mulieri

Since we have some many people with their panties in a wad here...

The charge in this case were reduced from a misdemeanor offense to a "violation" which is a lower class of offense. Most people would say that the reduction in charged offense is a good start.

As in the case for other minor offenses, violation do not have juries involved given the *minor* offense being charged.

In certain states, an appeal may require a trial de novo in a higher magistrate, wherein a trial by jury may be allowed. However, practically, these "violation" cases are likely to be settled in pre-trial settings. Prosecutors are not exactly giving these cases a lot of detail attention...


The applicable section of Oregon law concerning violations is here for your convenience.


VIOLATIONS

Note: Section 323, chapter 1051, Oregon Laws 1999, provides:

Sec. 323. (1) Sections 7 to 29 and 34 to 39 of this 1999 Act [153.030 to 153.121, 153.125 to 153.145 and 153.992] apply only to citations issued on or after the operative date of sections 1 to 325 of this 1999 Act [January 1, 2000]. Any proceeding for prosecution of an offense commenced by the issuance of a citation before the operative date of sections 1 to 325 of this 1999 Act shall continue to be governed by the law in effect immediately before the operative date of sections 1 to 325 of this 1999 Act.

(2) Sections 57, 60 and 61 of this 1999 Act [133.066, 133.068 and 133.069] and the amendments to ORS 133.065 and 133.070 by sections 58 and 62 of this 1999 Act apply only to citations issued on or after the operative date of sections 1 to 325 of this 1999 Act. Any proceeding for prosecution of an offense commenced by the issuance of a citation before the operative date of sections 1 to 325 of this 1999 Act shall continue to be governed by the law in effect immediately before the operative date of sections 1 to 325 of this 1999 Act.

(3) Any change to the fine or penalty imposed for an offense by reason of the provisions of this 1999 Act applies only to offenses that are committed on or after the operative date of sections 1 to 325 of this 1999 Act. Any offense committed before the operative date of sections 1 to 325 of this 1999 Act shall continue to be subject to the fine or penalty under the law in effect immediately before the operative date of sections 1 to 325 of this 1999 Act.

(4) Any references to infractions in computer records or other records of the Department of Transportation, or in the computer records or other records of other agencies that enforce laws designated as infractions, that may exist or be generated on or after the operative date of sections 1 to 325 of this 1999 Act shall be considered references to violations for the purposes of this 1999 Act. References to Class A traffic infractions shall be considered references to Class A violations under section 4 of this 1999 Act [153.012]. References to Class B traffic infractions shall be considered references to Class B violations under section 4 of this 1999 Act. References to Class C traffic infractions shall be considered references to Class C violations under section 4 of this 1999 Act. References to Class D traffic infractions shall be considered references to Class D violations under section 4 of this 1999 Act. [1999 c.1051 §323]

(Generally)

153.005 Definitions. As used in this chapter:

(1) "Enforcement officer" means:

(a) A member of the Oregon State Police.

(b) A sheriff or deputy sheriff.

(c) A city marshal or a member of the police of a city, municipal or quasi-municipal corporation.

(d) An investigator of a district attorney’s office if the investigator is or has been certified as a peace officer in this or any other state.

(e) An investigator of the Criminal Justice Division of the Department of Justice of the State of Oregon.

(f) Any other person specifically authorized by law to issue citations for the commission of violations.

(2) "Violation" means an offense described ORS 153.008.

(3) "Violation proceeding" means a judicial proceeding initiated by issuance of a citation that charges a person with commission of a violation.

(4) "Traffic offense" has the meaning given that term in ORS 801.555. [1999 c.1051 §2]

153.008 Violations described. (1) Except as provided in subsection (2) of this section, an offense is a violation if any of the following apply:

(a) The offense is designated as a violation in the statute defining the offense.

(b) The statute prescribing the penalty for the offense provides that the offense is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The statute may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment.

(c) The offense is created by an ordinance of a county, city, district or other political subdivision of this state with authority to create offenses, and the ordinance provides that violation of the ordinance is punishable by a fine but does not provide that the offense is punishable by a term of imprisonment. The ordinance may provide for punishment in addition to a fine as long as the punishment does not include a term of imprisonment.

(d) The prosecuting attorney has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.566.

