State v. Newcomer

To prove that a defendant knowingly failed to appear on a criminal citation, ORS 133.076, the state has the burden of proof to prove that the defendant knew of his or her obligation to appear.

Defendant appealed his convictions for driving under the influence of intoxicants (DUII), and for failure to appear on a criminal citation. Defendant had been arrested and cited for DUII. The arresting officer issued Defendant an Oregon Uniform Citation and Complaint, which notified Defendant of the date and time of his upcoming arraignment. Defendant did not appear for arraignment on that date. His arraignment was rescheduled, and the complaint amended to include a charge of failure to appear. The Court rejected, without discussion, Defendant’s argument that the trial court erred in denying his motion to suppress evidence of his urine sample. Defendant next argued that the trial court erred in its special jury instruction with respect to the charge of failure to appear. The special instruction advised “to establish Defendant had knowledge of the mandatory court appearance, and thereby knowingly failed to appear, the state must prove he received notice of that mandatory appearance.” The Court reasoned that the state has the burden of proof in proving that a defendant knew of the obligation to appear, and found that the special instruction advised that if the State proved Defendant received the citation, then the jury should infer that Defendant knew the date and knowingly decided not to appear. The Court held that the special instruction was an improper comment on evidence, and was in error. Conviction for failure to appear reversed and remanded; otherwise affirmed.