appellant's amended petition for reconsideration fled
April 26, 2017.
Affirmed without opinion March 8, 2017. 284 Or.App. 315.
County Circuit Court D143941M, D151118M Donald R. Letourneau,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Zachary Lovett Mazer, Deputy Public Defender, Offce of Public
Defense Services, for petition.
DeVore, Presiding Judge, and Garrett, Judge, and Duncan,
Judge pro tempore.
Summary: Defendant and the state petition for reconsideration
of State v. Washington, 284 Or.App. 315, 391 P.3d 1011
(2017), which affirmed defendant's conviction for
interfering with a peace officer (IPO), ORS 162.247, without
a written opinion. The parties agree that, under the Supreme
Court's decision in State v. McNally, 361 Or. 314, 392
P.3d 721 (2017), which was issued after Washington,
defendant's conviction for IPO should be reversed because
the conduct upon which the conviction was based constituted
"passive resistance, " which is expressly excluded
from the definition of IPO. ORS 162.247 (3) (b) .
Held: Under McNally, "passive resistance"
refers to "noncooperation with a lawful order of a peace
officer that does not involve active conduct." 361 Or at
339. Because there was no evidence that defendant's
conduct constituted anything other than "passive
resistance, " defendant is entitled to reversal of her
Or.App. 651] Reconsideration allowed; former disposition
withdrawn. In Case No. D151118M, conviction for interfering
with a peace officer reversed; otherwise affirmed. In Case
No. D143941M, affirmed.
DUNCAN, J. PRO TEMPORE
criminal case, defendant appealed from the judgments in two
cases, assigning error to her conviction for interfering with
a peace officer (IPO), ORS 162.247,  in one of the
cases. We affirmed without a written opinion,
State v. Washington, 284 Or.App. 315, 391 P.3d 1011
defendant and the state have filed a joint petition for
reconsideration of that decision. See ORAP 6.25
(governing petitions for reconsideration). The parties agree
that, under the Supreme Court's decision in State v.
McNally, 361 Or. 314, 392 P.3d 721 (2017), which was
issued after our decision in this case, defendant's
conviction for IPO should be reversed because the conduct
upon which the conviction was based constituted "passive
resistance, " which is expressly excluded from the
definition of IPO. ORS l62.247(3)(b) (the IPO statute
"does not [286 Or.App. 653] apply in situations in which
the person is engaging in * * * passive resistance").
For the reasons explained below, we agree.
police officer stopped defendant for traffic violations and
ordered her to provide her identification, and defendant
refused to do so. The officer told defendant that she was
required to produce her license and that failure to do so
could result in arrest. Defendant again refused to produce
her license. Defendant asked the officer for his name and
badge number, told him that she was recording their
conversation on her phone, and asked him questions that she
had written down on a piece of paper, including questions
about whether the officer was going to harm her. Although
defendant did not provide her identification, she was calm
and polite, and she did not engage in any threatening or
on defendant's failure to provide her identification, the
state charged defendant with IPO, in violation of ORS
l62.247(1)(b), alleging in a complaint that defendant
"did unlawfully and knowingly refuse to obey a lawful
order of [the officer], a person known by the defendant to be
a peace officer."
the subsequent jury trial, defendant moved for a judgment of
acquittal on the IPO charge, asserting that her conduct
constituted "passive resistance" under State v.
Patnesky,265 Or.App. 356, 335 P.3d 331 (2014),
abrogated by State v. McNally,361 Or. 314, 392 P.3d
721 (2017), in which we held that, for the purposes of ORS
162.247, "passive resistance" refers to
"specific acts or techniques that are commonly