Petition for Writ of Certiorari — Lowen v. Oregon

| Supreme Court, U.S,

_ FILED

OCT 24 1988

JOSEPH F. SPANIOL, JR,

CLERK

em

IN THE UNITED STATES SUPREME COURT

OCTOBER TERM, 1988

DARRELL LAMONT LOWEN,

PETITIONER-APPELLANT, )

VS.

STATE OF OREGON,

ee lel el el

RESPONDENT-APPELLEE,

ON PETITION FOR WRIT OF CERTIORARI

TO THE OREGON COURT OF APPEALS

PETITION FOR CERTIORARI

JOHN R. MILLER, ATTORNEY

1049 EDGEWATER STREET N.W.

SALEM, OR 97304

503/399-9795

ATTORNEY FOR PETITIONER

DAVID FROHNMAYER, ATTORNEY GENERAL

VIRGINIA LINDER, SOLICITOR GENERAL

400 JUSTICE BUILDING

SALEM, OR 97310

503/378-4400

ATTORNEY FOR RESPONDENT

QUESTIGN PRESENTED FOR REVIEW:

DOES THE ADMISSION OF THE BREATH TEST OF

THE PETITIONER WITHOUT THE OBTAINING OF

A SEARCH WARRANT VIOLATE HIS RIGHTS TO

DUE PROCESS OF LAW AND TO BE FREE OF

UNREASONABLE SEARCHES AND SEIZURES AS

GUARANTEED BY THE FIFTH AND FOURTH

AMENDMENT TO THE UNITED STATES CONSTITU-

TION?

PARTIES TO PROCEEDING:

THE PARTIES TO THE PROCEEDING IN THE COURT

WHOSE JUDGMENT IS SOUGHT TO BE REVIEWED

ARE SET FORTH IN THE CAPTION OF THE CASE

AND ARE THE SOLE PARTIES HEREIN.

TABLE OF CONTENTS

QUESTION PRESENTED FOR REVIEW........ l

PARTIES TO PROCESDING...-04 seeeeeeneae 1

TABLE OF CONTENTE.. 42600 cur ere tees ss 2

TABLE OF AUTHORI TERS.) + c46 5555 se bene 3

REFERENCE 70 REPOUTS. 727s sdeceeeasees 5

CONCISE STATEMENT OF JURISDICTION.... 5

CONSTITUTIONAL PROVISIONS INVOLVED... 6

CONCISE STATEMENT OF CASE..cceeceeees 7

STAGE OF RAISING FEDERAL ISSUES...... 10

ARGUMENT FOR ALLOWANCE OF WRIT....... 11

APPENDIX. .. 03500605 See eae eee 15

OPINION OF TRIAL COURT.......-eee. 15

DECISION OF COURT OF APPEALS....... 23

ORDER OF OREGON SUPREME COURT...... 26

APPELLATE JUDGMENT «cs sscsccececctss 27

PROOF OF SERVICES ce ewes cewe coke es 30

PROOF OF SERVICE OF CORRECTED

PETITION FOR CERTIORARI......... 31

TABLE OF AUTHORITIES

CASES CITED

PR Rmmee Ve BROMM cccccccccccccccccecese 13

481 APP. F. SUPP. 26 (D.C., OR, 1979)

MILLER V. QREGON.................... 13

106 S.CT. 1973, 90 L.ED. 2D 299 (1985)

Re Sh MOE bcd vc wvcccicewvocecn 13

591 P2D 1374, 285 OR 361, CERT. DEN.

190 S.CT. 66 (1979)

a 11

5 OR APP 519, 485 P2D 33 (1971)

Tt ME es scccbeseswssceces 13

709 P2D 225, 300 OR 203, CERT DEN.

MILLER V. OREGON, 106 S.CT. 1973.

