State v. Massey

Court of Appeals of Oregon

State v. Massey

634 P.2d 490, 54 Or. App. 192, 1981 Ore. App. LEXIS 3350

CourtCourt of Appeals of Oregon

DecidedOctober 12, 1981

DocketL 105991, CA 19705

StatusPublished

Cited by1 cases

This text of 634 P.2d 490 (State v. Massey) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Massey, 634 P.2d 490, 54 Or. App. 192, 1981 Ore. App. LEXIS 3350 (Or. Ct. App. 1981).

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Opinion

BUTTLER, P. J.

In this proceeding charging defendant with driving while under the influence of intoxicants, ORS 487.540, the state appeals from an order of dismissal entered by the district court after the judge stated he would allow defendant’s motion to suppress all evidence relating to defendant’s refusal to submit to a breathalyzer test on the ground that ORS 487.805(4)¹ permitting such evidence is unconstitutional. When the state' refused to proceed further, defendant’s motion to dismiss was granted without objection by the state.

At the outset, we are confronted with the scope of appellate review of a judgment of dismissal. Although there is language in the body of the opinion in State v. Caruso, 289 Or 315, 613 P2d 752 (1980), which suggests the scope of such an appeal does not include orders which precede the order of dismissal (289 Or at 319), the last footnote indicates that the rule enunciated in the body of the opinion does not apply "when appealable orders are followed by dismissal.” 289 Or at 317, n 6. A pretrial order suppressing evidence is appealable under ORS 138.060(3).

However, the record here does not disclose a suppression order. There is only the notation on the back of the citation: "Dismissed - failure to proceed.” The scope of review, then, is limited to whether the trial court properly dismissed the case on defendant’s motion, without objection by the state, after the state advised the court it would not proceed further.

The dismissal was not erroneous, and we do not reach the merits² of the trial court’s oral ruling.

Affirmed.

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BUTTLER, P. J.

In this proceeding charging defendant with driving while under the influence of intoxicants, ORS 487.540, the state appeals from an order of dismissal entered by the district court after the judge stated he would allow defendant’s motion to suppress all evidence relating to defendant’s refusal to submit to a breathalyzer test on the ground that ORS 487.805(4)¹ permitting such evidence is unconstitutional. When the state' refused to proceed further, defendant’s motion to dismiss was granted without objection by the state.

At the outset, we are confronted with the scope of appellate review of a judgment of dismissal. Although there is language in the body of the opinion in State v. Caruso, 289 Or 315, 613 P2d 752 (1980), which suggests the scope of such an appeal does not include orders which precede the order of dismissal (289 Or at 319), the last footnote indicates that the rule enunciated in the body of the opinion does not apply "when appealable orders are followed by dismissal.” 289 Or at 317, n 6. A pretrial order suppressing evidence is appealable under ORS 138.060(3).

However, the record here does not disclose a suppression order. There is only the notation on the back of the citation: "Dismissed - failure to proceed.” The scope of review, then, is limited to whether the trial court properly dismissed the case on defendant’s motion, without objection by the state, after the state advised the court it would not proceed further.

The dismissal was not erroneous, and we do not reach the merits² of the trial court’s oral ruling.

Affirmed.

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Bluebook (online)

634 P.2d 490, 54 Or. App. 192, 1981 Ore. App. LEXIS 3350, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-massey-orctapp-1981.

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