Argued and Submitted January 28, 2015
1002946CR, 1002410CR. Klamath County Circuit Court. Dan Bunch, Judge.
John Paul Evans, Deputy Public Defender, argued the cause for appellant. On the brief were Peter Gartlan, Chief Defender, and Elizabeth Daily, Deputy Public Defender, Office of Public Defense Services.
Karla H. Ferrall, Senior 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.
[270 Or.App. 288] ORTEGA, P. J.
In this consolidated criminal appeal, defendant challenges his convictions for driving while under the influence of intoxicants (DUII), ORS 813.010. Defendant assigns error to the trial court's refusal to grant his motion to dismiss for lack of a speedy trial under former ORS 135.747 (2011), repealed by Or. Laws 2013, ch 431, § 1. We conclude that of the total 26.5-month delay, 20 months were attributable to the state. Defendant did not consent to those 20 months, and the total delay was unreasonable because seven months were the result of the state's unjustified delays in producing discovery. Accordingly, we reverse and remand for entry of a judgment of dismissal.
We begin by recounting the procedural history. Defendant appeared in court for arraignment on two separate DUII cases on December 15, 2010. The court set over the cases to January 10, 2011. Defendant later filed a motion for continuance and the cases were set over two weeks to January 24.
On that date, defendant appeared and requested a 30-day continuance because defense counsel was " starting our investigation" and was " going to be requesting some additional documents from the district attorney's (DA) office." At the next hearing a month later, on February 28, defense counsel informed the court that he was still awaiting discovery. The court proposed resetting the cases for the following month, on March 28, but chose April 4 after defendant indicated a desire to attend his mother's birthday celebration in California.
On April 4, defense counsel requested another reset to May 2, because he was still " awaiting some pictures and an audio from the [DA's] office ***." Then again on May 2, the parties appeared and defense counsel informed the court that he needed an extension because he was " still awaiting [270 Or.App. 289] some discovery." Defense counsel informed the court that he intended to subpoena documents by the next hearing date. The court granted the extension.
The next hearing was set over for a week while defendant attended a funeral. On June 13, 2011, defense counsel again requested a setover because he had not yet received discovery. The court asked the state to " make a note of that on discovery." The state replied, " Yeah. These are not my--my files, Your Honor."
At the next hearing a month later on July 11, defendant informed the court that he had not received the requested " audio/videotapes" and that he had drafted a motion for a subpoena. He again requested another hearing date. A few days later, defendant filed an " ex parte motion for early production of documentary materials" in each case--including Intoxilyzer breath test results for the time span associated with his test, the police recording of the traffic stop for the first case, and pictures the officer took of the accident in the second case. In supporting declarations, defense counsel asserted that he had requested those materials on several occasions, both by e-mail or on the record, with no response from the Klamath County DA.
On August 8, 2011, the parties appeared in court again. The court refused to sign defendant's subpoena motions because it concluded that the subpoena power is for " something other than a law enforcement agency" and that the state was in possession or had control of documents held by law enforcement. Accordingly, the court expressed the belief that defendant was requesting materials that were " routine discovery" and it was ...