90 L.ED. 2D 399 (1985)

ps TES OG aR ty» ee 12

618 P2D 423, 289 OR 845, CERT. DEN.

101 S.CT. 2051, 451 U.S. 972, 68

L.ED. 2D 352 (1980)

EMRE Vo Miles ccceccccccccccccccecs 13

733 P2d 54, 83 OR APP 616, REV. DEN.

734 P2D 1365, 303 OR 172 (1987)

xo

a

UNITED STATES V. FRIESEN....---++eeees 12

545 F2D 672, CERT. DEN. 97 S.CT. 2980,

433 U.S. 911, 53 L.ED 2D 1096

(C.A., OR, 1976)

STATUATORY PROVISION

28 U.S.C. LAST ccccvccccscsccscccssseocoes 6

CONSTITUTIONAL PROVISIONS

UNITED STATES CONSTITUTION,

AMENDMENT IV...--ceeececccecccceeees 1, 6

UNITED STATES CONSTITUTION,

AMENDMENT V....--eeeeecceerceeescees 1, 6

OTHER AUTHORITIES

UNITED STATES SUPREME COURT RULE 20....6

REFERENCE TO REPORTS:

THE YAMHILL COUNTY DISTRICT CQURT FOUND

DEFENDANT GUILTY AND ENTERED A PROBATION

ORDER, A COPY OF WHICH IS SUBMITTED IN

THE ACCOMPANYING APPENDIX, WHICH COPY IS

BY THIS REFERENCE INCORPORATED HEREIN.

THE CASE WAS APPEALED TO THE COURT OF

APPEALS FOR OREGON, WHERE IT BECAME

CA A46075, AND WAS AFFIRMED WITHOUT

OPINION. A PETITION FOR REVIEW TO THE

OREGON SUPREME COURT WAS FILED, WHEREIN

THIS MATTER BECAME SC S35246, WHICH

PETITION FOR REVIEW WAS DENIED. THERE-

AFTER, ON SEPTEMBER 16, 1988, THE

APPELLATE JUDGMENT WAS FILED.

CONCISE STATEMENT OF JURISDICTION:

THE PETITIONER SUBMITS THAT THE FOLLOW-

ING IS A SUFFICIENT AND PROPER SHOWING

OF JURISDICTION OF THIS COURT HEREIN.

THE OREGON COURT OF APPEALS AFFIRMED THE

OPINION OF THE YAMHILL COUNTY DISTRICT

COURT ON MAY 11, 1988. THE OREGON

=

SUPREME COURT DENIED THE PETITION FOR

REVIEW ON JULY 26, 1988. THE APPELLATE

JUDGMENT WAS FILED ON THE 16TH DAY OF

SEPTEMBER, 1988. PETITIONER HAS STAND-

ING TO FILE HIS PETITION FOR CERTIORARI

HEREIN PURSUANT TO 28 U.S.C. 1257 AND

UNITED STATES SUPREME COURT RULE 20.

CCNSTITUTIONAL PROVISIONS INVOLVED:

THE FIFTH AMENDMENT TO THE UNITED STATES

CONSTITUTION AND THE FOURTH AMENDMENT TO

THE UNITED STATES CONSTITUTION ARE THE

CONSTITUTIONAL PROVISIONS INVOLVED IN

THIS CASE. THE FIFTH AMENDMENT PROVIDES:

“NO PERSON SHALL BE...DEPRIVED OF LIFE,

LIBERTY, OR PROPERTY, WITHOUT DUE PROCESS

OF LAW..." THE FOURTH AMENDMENT PROVIDES:

“THE RIGHT OF THE PEOPLE TO BE SECURE IN

THEIR PERSONS, HOUSES, PAPERS, AND EFFECTS,

AGAINST UNREASONABLE SEARCHES AND SEIZURES,

SHALL NOT BE VIOLATED, AND NO WARRANTS

SHALL ISSUE, BUT UPON PROBABLE CAUSE,

ais

<<<

SUPPORTED BY OATH, OR AFFIRMATION, AND

PARTICULARLY DESCRIBING THE PLACE TO BE

SEARCHED AND THE PERSONS OR THINGS TO

BE SEIZED."

CONCISE STATEMENT OF CASE:

THE FACTS OF THE CASE ARE AS FOLLOWS.

