# Petition for Writ of Certiorari — Lowen v. Oregon

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0492%3A1

## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1989
- **Citation:** 489 U.S. 1012

## Text

| 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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385002_0492%3A1. Public record. Not legal advice.