State v. Gruhlke
Case #: A147055
Nakamoto, J., for the Court; Schuman, P.J.; and Wollheim, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A147055.pdf
Criminal Procedure: An information, like an indictment, must contain facts that sufficiently allege the charged offense is timely.
Defendant appealed her conviction for DUII and argued that the trial court should have granted her demurrer and motion to dismiss based on the statute of limitations. Defendant was issued a citation and complaint in April 2002. The district attorney's information was used as the charging instrument for that incident. The information was superseded by an indictment charging Defendant for the same incident, which Defendant successfully demurred. The State then filed an amended indictment in 2004, again charging Defendant for the same incident. Defendant filed a demurrer to the amended indictment and moved to dismiss, arguing that it exceeded the two-year statute of limitations. The trial court denied both. Defendant entered a guilty plea to the DUII charge and appealed in 2005. During the appellate process in 2007, the district attorney filed another charging instrument again charging Defendant for the incident in April 2002. The 2007 amended information added an allegation that prosecution was “consistently maintained” after it was originally commenced prior to the expiration of the statute of limitations. The Court of Appeals remanded the case, and Defendant moved to dismiss both the 2004 amended indictment and the 2007 amended information because they both violated statute of limitations. The trial court, again, denied Defendant's motion and demurrer, and entered judgment of conviction. Defendant appealed the conviction, which the Court vacated and remanded. When the case was relitigated, Defendant argued the 2007 amended information should be demurred and dismissed for violating the statute of limitations. The trial court denied both, finding the charging instrument sufficient and timely. Defendant entered a guilty plea and appealed, again, arguing that the 2007 amended information exceeded the statute of limitations. Pursuant to ORS 131.125(6)(b), prosecution for DUII must be commenced within two years after its commission. ORS 131.135 states that an action is "commenced" when a warrant or other process is issued. The DUII charge initially commenced when the State issued Defendant the citation and complaint. The State must plead "facts" to demonstrate timeliness in an indictment. The 2007 amended information was subject to demurrer because, like an indictment, an information must contain facts that sufficiently allege the charged offense is timely. The Court held the added allegation that the case had been "consistently maintained" since the "original commencement" of prosecution was conclusory and insufficient to establish a timely prosecution of the DUII because it did not allege when or how the prosecution was "originally commenced" and how it was "consistently maintained" thereafter. Reversed and remanded with instructions to enter an order granting Defendant’s demurrer to the 2007 information.