ON SATURDAY, OCTOBER 26, 1985, AT APPROX-

IMATELY 1830 HOURS, OFFICER D. J. WALKER

OF THE YAMHILL CQUNTY SHERIFF'S OFFICE

WAS ADVISED OF SUSPECT DRIVING BY A GREEN

TOYOTA LEAVING AMITY ON HIGHWAY 99W

TOWARD MCMINNVILLE, TRIAL TAPE 1, NO. 28,

EY SEQ. AT APPROXIMATELY 1850 HOURS HE

WAS FURTHER ADVISED THAT THE GREEN TOYOTA

WAS ON HIGHWAY 18 BYPASS LEAVING MCMINN-

VILLE. OFFICER WALKER OBSERVED THE VEHICLE

THAT HE TOOK TO BE THE SUBJECT VEHICLE

PASSING ON HIGHWAY 18 AT THE DAYTON INTER-

CHANGE WITH SEVERAL CARS FOLLOWING BEHIND

IT. APPROXIMATELY THREE MILES LATER THE

OFFICER STOPPED A TOYOTA DRIVEN BY THE

=, =

PETITIONER. DEFENDANT LOWEN'S VEHICLE

WAS BLUE WITH A WHITE TOP RATHER THAN

GREEN. OFFICER WALKER INDICATED THAT

HE SMELLED A "MODERATE TO STRONG ODOR

OF ALCOHOLIC BEVERAGES" AS HE APPROACHED

THE DRIVER'S DOOR AND THAT THE DEFENDANT

PRODUCED HIS DRIVER'S LICENSE AFTER

REMOVING IT FROM THE NUMBEROUS CARDS

CONTAINED IN HIS WALLET.

DEFENDANT WAS ADVISED BY OFFICER WALKER

THAT HE WAS TAPING THE INTERVIEW AND WAS

GIVEN HIS MIRANDA RIGHTS BY THE OFFICER,

TRIAL TAPE 1, NO. 84, ET SEQ. AND PLAIN-

TIFF'S EXHIBIT 1. OFFICER WALKER ADMINIS-

TERED SEVERAL FIELD SOBRIETY TESTS AND

THEN PLACED DEFENDANT UNDER ARREST FOR

DRIVING UNDER THE INFLUENCE OF INTOXICANTS

AND TRANSPORTED HIM TO THE YAMHILL COUNTY

SHERIFF'S OFFICE IN MCMINNVILLE. OFFICER

WALKER WAS AWARE THAT DEFENDANT LOWEN WAS

a

A LONG DISTANCE TRUCK DRIVER BY OCCUPA-

PATION, TRIAL TAPE NO. 1, AT 464.

OFFICER WALKER INFORMED DEFENDANT

LOWEN THAT HE HAD TO SUBMIT TO A BREATH

TEST OR HIS LLCENSE WOULD BE SUSPENDED

FOR A ONE YEAR PERIOD OF TIME AND HE

WOULD NOT BE ELIGIBLE FOR AN OCCUPA-

TIONAL LICENSE FOR A PERIOD OF AT LEAST

NINE’ Y DAYS, TRIAL TAPE 2 AT 29, AND

PLAINTIFF'S EXHIBIT 1. DEFENDANT LOWEN

DID NOT WISH TO GIVE A BREATH TEST, BUT

FELT COMPELLED TO DO SO BY OFFICER WALKER.

THIS IS EVIDENT FROM THE DISCUSSION OF

OFFICER WALKER AND DEFENDANT LOWEN ON

THE INTERVIBW TAPE, PLAINTIFF'S EXH™BIT

1 AND TRIAL TAPE 2, AT 29 EF SEQ. A

BREATH TEST OF .18% BLOOD ALCOHOL WAS

ORTAINED BY THE OFFICER.

THERE WAS NO EVIDENCE WHATSOEVER OF ANY

EXIGENT CIRCUMSTANCES OR PRACTICAL

NECESSITY THAT REQMUIRED THE IMMEDIATE

aie

TAKING OF A BREATH TEST AS OPPOSED TO

TO THE OBTAINING OF A WARRANT COMPELLING

SAID BREATH TEST. WHEN BEING CROSS-

EXAMINED BY DEFENSE CGUNSEL, OFFICER

WALKER WAS CLEAR THAT HE 4 ADE NO EFFORTS

TO CONTACT ANY JUDGE OR OFFICER OF THE

COURT IN AN EFFORT TO OBTAIN A WARRANT

FOR SAID BREATH, SEE CROSSEXAMINATION

OF OFFICER WALKER. THE OFFICER'S SOLE

EXPLANATION FOR MAKING NO EFFORTS TO

OBTAIN A WARRANT WAS THAT THE ALLEGED

INCIDENT HAD NOT OCCURRED DURING

BUSINESS HOURS. AS IT WAS ON THE WE EK-

END HE DID NOT KNOW IF A JUDGE W OULD

HAVE BEEN AVAILABLE FOR PURPOSES OF

ISSUANCE OF A WARRANT.

