Argued and submitted on September 27, 2012.
Douglas County Circuit Court 07CR0593MI, George William Ambrosini, Judge.
Meredith Allen, Senior Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services.
Andrew M. Lavin, 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 Wollheim, Presiding Judge, and Nakamoto, Judge, and Edmonds, Senior Judge.
Defendant was convicted of one count of driving under the influence of intoxicants (DUII), ORS 813.010, a misdemeanor. On appeal, defendant assigns error to the trial court's denial of his motion to dismiss for lack of a speedy trial. Defendant argues that the state failed to bring defendant to trial within a "reasonable period of time" as required by ORS 135.747. For the following reasons, we affirm.
We are bound by the trial court's findings of fact so long as there is evidence in the record to support those findings. State v. Ehly, 317 Or 66, 75, 854 P.2d 421 (1993). We review the trial court's determination of the reasonableness of the delay in bringing a defendant to trial for legal error. State v. Doak, 235 Or.App. 351, 356, 231 P.3d 1181, rev den, 349 Or 171 (2010). See State v. Johnson, 339 Or 69, 86-87, 116 P.3d 879 (2005) (rejecting the application of the abuse of discretion standard in reviewing the trial court's reasonableness determination under ORS 135.747).
The relevant historical and procedural facts are as follows. On March 17, 2007, Deputy Dodds stopped defendant for speeding and observed a variety of signs that defendant was intoxicated. Based on defendant's driving and mannerisms, Dodds believed that he had probable cause to arrest defendant, and he issued defendant a citation for one count of DUII. In the process of taking defendant into custody, Dodds asked defendant to get out of his car, and defendant refused. Dodds, consequently, had to grab defendant's arm to remove him from the car, at which point defendant "squared off" as if to fight, prompting Dodds to use pepper spray on defendant. After defendant was arrested, he submitted to a breath test, and the test disclosed that defendant's blood alcohol content (BAC) was 0.24 percent.
On March 28, 2007, defendant's citation was entered into the Oregon Judicial Information Network (OJIN). Defendant was arraigned on June 4, 2007. Defendant pleaded not guilty, and the court set the trial date for August 2. Shortly thereafter, on June 25, defendant filed a motion to suppress evidence of his breath test. On July 23, the parties appeared at the time set for a hearing on defendant's motion to suppress. The trial court did not rule on defendant's motion to suppress and, instead, allowed the disposition of this case to "trail" the disposition of his unrelated, then-pending felony case.
Almost two years later, on May 21, 2009, defendant's felony case was resolved. The court held a status check hearing on June 15 and, at that hearing, set a trial date of November 3, 2009, for defendant's DUII charge. The trial court also scheduled a hearing on defendant's motion to suppress, originally filed in 2007, for October 26, 2009. At the October 26 hearing, defendant presented evidence on his motion. During argument, the state relied on a case that was not mentioned in its brief in response to defendant's motion. Defendant then requested additional time to file supplemental briefing to respond to the state's additional authority and to raise an additional issue in support of his motion to suppress, which the court granted. Because the trial date was set for the next week, on November 3, defendant also requested that the trial date be continued for a week. The court allowed defendant to submit his supplemental briefing by November 9 and the state to submit its response by November 23. The court also set over the trial date from November 3, 2009, to February 9, 2010, because defendant's supplemental motion to suppress would require an additional evidentiary hearing. Defendant filed his supplemental briefing on November 3, and the court granted defendant's motion to suppress on December 16, 2009.
For some reason, the February 9, 2010, trial date was not entered in OJIN. On February 10, however, the court scheduled a status check hearing for March 15. On March 8, a week before the status check hearing, the state filed a motion to reconsider the court's ruling on defendant's motion to suppress based on a newly issued Supreme Court decision reversing a case on which the trial court had based its ruling. The next day, on March 9, the court set over the March 15 status check hearing to April 19 and scheduled a hearing on the state's motion to reconsider for April 12. At the April 12 hearing, the court denied the state's motion to reconsider. On April 19, at the status check hearing, the court set the trial date for May 27, 2010.
On May 4, defendant filed a motion to dismiss for lack of a speedy trial. In his motion, defendant argued that the case was subject to dismissal for lack of a speedy trial under Article I, section 10, of the Oregon Constitution and under the speedy trial statute, ORS 135.747. Specifically, defendant argued that the state had failed to bring him to trial within a reasonable time because the misdemeanor charge had been pending for 38 months.
On May 12, the court held a hearing on defendant's motion to dismiss. At the hearing, defendant acknowledged that 22 months of the total amount of delay was due to his agreement to continue the case until after the disposition of his unrelated, then-pending felony case. Defendant asserted, however, that the remaining 16 months of delay had to be attributed to the state and that that delay was unreasonable. Before ruling on defendant's motion, the court expressed some concern that defendant's motion did not indicate that the 22-month period of delay was attributed to defendant instead of the ...