State v. Dickey

Under ORS 153.042(1), an enforcement officer may issue a citation only for conduct occurring in their presence and not the presence of another officer.

Defendant appealed a conviction for giving false information to a peace officer. Defendant assigned error to the trial court’s denial of his motion for judgment of acquittal. On appeal, Defendant argued that the elements of the crime were not met because the peace officer was not present for the violation, and, therefore, the officer had no authority to cite him. In response, the State argued that the peace officer was “working in tandem” with an enforcement officer who was present for the conduct, and that gave the peace officer authority to issue the citation. Under ORS 153.042(1), an enforcement officer may issue a citation only for conduct occurring in their presence and not the presence of another officer. The Court found that the plain language of ORS 153.042(1) requires that the citing officer “be ‘the’ same officer in whose presence the conduct occurred” and that “an officer who does not observe a violation may not issue a citation.” The Court reasoned that to allow the authority of one officer to transfer to another would permit the issuance of a citation “based upon another officer’s observation[,]” which ORS 153.041(1) prohibits. Because the peace officer here did not observe the violation himself, he had no authority to issue a citation to Defendant. Reversed.