STAGE OF RAISING FEDERAL ISSUES:

THE DEFENDANT FIRST RAISED THE FEDERAL

ISSUES BY FILING A MOTION TO SUPPRESS

OR EXCLUDE EVIDENCE OF THE BREATH TEST.

-10-

THIS MOTION SPECIFICALLY CITED THE

FOURTH AND FIFTH AMENDMENTS TO THE

UNITED STATES CONSTITUTION. JUDGE

HARRIS DENIED THAT MOTION DURING THE

COURSE OF THE TRIAL, WITH EXCEPTION

THERETO BEING NOTED. THESE ISSUES

WERE RAISED AT THE CQURT OF APPEALS

LEVEL BY BRIEF, AND AT THE OREGON

SUPREME COURT LEVEL, BY PETITION

FOR REVIEW.

ARGUMENT FOR ALLOWANCE OF WRIT:

A PRIMARY DUTY OF OUR CRIMINAL JUSTICE

SYSTEM IS TO PRESERVE THE RIGHTS OF THE

DEFENDANT, STATE V. HCWSE, 5 OR APP 519,

485 P2D 33 (1971). THE DEFENDANT HAS AN

UNASSAILABLE RIGHT TO DUE PROCESS OF LAW

IN THE CRIMINAL PROCEEDING CHARGING HIM

WITH DRIVING UNDER THE INFLUENCE OF

INTOXICANTS. A CONDITION PRECEDENT TO A

FAIR TRIAL IS THE SUPPRESSION OR EXCLU-

SION OF EVIDENCE IMPROPERLY OBTAINED.

=) =

IN THE INSTANT CASE ‘THERE IS NO SHOW-

ING WHATSOEVER OF EXIGENT CIRCUMSTANCES

OR PRACTICAL NECESSITY THAT WOULD HAVE

EXCUSED THE OFFIVER FROM THE OBTAINING

OF A WARRANT FOR THE BREATH TEST. ~

IN DETERMINING THE CONSTITUTIONALITY

OF A PARTICULAR GOVERNMENT PROCEDURE,

THE PROMOTION OF LEGITIMATE GOVERNMENT

INTEREST AT STAKE IS BALANCED AGAINST

THE INDIVIDUAL'S RIGHT TO HAVE HIS OR

HER PRIVACY AND PERSONAL SECURITY BE

FREE FROM ARBITRARY AND OPPRESSIVE

GOVERNMENTAL INTERFERENCE, CTATE V.

TOURTILLOTT, 618 P2D 423, 289 OR 845,

CERT. DEN. 101 S.CT. 2051, 451 U.S.

972, 68 L.ED. 2D 352 (1980). THERE IS

A NECESSITY OF AND A PREFERENCE FOR

WARRANTS. EXCEPTIONS ARE FEW AND FAR

BETWEEN, SEE U.S. V. FRIESEN, 545 F2D

672, CERT. DEN. 97 S.CT. 2980, 433 U.S.

sy

911, 53 L. ED. 2D 1096 (c.A., oR,

1976), BILBEY V. BROWN, 481 APP. F.

SUPP. 26 (D.C., OR, 1979), STATE Vv.

MILLER, 709 F2D 225, 300 oR 203,

CERT. DEN., MILLER V. REGON, 106

S.CT. 1793, 90 L.ED. 2p 339 (1985),

STATE V. FONDREN, 591 P2pD 1374, 285

OR 361, CERT. DEN. 100 S.CT. 66

(1979), and STATE V. WILSON, 733

F2D 54, 83 OR APP 616, REV. DEN.

