Argued and submitted on October 23, 2012.
Klamath County Circuit Court 0200995CR Cameron F. Wogan, Judge.
Bronson D. James argued the cause for appellant. With him on the brief was JDL Attorneys LLP.
David B. Thompson, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
Defendant appeals a judgment of conviction for driving while under the influence of intoxicants (DUII) and challenges the trial court's denial of her demurrer to the accusatory instrument, a 2007 district attorney's information, and her motion to dismiss the information. She contends that the information was void when it was filed based on the prohibition against double jeopardy or was ineffective because the state failed to seek leave to file it under ORS 135.670(1). Alternatively, she argues that the information was defective because it did not on its face contain allegations of facts that would establish that the prosecution was timely commenced. We agree with defendant's alternative argument, and so we reverse and remand with instructions to the trial court to enter an order granting defendant's demurrer.
This case is before us for a third time, and the relevant facts are entirely procedural. On April 20, 2002, defendant was issued uniform citations and complaints for DUII and attempting to elude police. Defendant was then charged by way of a district attorney's information on April 22. That information was superseded by an indictment filed on April 30, again charging defendant with felony attempt to elude and misdemeanor DUII for the April 20, incident. After defendant successfully demurred to that indictment, the state filed an "Amended Indictment" in November 2004, which again charged the same April 2002 offenses. Defendant again demurred and moved to dismiss, arguing that the amended indictment started a new case and, with respect to the DUII charge, was filed beyond the two-year statute of limitations. The trial court overruled the demurrer and denied the motion to dismiss. In 2005, defendant entered a conditional guilty plea to the DUII charge, with the state's dismissal of the felony attempt to elude charge. She then appealed her DUII conviction arising from the 2004 indictment.
Although the 2004 indictment, on its face, charged crimes that had occurred more than two years before its issuance, it did not contain allegations of "any facts that would demonstrate that the state commenced the prosecution" in a timely fashion. State v. Gruhlke, 214 Or.App. 169, 170, 162 P.3d 380 (2007). The indictment, we held, did not satisfy the requirements of ORS 132.540(1)(c). Id. Under that statute, an indictment is sufficient if it can be understood to allege that the crime "was committed at some time prior to the finding of the indictment and within the time limited by law for the commencement of an action therefor." We accepted the state's concession in Gruhlke that "the trial court erred in failing to dismiss the indictment, " and we reversed and remanded defendant's 2005 conviction. 214 Or.App. at 170.
In the meantime, while defendant's appeal in Gruhlke was pending, the state filed yet another accusatory instrument in May 2007 titled, "AMENDED INFORMATION OF DISTRICT ATTORNEY." That information again charged defendant with DUII for the same April 20, 2002, incident. It also included the following additional allegation:
"The state further alleges that the prosecution was originally commenced and consistently maintained thereafter prior to the expiration of the original statute of limitations."
Once we decided Gruhlke and remanded the case to the trial court, defendant sought dismissal of both the 2004 indictment and the 2007 information because they each alleged that defendant had committed the DUII offense more than two years--the limitation period for misdemeanors--before the dates of the accusatory instruments. In response, the state argued that the 2004 indictment was superseded by the 2007 information, which in turn had cured the pleading deficiency that plagued the 2004 indictment.
In 2008, the trial court denied defendant's motion to dismiss and entered an amended judgment of conviction, which defendant appealed. We eventually vacated the judgment upon a joint motion of the parties, because the plea for that conviction was deficient. We then remanded the case to the trial court a second time, in March 2010.
On remand, defendant had new defense counsel and relitigated the propriety of the 2007 information through another demurrer and motion to dismiss. The state argued on the merits that the trial court should adhere to its ruling in 2008. The court did so, again denying defendant relief, but it issued two written opinions explaining why it was rejecting defendant's arguments. ...