The DCS-SQ/CDO Demurrer that WILL NOT Win (but you should file it anyway)
Here’s the demurrer. It applies when CDO factors and the SQ factor are contained within the same count of DCS/MCS or PCS. Winning would be dependent on a finding that sentence enhancement factors such as “the defendant was in possession of more than 150 grams of marijuana” are elements — and not mere sentence enhancements — of enhanced versions of delivery, manufacturing or possession. Under current Oregon Court of Appeals case law, they are not elements. Therefore, the trial judge is required by her oath to follow the law to deny this demurrer. Moreover, unless something changes, I wouldn’t expect an appellate attorney to even bother briefing it. See the demurrer itself for the full and complete argument.
As I’ve stated in a footnote, the Oregon Supreme Court — in a case called St v. Reinke – is likely to address whether those types of sentence-enhancers are in fact elements. Well, let me be precise. The OSC has addressed whether offense-specific enhancements are elements under Article I, section 11, of the Oregon Constitution. And the OSC has concluded: usually. However, none of the OSC analysis ever seems to make it into COA opinions on this issue.
Reinke is set to be argued on May 3, 2012. If you file this demurrer Monday, lose, go to trial, lose, and file the notice of appeal in the next month or two, there’s a good chance the OSC will issue an opinion before the appellate attorney even has to decide whether to brief it. And if Mr. Reinke prevails, then there’s a good chance not only that your client will win on appeal, but after a successful appeal, it would be too late for the state to reindict. (This is a demurrer after all; reversal on these grounds means dismissal of the indictment.)
I understand why this is hard for some lawyers. Filing a motion just to tell the court they are obligated to deny it. If this is the only issue you’ve got at trial, then you’ve got nothing. But sometimes nothing can be a real cool hand.
I talk about demurrer timing issues at length in the OCDLA Trial Notebook. A new edition will be available in April, and I urge people to order it now. Go to ocdla.org and click on publications and scroll down to The Trial Notebook.
But assuming you can’t wait until April, then here’s a taste of what I wrote.
Practice Tip
When determining when to file a demurrer (or a motion in arrest of judgment), it helps to know the local rules (written and unwritten) of the county in which it would be filed. Some counties – and some judges – will not consider a demurrer filed after jeopardy has attached if the demurrer is based strictly on statutory grounds. Unless it’s a demurrer that can be re-filed as a motion in arrest of judgment, a judge’s refusal to consider a demurrer that was filed more than 10 days after arraignment may effectively defeat the demurrer, leaving no grounds for appeal.
A defense attorney should ask a number of questions before deciding when to file the demurrer:
1. Will the prosecutor be able to fix the problem?
2. If the prosecutor believes he or she will have to re-indict, will the demurrer nevertheless strengthen my hand in negotiations?
3. Will it get my client out of custody, even if he or she will be re-indicted later?
4. Will the judge refuse to consider a late demurrer, thereby depriving my client of any benefit of filing it?
5. If there is a 90-day speedy trial issue, will the state be able to re-indict and get the case to trial in time to satisfy the 90-day demand?
6. Will a judge refuse to grant my demurrer on the merits, thereby giving my client an issue on appeal he or she might otherwise not have had?
There is often no right answer on when to file the demurrer: it depends on your client, the grounds for demurring, the facts of the case, the prosecutor, the county, and the judge. As the best defense attorneys have long said about the evidence code, “I may not object to the introduction of evidence that I could have objected to, but it’s my choice; I always know when I can object, and the grounds for doing so, even when I choose not to.” The same is true for demurrers and the decision regarding when to file. Do what you think is best, but know the reasons why.
Brook, when you’ve got a strictly technical demurrer on grounds that don’t render the trial unfair, then yes, the judge is going to refuse to consider the merits when you file it midtrial. As, frankly, she should. But here’s the beauty of this demurrer: while a prosecutor could reindict based on this demurrer, in my experience, he won’t. Especially not while case law is against you. So you file it timely, you lose it, and then maybe your client’s convictions will be overturned in 2-3 years.
Ryan, can you explain how you get around the timeline element of demurrers? The way I read the statute, it says demurrers need to be filed at the time of arraignment or other such time the judge shall provide. The prosecutor tries to shoot down my demurrer by arguing the statute, and with state v. Bonebreak (mistrial demurrer was not timely). I argue in response that the judge still has discretion to hear them later if she wants to …. But then I’m leaving a hyper technical legal issue up to the whims of a trial judge. Your thoughts?
Err, midtrial, not mistrial. Thanks autocorrect.