734 P2d 1365, 303 OR 172 (1987).

THE ADMISSION OF THE BREATH TEST

WITHOUT THE PRIOR ORTAINING OF A

WARRANT THEREFOR VIOLATES THE DEFEN-

DANT'S RIGHTS TO BE FREE FROM UNLAWFUL

SEARCHES AND SEIZURES AND TO Dut PHOCESS

OF LAW AS GUARANTEED BY THE FOURTH AND

FIFTH AMEN ENTS TO THE UNITED STATES

CONSTITUTION. THIS COURT OUGHT TO

GRANT THE PETITION FOR CERTIORARI AND

ay

REVERSE THE ACTION OF THE TRIAL COURT

SUPPRESSING THE BREATH TEST AS HAVING

BEEN IMPROPERLY OBTAINED AS IT WAS

TAKEN WITHOUT A SEARCH WARRANT.

DATED THIS 24TH DAY OF OCTOBER, 1988.

RESPECTFULLY SUBMITTED,

JOHN R. MILLER

OSB NO. 73204

UNITED STATES SUPREME

COURT BAR MEMBER

ATTORNEY FOR PETITIONER

atta

IN THE DISTRICT COURT OF THE

STATE OF OREGON

FOR THE COUNTY OF YAMHILL

THE STATE OF OREGON,

)

)

PLAINTIFF, ) NO. 46211

)

vs. ) PROBATION ORDER

)

DARRELL LAMONT LOWEN, )

)

DEFENDANT. )

THE ABOVE-NAMED DEFENDANT, WITH

HIS ATTORNEY JOHN MILLER, CAME BEFORE

ME ON THE 10TH DAY OF SEPTEMBER, 1987,

AND WAS CONVICTED TO A COMPLAINT FILED

HEREIN ACCUSING THE DEFENDANT OF THE

CRIME OF DRIVING UNDER THE INFLUENCE

OF INTOXICANTS (CONTINUED FOR SENTENCING

UNTIL SEPTEMBER 16, 1987);

NOW, THEREFORE, IT IS HEREBY ORDERED

THAT IMPOSITION OF SENTENCE BE, AND THE

SAME HEREBY IS SUSPENDED, AND THE

DEFENDANT SHALL BE PLACED UPON PROBATION

TO YAMHILL COUNTY COMMUNITY CORRECTIONS

wie

PROGRAM/STATE OF OREGON FOR A PERIOD

OF TWO (2) YEARS UPON THE FOLLOWING

CONDITIONS:

1. DEFENDANT SHALL REMAIN UNDER

THE SUPERVISION AND CONTROL OF THE

YAMHILL COUNTY COMMUNITY CORRECTIONS

PROGRAM/STATE OF OREGON, AND SHALL

ANSWER ALL REASONABLE INQUIRIES AND

FOLLOW ALL DIRECTIONS OF HIS PROBATION

COUNSELOR.

2. DEFENDANT SHALL NOT VIOLATE

ANY MUNICIPAL, COUNTY, STATE OR FEDERAL

LAWS.

3. DEFENDANT SHALL NOT LEAVE THE

STATE OF OREGON WITHOUT FIRST OBTAINING

PERMISSION IN WRITING FROM THE PROBATION

COUNSELOR.

4. DEFENDANT SHALL NOTIFY HIS

PROBATION COUNSELOR OF ANY CHANGE OF

RESIDENCE AND PHONE NUMBER AND SHALL

CONSULT HIS PROBATION COUNSELOR ABOUT

«tiie

+l

ANY MOVE IN ADVANCE OF ANY MOVE.

>. DEFENDANT SHALL NOT KNOWINGLY

ASSOCIATE WITH ANY PERSON WITH A CRIMINAL

RECORD WITHOUT THE APPROVAL OF HIS

PROBATION COUNSELOR.

6. DEFENDANT SHALL SEEK AND MAIN-

TAIN GAINFUL EMPLOYMENT AND SUPPORT OF

HIMSELF AND HIS DEPENDENTS TO THE BEST

OF HIS ABILITY.

7. DEFENDANT SHALL REPORT TO HIS

PROBATION COUNSELOR AS DIRECTED BY THE

COURT OR THE PROBATION COUNSELOR.

8. DEFENDANT SHALL PAY A FEE OF

$15.00 PER MONTH TO HELP PAY THE COST

OF PROBATIONARY SUPERVISION, SAID PAY-

MENT SHALL BE PAID ON OR BEFORE THE 10TH

DAY OF EACH MONTH HEREAFTER TO THE

YAMHILL COUNTY CLERK.