(e) The court has elected to treat the offense as a violation for purposes of a particular case in the manner provided by ORS 161.568.

(2) Conviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime. [1999 c.1051 §3]

153.012 Violation categories. Violations are classified for the purpose of sentencing into the following categories:

(1) Class A violations;

(2) Class B violations;

(3) Class C violations;

(4) Class D violations;

(5) Unclassified violations as described in ORS 153.015; and

(6) Specific fine violations as described in ORS 153.015. [1999 c.1051 §4]

153.015 Unclassified and specific fine violations. (1) An offense described in the Oregon Revised Statutes that is designated as a violation but does not specify the classification of the violation is an unclassified violation. An unclassified violation is a Class B violation.

(2) A specific fine violation is any offense described in the Oregon Revised Statutes that:

(a) Is not designated as a crime or as a class A, B, C or D violation;

(b) Is not punishable by a term of imprisonment as a penalty for committing the offense; and

(c) Is punishable by a specific fine as the penalty for committing the offense. [1999 c.1051 §5]

153.018 Schedule of penalties; distribution of proceeds. (1) The penalty for committing a violation is a fine. The law creating a violation may impose other penalties in addition to a fine but may not impose a term of imprisonment.

(2) Except as provided in this section, a sentence to pay a fine for a violation shall be a sentence to pay an amount not exceeding:

(a) $600 for a Class A violation.

(b) $300 for a Class B violation.

(c) $150 for a Class C violation.

(d) $75 for a Class D violation.

(e) The amount otherwise established by law for any specific fine violation.

(3) If no special corporate fine is specified in the law creating the violation, a sentence to pay a fine for a violation committed by a corporation shall be in an amount not to exceed twice the fine established under this section for a violation by an individual. If a special corporate fine is specified in the law creating the violation, the sentence to pay a fine shall be governed by the law creating the violation.

(4) If a person or corporation has gained money or property through the commission of a violation, instead of sentencing the defendant to pay the fine provided for in subsection (2) or (3) of this section, the court may sentence the defendant to pay an amount fixed by the court, not exceeding double the amount of the defendant’s gain from the commission of the violation. For the purposes of this subsection, the defendant’s gain is the amount of money or the value of property, as determined under ORS 164.115, derived from the commission of the violation, less the amount of money or the value of property, as determined under ORS 164.115, returned to the victim of the violation or seized by or surrendered to lawful authority before the time sentence is imposed. [1999 c.1051 §6]

InkUnderNails

Effective 1/1/2000 things that were previously crimes became violations. Since we now have renamed them, we can ignore the 6th amendment as it does not apply to violations.

Sort of like the 4th amendment does not apply because it is an administrative search, and not a search search.

I have an idea, let's pass a state law that speech will now be called talking. The 1st amendment does not say anything about freedom to talk.

Yes, my briefs are in a wad about a lot of stuff.

T.J. Bender

In fairness, the 7th being discarded due to inflation is nothing new. I think that Supreme Court decision dates back to 1869-ish.

FlyingHoustonian

Who said anything about 12 jurors?
I've seen many a traffic, or"lesser offense" trial, with 3, 5 or 6 jurors.

Not every jury trial is with 12.

For example some courts sit a jury of 5 who hear multiple cases throughout the day.

InkUnderNails

I do not doubt that and it seems reasonable. However, I can not find that in the text of the constitution nor can I find permission to do so in the constitution.

I do find a process by which the constitution can be changed if parts of it are found to be unworkable. It does not include a panel of judges saying it is changed because they want it to be changed.

RichardKenner

The 4th amendment certainly applies to administrative searches. But it's always important to keep in mind that the 4th amendment doesn't ban all searches, only "unreasonable" ones.

InkUnderNails

And it also defines the terms of reasonableness. Richard, we have disagreed on this before and I respect your opinion. It is shared by a lot of people, just not me.

My argument, minority view.

The restraint: "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, ...."

The allowable exception and what makes it reasonable: "...and no Warrants shall issue,..."

The justification for the warrant: "...but upon probable cause, supported by Oath or affirmation, ..."

And the restriction on what the warrant may include: "...and particularly describing the place to be searched, and the persons or things to be seized."

