State v. Washington

The phrase “passive resistance” means “noncooperation with a lawful order of a peace officer that does not involve active conduct.”  State v. McNally, 361 Or 314, 339, 392 P3d 721 (2017),.

Defendant and the State filed a joint petition for reconsideration of a Court of Appeals decision that affirmed Defendant’s conviction for interfering with a peace officer (“IPO”), stemming from her failure to provide identification to an officer during a traffic stop. The parties agreed that under the Oregon Supreme Court’s decision in State v. McNally, (issued after the Court of Appeals affirmed Defendant’s conviction) the conviction for IPO should be reversed because the conduct upon which it was based upon constituted “passive resistance” and is expressly excluded from the definition of IPO. The phrase “passive resistance” means “noncooperation with a lawful order of a peace officer that does not involve active conduct.”  State v. McNally, 361 Or 314, 339,392 P3d 721 (2017). Because there was no evidence that Defendant’s noncooperation with the officer involved violence or active measures, the Court of Appeals agreed with the parties, holding Defendant was entitled to reversal of her IPO conviction. Reconsideration allowed; former disposition withdrawn; conviction for IPO reversed; otherwise affirmed.