9. DEFENDANT SHALL PAY ALL SUMS

ORDERED BY THE COURT PRIOR TO THE

EXPIRATION OF THIS PROBATION.

=. =

DEFENDANT SHALL BE IN OFFICIAL

DETENTION AND CONFINEMENT IN THE

YAMHILL COUNTY JAIL FOR A PERIOD

OF

DEFENDANT SHALL RECEIVE CREDIT FOR

TIME SERVED ON THE ABOVE CHARGE.

/__/ SAID SENTENCE TO COMMENCE ON

SAID SENTENCE TO BE SERVED ON

>

=~

WEEKENDS COMMENCING ON

iS. we

TO

19 __—sa AT. » AND

EACH LIKE TO

PERIOD

THEREAFTER UNTIL SAID SENTENCE

IS SERVED IN FULL.

10. DEFENDANT SHALL ABSOLUTELY ABSTAIN

FROM THE USE OF ALCOHOLIC BEVERAGES

atta

+

rr

OR ANY OTHER FORM OF INTOXICANT.

DEFENDANT SHALL FOLLOW ANY PROGRAM

OF ALCOHOL REHABILITATION RECOMMENDED:

/XX/ BY HIS PROBATION COUNSELOR.

/__/ BY THE MARION-POLK-YAMHILL

COUNCIL ON ALCOHOLISM.

/__/ SAID PROGRAM TO INCLUDE THE

USE OF MONITORED ANTABUSE, IF

DEFENDANT IS MEDICALLY QUALI-

FIED.

DEFENDANT SHALL FOLLOW ANY PROGRAM

OF MENTAL HEALTH COUNSELING RECOM-

MENDED BY HIS PROBATION COUNSELOR.

DEFENDANT SHALL COMPLETE EIGHTY (80)

HOURS OF CIVIC, CHARITABLE OR

COMMUNITY ACTIVITY ON A VOLUNTEER

BASIS:

/ _/ ON OR BEFORE » 19

/XX/ AND SHALL REPORT AS REQUIRED

TO THE YAMHILL COUNTY COMMUNITY

CORRECTIONS PROGRAM.

sta

13. DEFENDANT SHALL PAY CRIMINAL IN-

JURIES COMPENSATION FEE IN THE SUM

OF $40.00.

DEFENDANT SHALL MAKE RESTITUTION

IN THE SUM OF $

SAID RESTITUTION AS RECEIVED BY

THE YAMHILL COUNTY TRIAL COURT

CLERK SHALL BE DISBURSED TO THE

VICTIM(S) LISTED ON THE SHEET

ATTACHED HERETO.

DEFENDANT SHALL REPAY THE STATE OF

OREGON IN THE SUM OF $

FOR EXPENSES INCURRED IN OBTAINING

COUNSEL FOR THE DEFENDANT.

4. DEFENDANT SHALL PAY A FINE IN THE

SUM OF $250.00.

15. DEFENDANT SHALL PAY AN ALCOHOL

EVALUATION ASSESSMENT OF $175.00.

IT IS FURTHER HEREBY ORDERED THAT

THE HEREIN ORDERED TOTAL FINANCIAL

OBLIGATION TO THIS COURT SHALL BE PAID

-20-

TO THE YAMHILL COUNTY TRIAL COURT CLERK:

{XX/ FORTHWITH.

me ,

f IN FULL ON OR BEFORE

19

{_/ AT THE RATE OF $ PER

MONTH ON OR BEFORE THE

DAY OF EACH MONTH THEREAFTER

UNTIL SAID SUM IS PAID IN FULL.

/__/ AT THE DIRECTION OF THE

PROBATION COUNSELOR.

IT IS FURTHER HEREBY ORDERED:

{.__/ SECURITY RELEASE AMOUNT POSTED

ON ,» 19

BY

BE AND THE SAME HEREBY IS

APPLIED TO THE TOTAL FINANCIAL

OBLIGATION HEREIN ORDERED ABOVE.

SECURITY RELEASE AMOUNT, IF ANY,

>

~s

BEING HELD IN THE ABOVE-ENTITLED

MATTER BE AND THE SAME HEREBY

IS EXONERATED.

