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State v. Vanderzanden

Court of Appeals of Oregon

October 1, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
DONALD ELMER VANDERZANDEN, Defendant-Appellant

Argued and Submitted: May 28, 2014.

D115461T. Washington County Circuit Court. Rick Knapp, Judge.

Lindsey Burrows, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jona J. Maukonen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

Page 151

[265 Or.App. 753] GARRETT, J.

Defendant and two companions, Black and Brown, traveled to a state forest in December 2011 to gather firewood. Black drove the three men in his truck. Defendant cut the firewood, and Brown loaded it into the truck. Black helped with the loading until it became too painful for him. He had a previous neck injury that was aggravated by driving on the rough road, changing a tire at the site, and loading the firewood. After several hours, Black wanted to leave because snow was beginning to fall and it would soon be dark. Black asked defendant to drive the truck because of his severe neck pain, lack of any cell phone service, and Brown's inability to use the truck's manual transmission. Defendant drove despite that his driver's license had been revoked. A sheriff's deputy stopped the vehicle on their return home.

Defendant was charged with driving while his license was revoked, in violation of ORS 811.182. At trial, defendant stipulated that he committed the act, but he raised the affirmative defense of necessity. The jury convicted defendant, and he was sentenced to three years of bench probation. On appeal, defendant raises two assignments of error regarding the trial court's jury instructions on the defense of necessity. Because we resolve the first assignment of error in defendant's favor, we reverse and remand.

In his first assignment of error, defendant argues that the trial court should have given the following jury instruction requested by defendant:

" You do not need to find that the urgency of the circumstances actually made it necessary for the defendant to drive in order to acquit him; you only need to find that the defendant reasonably believed that the urgency of the circumstances made it necessary for him to drive."

The trial court declined to give defendant's requested instruction. Instead, the court gave the following instruction, which incorporated the uniform instruction on necessity:

" To the charge of DRIVING WHILE REVOKED [defendant] has raised an affirmative defense that injury [265 Or.App. 754] or immediate threat of injury to a human being and the urgency of the circumstances made it necessary for him to ...

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