Country boy, IANAL interpretation: Do not go through my stuff without a paper from a court that says there is a good reason and then you can only look at what the paper says.

The administrative search is none of that. IMO, of course.

Combat Medic

How is voir dire handled with grand juries where the same panel hears a number of cases?
Also, I find it interesting that the solution to the problem of finding one jury that is acceptable to all is to throw out the jury.

sbagdon

There's been at least one call for all people arrested to demand a jury-trial, as it would create a "denial-of-service of justice", everything would grind to a halt. Yet it's one nasty game chicken, in that if you are judged guilty by your peers, you can bet the judge is going to give you max.

My experience with jury-trials has been that if it gets to the point of a jury, one of the two parties (whether civil, criminal, etc) is expecting something unreasonable. Either someone is asking too much, or someone is asking too little.

Up here in MI, I'm hearing that speed infractions (which can greatly impact insurance rates, for years) are being contested by the threat of a jury-trial, and being pled/negotiated down to a non-moving infraction (usually with a higher fee). Yet the legal fees and pled violoation is less then the insurance costs increase, so it's a financial decision to fight that way.

Guess the point is, my perception is that jury-trials (whether to ask for one, or actually get to that point after asking for one), is about strategy, not tactics or operations.

T.J. Bender

It's certainly a bit of judicial activism, but look at it from the point-of-view of the 1869 Supreme Court. The nation had come out of Civil War five years prior, a politically and emotionally contentious "rebuilding" was taking place in the former Confederate states, and here comes a lawsuit based upon a provision of the Constitution that, if upheld, would have crippled the court system even back then due to inflation. The Court's best option was to proactively dismiss that unworkable element of the Constitution that, while important when written, had lost almost all of its relevance, as there was no monarchy ruling in favor of itself. Their other option, of course, would have been to require the jury trial, thus opening the floodgates and bringing an already-overworked court system to its knees. That, in turn, would have forced a Constitutional amendment over something ridiculously trivial, a process which can easily take seven years on a good day, and would realistically have taken much longer because, well, the states had bigger things to worry about.

Typically, I'm against judicial activism. In that case, though, it was the only decision that made sense considering the circumstances surrounding it.

*Edit to add: while it does set kind of a frightening precedent to allow the Court to effectively nullify parts of the Constitution, it's one that the Court has, wisely, never employed.

InkUnderNails

[Bold mine]

This applies to almost every case in which the clear language of the constitution is bypassed by carving out exceptions. No matter how trivial it may seem and how necessarily expedient it may appear, neither justifies actions against the language of the constitution as there is nothing in the constitution that permits doing so.

The administrative search that some of use bemoan on this forum was originally carved out so that building inspectors could search for code violations in an apartment building without the owner of the building being present or the inspector having to get a warrant for the search. At the time it made sense considering the circumstances.

That decision is the original basis for the TSA putting its hands in out pants and performing law enforcement type pat downs without the benefit of probable cause. Once an exception is made, it is continually expanded to cover more and more situations.

CaptainMiles

Wow. Just wow.

Love your argument. I can use it too.

The cost of maintaining and operating the TSA is higher than <insert value of an aircraft and lives per decade>--far, far higher--and it is a colossal waste of taxpayer dollars to do so.

RichardKenner

Grand juries don't decide guilt and don't even hear the defense side of the case. Very different situation.

RichardKenner

Right. There is definitely the opposing school of thought. The argument against it is that the word "Warrant" was a generally-understood term at the time which applied to a specific British practice and that the term doesn't precisely mean what we now call a "search warrant". And, of course, administrative searches aren't the only ones that don't require a search warrant. Other exceptions are things in plain sight (perhaps one could argue that it's not a "search"), situations where there's no expectation of privacy (e.g., one's front porch or discarded trash), a search incident to an arrest, a Terry stop, "exigent circumstances" (e.g., somebody calling for help), and so on.

T.J. Bender

Have you actually read a single thing I've posted about the TSA on this forum? I despise that agency, the people who run it, and most of the people who work for it. It is a multi-billion dollar charade, and should be dismantled.

Upholding the Seventh Amendment, something the Supreme Court opted against roughly 150 years to do, would have crippled the Reconstruction-era courts and allowed for more frivolous lawsuits that we can even dream of in today's "if you don't like the answer, sue" society.