= |

Zi

UPON ANY VIOLATION OF THE ABOVE-

MENTIONED LAWS OR OF THIS PROBATION

ORDER, OR ANY DIRECTION OF THE PROBATION

COUNSELOR, THIS ORDER SHALL BE REVOKED

AND:

/_/ DEFENDANT WILL BE IMPRISONED

IN THE YAMHILL COUNTY JAIL TO

SERVE THE SENTENCE HERETOFORE

IMPOSED.

/XX/ SENTENCE WILL BE IMPOSED.

DATED THIS 17TH DAY OF SEPTEMBER,

/S/ WAYNE HARRIS

DISTRICT JUDGE

CERTIFIED TO BE A TRUE COPY OF THE

ORIGINAL. TRIAL COURT ADMINISTRATOR

BY

ot%e

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

TRIAL COURT/

RESPONDENT,

AGENCY

NO. 46211 (D)

DARRELL LAMONT LOWEN,

CA A46075

)

)

)

)

V ‘ )

)

)

)

APPELLANT. )

APPEAL OR JUDICIAL REVIEW FROM:

YAMHILL COUNTY

DATE ARGUED OR SUBMITTED ON BRIEFS:

APRIL 18, 1988

BEFORE: WARDEN, PRESIDING JUDGE, AND

VAN HOOMISSEN AND GRABER, JUDGES

ATTORNEY FOR APPELLANT:

JOHN R. MILLER, SALEM

ATTORNEY FOR RESPONDENT:

THOMAS H. DENNEY, SALEM

AFFIRMED WITHOUT OPINION.

DATE FILED: MAY 11, 1988

KKK KKRKKRKREK

PREVAILING PARTY OR PARTIES: RESPONDENT

~ pm

{ ]} NO COSTS AWARDED

{ ] COSTS AWARDED TO THE PREVAILING

PARTY PAYABLE BY:

IN A CRIMINAL, POST CONVICTION RELIEF,

HABEAS CORPUS, JUVENILE OR OTHER CASE

IN WHICH A PARTY MAY BE REPRESENTED BY

APPOINTED COUNSEL ENTITLED TO COMPEN-

SATION UNDER ORS 138.500, IF THE PRE-

VAILING PARTY IS A PRIVATE PARTY AND

IS REPRESENTED BY RETAINED COUNSEL OR

APPEARED PRO SE, THE PREVAILING PARTY

IS AWARDED COSTS.

kK RRR EE

(THE FOLLOWING ENTRIES WILL BE MADE

WHEN THE APPELLATE JUDGMENT ISSUES.)

IT IS ORDERED THAT THE PREVAILING PARTY

OR PARTIES RECOVER FROM

IN THE AMOUNT OF $ , AND

ATTORNEY FEES IN THE AMOUNT OF $

=24—

IT IS FURTHER ORDERED THAT JUDGMENT BE

ENTERED IN FAVOR OF THE JUDICIAL DEPART-

MENT AND AGAINST

IN THE AMOUNT OF $ FOR

FILING FEES NOT WAIVED AND UNPAID AT

THE TIME OF ENTRY OF THE FINAL WRITTEN

DISPOSITION OF THIS CASE. ORS 21.605.

DATE SUPREME COURT DENIED PETITION FOR

REVIEW:

DATE APPELLATE JUDGMENT FILED:

0015Z:7/87

FILED

COURT OF APPEALS

MAY 11, 1988

STATE COURT ADMINISTRATOR

BY DEPUTY

-25—

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON, ) ORDER DENYING

RESPONDENT, REVIEW

V. CA A46075

LOWEN, DARRELL ena: SC $35246

PETITIONER. !

THE COURT HAS CONSIDERED THE PETITION

FOR REVIEW AND ORDERS THAT IT BE DENIED.

DATE: JULY 26, 1988.

/S/ EDWIN J. PETERSON

EDWIN J. PETERSON

CHIEF JUSTICE

COPIES TO:

DENNEY,THOMAS H ATTORNEY FOR: RESPONDENT

MILLER,JOHN R ATTORNEY FOR: PETITIONER

atthe

oe

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON, )

RESPONDENT, TRIAL COURT/

Vv. AGENCY

DARRELL LAMONT LOWEN, : NO. 46211 (D)

APPELLANT. CA A46075

APPEAL OR JUDICIAL REVIEW FROM:

YAMHILL COUNTY

DATE ARGUED OR SUBMITTED ON BRIEFS:

APRIL 18, 1988

BEFORE: WARDEN, PRESIDING JUDGE, AND

VAN HOOMISSEN AND GRABER, JUDGES

ATTORNEY FOR APPELLANT:

JOHN R. MILLER, SALEM

ATTORNEY FOR RESPONDENT:

THOMAS H. DENNEY, SALEM

AFFIRMED WITHOUT OPINION.

