State v. McGilchrist
This text of 643 P.2d 1319 (State v. McGilchrist) 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.
Opinion
The state appeals from a pretrial order dismissing a complaint charging defendant with assault in the fourth degree. ORS 163.160.1 The trial court held that the assault charge was barred under the provisions of ORS 131.515(2)2 because of defendant’s former prosecution in the Municipal Court of Milwaukie for the traffic offense of driving under the influence of intoxicants. We reverse and remand.
Defendant was charged in the district court of Clackamas County with assault in the fourth degree on January 27, 1981, and was served on February 12, 1981, with a uniform traffic citation charging her in Milwaukie Municipal Court with driving under the influence of intoxicants. Both offenses occurred on January 14, 1981, when defendant, while driving her automobile, struck a pedestrian. She pled guilty3 to the DUII charge and then moved in the district court to dismiss the assault charge on the ground that the state was barred from prosecuting her under the terms of ORS 131.515(2). That motion was granted, giving rise to this appeal.
The record does not disclose whether the DUII offense was a first offense, a Class A traffic infraction, ORS 487.540 (amended by Or Laws 1981, ch 803, § 15; ch 806, § 3),4 or whether defendant was charged with and pled guilty [89]*89to a second such offense, prosecuted and punished as a Class A misdemeanor. Former ORS 484.3655 (repealed by Or Laws 1981, ch 803, § 26). Given that state of the record, and the trial court’s finding that defendant was charged with and pled guilty to DUII, “a traffic offense” rather than a traffic crime, we conclude that ORS 131.515(2) (n 2, supra) is not applicable. ORS 153.585(1), formerly ORS 44.395(1), provides:
“(1) Notwithstanding ORS 131.505 to 131.535, if a person commits both a crime and a traffic infraction as part of the same criminal episode, the prosecution for one offense shall not bar the subsequent prosecution for the other. However, evidence of the first conviction shall not be admissible in any subsequent prosecution for the other offense.”6
Accordingly, the order dismissing the complaint is reversed and remanded for trial.
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Cite This Page — Counsel Stack
643 P.2d 1319, 57 Or. App. 86, 1982 Ore. App. LEXIS 2818, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-mcgilchrist-orctapp-1982.