State v. Dumont
State v. Dumont
Opinion of the Court
Defendant appeals her convictions for driving under the influence of intoxicants, ORS 813.010, and fleeing or attempting to elude a police officer, ORS 811.540.
Defendant filed a pretrial motion to suppress all evidence obtained by the officers that was related to the charged offenses. The trial court held a hearing on the motion. Defendant filed a supplemental memorandum at the time of the hearing, in which her attorney argued:
“[Smith] initiated a stop based upon the presence of Charles Barkley in the front passenger seat. [Smith] initiated a stop unrelated to the commission of a crime, therefore the initial stop was either 1) not a significant restriction or interference with Defendant’s individual liberty or freedom of movement and did not constitute a seizure, and Defendant had the right to walk away without having further contact with the police officer, or 2) a seizure based upon ORS 811.540(l)(b)(B), which must have required a stop based upon reasonable suspicion of the Defendant’s criminal activity or arrest based upon probable cause to believe Defendant had committed a crime, or 3) was converted into a stop of Constitutional proportion by the show of authority by [Smith].”
At the suppression hearing, defendant’s attorney conceded that ORS 811.540 prohibits a motorist from ignoring an officer’s command to remain at the scene of a vehicle
“THE COURT: Are you contending that the attempting to elude statute is unconstitutional?
“ [COUNSEL]: I believe that under an equal protection argument that the new attempt to elude on foot statute, * * * which now does not guarantee the driver the same rights as a pedestrian ....
“THE COURT: But that is not what she has been cited for. I realize the amendment, but she has been cited under the vehicle code.
“[COUNSEL]: Right, the vehicle code says ....
“THE COURT: ... Right, if you get out and walk away.
“[COUNSEL]: Right that that is now a crime. So if I have the right under and I will go back to State v. Holmes[, 311 Or 400, 813 P2d 28 (1991)]. That is where they talk about a pedestrian having, you know, the opportunity to basically walk away from a police encounter. Because it is [noncoercive] and non-restrained that if a police officer walks up to an individual on the street and says that I want to talk about this that the individual has the right to walk away. But if you are in a vehicle and there is no reasonable suspicion that a crime has been committed you do not have that simple right to walk away. And therefore, the pedestrian and the person in the vehicle are being treated differently. And we make a crime for the person who walks away in the vehicle. So I believe there is an unconstitutional equal protection argument * * * to be made as applied to [defendant] in this case.” (Emphasis added.)
The trial court denied defendant’s motion to suppress. In a written order, the court ruled that “ORS 811.540 is constitutional as applied to a driver who, having been directed to stop by an officer, stops the vehicle, exits and walks away.”
“That that charge as applied to [defendant] in this matter is unconstitutional as applied. * * * [B]asingthat simply upon the fact that there was yes a stop of Defendant that was lawful, but a stop on the street without being in a motor vehicle an individual has a simple right to walk away without committing a crime. What the legislature has done in this case, is they have made it a crime to walk away when there is no reasonable suspicion, there is no evidence that a crime has been committed and they are treating [people] in vehicles differently than they are treating people in — a pedestrian on the street. And that this would violate Article [I, s]ection 9[,] of the Oregon Constitution, Article 14 [sic] of the U.S. Constitution and I believe Article 4 [sic] of the U.S. Constitution.” (Emphasis added.)
The trial court did not explicitly address the oral demurrer, thereby implicitly overruling it. Defendant then waived a jury trial and was convicted on stipulated facts in a trial to the court.
As noted, defendant’s first argument on appeal is that, as a matter of statutory construction, ORS 811.540 does not prohibit a driver from ignoring a police officer’s command to remain at the scene of a vehicle stop unless the officer reasonably suspects that the driver has committed an offense. It is readily apparent that that argument is not preserved. Although the argument appeared in defendant’s memorandum in support of the motion to suppress, defendant’s attorney conceded at the suppression hearing that, according to the plain language of the statute, defendant violated ORS 811.540 when she ignored the officer’s command to stop after leaving her vehicle. In making that concession, defendant failed to preserve her current argument. If the trial court erred in construing the statute, defendant invited that error. See State v. Popp, 118 Or App 508, 510, 848 P2d 134 (1993). Accordingly, we decline to further consider it.
Defendant’s second argument poses a different problem. Specifically, defendant argues that when Smith “attempted to further detain defendant under ORS 811.540, by ordering her to stop when she started to walk away, he initiated a ‘seizure’ in the sense of Article I, section 9.” According
Defendant’s attempt to revise her constitutional argument runs afoul of the Supreme Court’s preservation jurisprudence. In State v. Wyatt, 331 Or 335, 340-43, 15 P3d 22 (2000), the trial court excluded a defense witness’s testimony as a sanction for a discovery violation. At trial, the defendant did not deny the discovery violation but argued only that the need for the evidence had not been apparent earlier. On appeal, the defendant argued that there had been no discovery violation and that the trial court had erred in failing to impose a less onerous sanction. The court held that the shift in the defendant’s argument violated the requirement that “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to consider and correct the error immediately, if correction is warranted .’’Id. at 343.
Here, as in Wyatt, the shift in defendant’s focus is not merely a technical matter of emphasis. Defendant now
Affirmed.
ORS 811.540 provides, in part:
“(1) A person commits the crime of fleeing or attempting to elude a police officer if:
“(a) The person is operating a motor vehicle; and
“(b) A police officer who is in uniform and prominently displaying the police officer’s badge of office or operating a vehicle appropriately marked showing it to be an official police vehicle gives a visual or audible signal to bring the vehicle to a stop, including any signal by hand, voice, emergency light or siren, and either:
“(A) The person, while still in the vehicle, knowingly flees or attempts to elude a pursuing police officer; or
“(B) The person gets out of the vehicle and knowingly flees or attempts to elude the police officer.”
Defendant’s third assignment of error asserts that the trial court erred in failing, sua sponte, to grant a motion for judgment of acquittal on the charge of attempting to elude because there was insufficient evidence to convict defendant of that crime. We reject that unpreserved argument without discussion.
The state asks us to reject defendant’s second assignment of error on the ground that the arguments defendant made to the trial court could not properly be raised by demurrer. Because, as explained below, the assignment of error is not preserved, we need not address the state’s procedural objection.
In a colloquy with the trial court, counsel acknowledged that “[t]he statute appears to read that you cannot walk away from a stop regardless of whether the stop is lawful or unlawful.” Counsel also conceded that, “[b]y the verbiage of the statute,” drivers who walk away from any stop violate the statute.
Reference
- Full Case Name
- STATE OF OREGON v. MELVIRA DUMONT
- Cited By
- 3 cases
- Status
- Published