DATE FILED: MAY 11, 1988

Rtteteneres

PREVAILING PARTY OR PARTIES:

RESPONDENT

=

[ ] NO COSTS AWARDED

{[ ] COSTS AWARDED TO THE PREVAILING

PARTY PAYABLE BY:

IN A CRIMINAL, POST CONVICTION RELIEF,

HABEAS CORPUS, JUVENILE OR OTHER CASE

IN WHICH A PARTY MAY BE REPRESENTED

BY APPOINTED COUNSEL ENTITLED TO

COMPENSATION UNDER ORS 138.500, IF THE

PREVAILING PARTY IS A PRIVATE PARTY AND

IS REPRESENTED BY RETAINED COUNSEL OR

APPEARED PRO SE, THE PREVAILING PARTY

IS AWARDED COSTS.

kkk ehh ees

[THE FOLLOWING ENTRIES WILL BE MADE WHEN

THE APPELLATE JUDGMENT ISSUES. ]

IT IS ORDERED THAT THE PREVAILING PARTY

OR PARTIES RECOVER FROM

COSTS AND DISBURSEMENTS IN THE AMOUNT OF

$ , AND ATTORNEY FEES IN THE

AMOUNT OF $

ant.

IT IS FURTHER ORDERED THAT JUDGMENT BE

ENTERED IN FAVOR OF THE JUDICIAL DEPART-

MENT AND AGAINST

IN THE AMOUNT OF $ FOR FILING

FEES NOT WAIVED AND UNPAID AT THE TIME

OF ENTRY OF THE FINAL WRITTEN DISPOSITION

OF THIS CASE. ORS 21.605.

DATE SUPREME COURT DENIED PETITION FOR

REVIEW: JULY 26, 1988

DATE APPELLATE JUDGMENT FILED:

SEPTEMBER 16, 1988

0015Z:7/87

FILED

COURT OF APPEALS

MAY 11, 1988

STATE COURT ADMINISTRATOR

BY DEPUTY

APPELLATE JUDGMENT

at@n

CERTIFICATE OF SERVICE

I, THE UNDERSIGNED, JOHN R. MILLER,

A MEMBER OF THE BAR OF THE UNITED

STATES SUPREME COURT HEREBY CERTIFY

THAT I PERSONALLY DELIVERED THREE

CERTIFIED TRUE COPIES OF THE FORE-

GOING PETITION FOR CERTIORARI TO

THE LAW OFFICE OF DAVID FROHNMAYER,

ATTORNEY GENERAL FOR THE STATE OF

OREGON, AND VIRGINIA LINDER, SOLI-

CITOR GENERAL FOR THE STATE OF

OREGON, LEAVING SAID COPIES THEREAT

WITH AN EMPLOYEE THEREFOR ON THE

24TH DAY OF OCTOBER, 1988.

JOHN R. MILLER

ATTORNEY FOR PETITIONER

~ =

CERTIFICATE OF SERVICE

I, THE UNDERSIGNED, JOHN R. MILLER,

A MEMBER OF THE BAR OF THE UNITED |

STATES SUPREME COURT HEREBY CERTIFY

THAT I PERSONALLY DELIVERED THREE

CERTIFIED TRUE COPIES oF THE FORE-

GOING CORRECTED PETITION FOR CERTIORARI

TO THE LAW OFFICE OF DAVID FROHNMAYER,

ATTORNEY GENERAL FOR THE STATE OF

OREGON, AND VIRGINIA LINDER, SOLI-

CITOR GENERAL FOR THE STATE OF OREGON,

LEAVING SAID COPIES THEREAT WITH AN

EMPLOYEE THEREFOR ON THE 23RD DAY oF

NOVEMBER, 1988.

JOHN R. MILLER

ATTORNEY FOR PETITIONER

|