Opinion

State v. Matischeck

  • 20 Or. App. 332
  • 531 P.2d 737
  • 1975 Ore. App. LEXIS 1624
Court
Court of Appeals of Oregon
Filed
Feb 10, 1975
Status
Published
Author
Fort
On the bench
Fort, Schwab, Langtry, Port
Cited by
6 cases
Authority
More cited than 5.3%

Modified by State v. Matischeck, 21 Or. App. 300 (1975)

The opinion

FORT, J.,

dissenting.

The majority holds “that DUIL and possession of drugs at the same time and place constitute a single ‘act or transaction’ under Brown” (State v. Brown, 262 Or 442 , 497 P2d 1191 (1972)). It therefore concludes that, assuming prosecutorial knowledge at the time defendant pleaded guilty to DUIL the day prior to his indictment for criminal activity in drugs, the latter prosecution is barred under the double jeopardy clause.

I do not believe the mere coincidence that defendant was in possession of unlawful drugs at the time he was arrested for DUIL makes the former crime a part of the same “act or transaction” as the DUIL. In State v. Rook, 14 Or App 211 , 511 P2d 1245 , Sup Ct review denied (1973), we held that because a man committed three murders in the course of a single burglary, and was prosecuted first for only one, he was not barred by the double jeopardy provision from prosecution for the other two murders. Each killing was a separate “act or transaction.”

Recently in State v. Stover, 271 Or 132 , 531 P2d 258 (1975), our Supreme Court said:

“* * * Thus ‘crime’ as used in ORS 134.140(2) *339 is not to be interpreted broadly to include all crimes arising out of the same criminal transaction. It is clear that criminally negligent homicide and driving with .15% or more by weight of alcohol in the blood are separate and distinct crimes for purposes of OES 134.140(2). * * *” 271 Or at 142 .

Accordingly, I respectfully dissent.

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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