§ 13.3 Proceedings That Provide Former Jeopardy Protection

• Library: Criminal Law in Oregon (OSBar) (2022 Ed.)

§ 13.3 PROCEEDINGS THAT PROVIDE FORMER JEOPARDY PROTECTION

The statutory and constitutional prohibitions against former jeopardy apply when successive or multiple proceedings are criminal in nature and for the same offense. State v. Lhasawa, 334 Or 543, 548-50, 55 P3d 477 (2002); State v. Selness, 334 Or 515, 529-36, 54 P3d 1025 (2002).

NOTE

For purposes of former jeopardy analysis under the former jeopardy statutes and the Oregon Constitution, the "same offense" includes offenses that are part of the same criminal episode or the same act or transaction. See § 13.5-3 to § 13.5-3(d).

The first issue, therefore, is whether both the current proceeding and the prior proceeding are criminal in nature. That issue is discussed in § 13.3-1 to § 13.3-3(k). The second issue is whether both proceedings have advanced far enough to afford double jeopardy protection; in other words, whether jeopardy has "attached" in regard to the first proceeding, in which case a subsequent proceeding is generally barred. That issue is discussed in § 13.4 to § 13.4-2(b)(5).

§ 13.3-1 Is the Proceeding Criminal in Nature?

To determine whether a proceeding is criminal in nature for purposes of the Oregon Constitution, courts first determine whether the legislature intended that the proceeding be civil in nature. If so, the courts apply the following factors to determine whether, in spite of the legislature's intent, the proceeding nevertheless is criminal in nature:

(1) "the potential for imposition of a penalty that is historically criminal or 'infamous,' or that cannot be justified fully in terms of the civil purposes that the penalty supposedly serves";

(2) "the potential for a judgment or penalty that carries public stigma";

(3) "the use of pretrial procedures that are associated with the criminal law, such as indictment, arrest, and detention"; and

(4) "the potential for collateral consequences that, either taken by themselves or added to the direct consequences of the underlying forbidden acts, amount to criminal penalties."

State v. Selness, 334 Or 515, 536, 54 P3d 1025 (2002). See also, e.g., State v. Warner, 342 Or 361, 372-75, 153 P3d 674 (2007) (applying the Selness factors to determine whether a defendant previously convicted of a careless-driving violation could be subsequently prosecuted for reckless driving); State v. Jenson, 220 Or App 9, 16-18, 184 P3d 1194 (2008); State v. Roeder, 209 Or App 199, 205-09, 147 P3d 363 (2006), rev den, 342 Or 474 (2007).

Federal analysis is similar. Courts evaluate former jeopardy claims under federal law by determining whether the pertinent legislative body expressly or implicitly characterized a challenged sanction as criminal or civil. Hudson v. United States, 522 US 93, 99, 118 S Ct 488, 139 L Ed 2d 450 (1997). If the legislative body labeled the sanction as civil, courts will treat the sanction as punishment only if the party challenging it provides "the clearest proof" that the statutory scheme is so punitive in either purpose or effect that it negates the legislature's intention. Hudson, 522 US at 100 (quoting United States v. Ward, 448 US 242, 249, 100 S Ct 2636, 65 L Ed 2d 742 (1980)). Accord Seling v. Young, 531 US 250, 262, 121 S Ct 727, 148 L Ed 2d 734 (2001); Kansas v. Hendricks, 521 US 346, 361, 117 S Ct 2072, 138 L Ed 2d 501 (1997); State v. Lhasawa, 334 Or 543, 557, 55 P3d 477 (2002). In making this determination, courts consider the following nondispositive "guideposts":

(1) whether the sanction involves an affirmative disability or restraint;

(2) whether the sanction historically has been regarded as a punishment;

(3) whether the sanction comes into play only on a finding of scienter;

(4) whether the sanction will promote the traditional aims of punishment, namely, retribution and deterrence;

(5) whether the sanction is imposed for behavior that already is a crime;

(6) whether a rational, nonpunitive purpose can be assigned to the sanction; and

(7) whether the sanction appears excessive in relation to the alternative purpose assigned.

Hudson, 522 US at 99-100 (citing Kennedy v. Mendoza-Martinez, 372 US 144, 168-69, 83 S Ct 554, 9 L Ed 2d 644 (1963)).

§ 13.3-2 Proceedings That Are Criminal in Nature

§ 13.3-2(a) Juvenile-Delinquency Proceeding

A delinquency proceeding in which a juvenile is charged with acts constituting a crime if committed by an adult (ORS 419C.005(1)) is a prosecution under the former jeopardy statute and is jeopardy for constitutional purposes. Jeopardy attaches when the juvenile court judge or referee has begun taking evidence or has accepted a youth's admission to jurisdiction. ORS 419A.190; Breed v. Jones, 421 US 519, 529, 531, 95 S Ct 1779, 44 L Ed 2d 346 (1975) (under the Fifth Amendment to the United States Constitution); State ex rel. Juvenile Department of Marion County v. Smith, 126 Or App 646, 650 n 5, 870 P2d 240 (1994); State ex rel. Juvenile Department of Multnomah County v. Nelson, 124 Or App 562, 565 n 2, 863 P2d 497 (1993), rev den, 319 Or 81 (1994) (under ORS 131.515 and Article I, section 12, of the Oregon Constitution); State ex rel. Juvenile Department of Multnomah County v. Knox, 20 Or App 455, 463, 532 P2d 245 (1975) (Article I, section 12, of the Oregon Constitution; Fifth Amendment).

Former jeopardy not only prohibits successive delinquency proceedings (Nelson, 124 Or App at 565), but also bars adult prosecutions based on the same offense underlying a prior delinquency action (Breed, 421 US at 541; State v. Thornton, 41 Or App 469, 472, 599 P2d 1160 (1979); State ex rel. Juvenile Department of Multnomah County v. K., 26 Or App 451, 455, 554 P2d 180, rev den, 276 Or 387 (1976) (Fifth Amendment)).

§ 13.3-2(b) Contempt of Court

Contempt of court for which the...