. at 574. He had impliedly consented to a delay of nine days by failing to appear, and
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