Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
#Judicial consent hot scene trial#
Defendant assigns error to the trial court's refusal to consent to defendant's selective waiver of a jury trial on the reckless driving charge.Ĭonviction for reckless driving vacated and remanded otherwise affirmed.ĭefendant appeals a judgment of conviction for reckless driving, ORS 811.140, and driving under the influence of intoxicants (DUII), ORS 813.010. Seeking reversal as to both charges, defendant argues that the court's refusal was a violation of Article I, section 11, of the Oregon Constitution. "(c) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance." "(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant or "(a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150 "(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person: We vacate and remand the judgment as to the conviction for reckless driving so that the trial court may reconsider whether to consent in light of the standards elucidated in an intervening decision, State v. "(1) A person commits the offense of reckless driving if the person recklessly drives a vehicle upon a highway or other premises described in this section in a manner that endangers the safety of persons or property. "(2) The use of the term 'recklessly' in this section is as defined in ORS 161.085. "(3) The offense described in this section, reckless driving, is a Class A misdemeanor and is applicable upon any premises open to the public."Īrticle I, section 11, provides, in part, that criminal defendants "in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone" I. The facts that are material to the waiver issue are undisputed. We first recount trial testimony about the facts giving rise to the charges and then recount the pretrial proceedings giving rise to the appeal. #Judicial consent under the desk scene trial# Oregon State Trooper Ledbetter responded to a 9-1-1 call reporting a disabled vehicle on the shoulder of I-5. The caller had seen defendant standing outside of his truck, "staggering around" and "waving his hands above his head * * * motioning at cars like he needed help." The caller had stopped, spoken with defendant, and concluded that defendant was intoxicated and out of gas. Ledbetter arrived at the scene to find defendant asleep in his truck. The trooper smelled an "overwhelming odor" of alcohol emanating from the truck's interior. He saw an open can of beer sitting in the center console, several unopened beer cans on the passenger-side floorboard, and a marijuana pipe on the passenger-side seat. Defendant was disoriented, unsteady, and unable to safely perform field sobriety tests. Defendant made a number of incriminating statements, including an admission that he had started drinking at home before driving. He consented to a breath test, and it indicated that his blood-alcohol content was 0.24 percent. Defendant was charged with DUII and reckless driving. The witness testified that defendant told her that he had been out "partying" and that his truck had run out of gas. She testified that defendant had offered her 20 dollars in cash to get gas for him. She declined and dialed 9-1-1.ĭefendant's statements were recorded and submitted as evidence at trial. #Judicial consent under the desk scene trial#.