State v. Donato

“An order given under ORS 162.247(1)(b) is ‘lawful’ if it is authorized by, and is not contrary to, substantive law.” State v. Kreis, 365 Or 659 (2019). “[T]he term lawful order in ORS 162.247(1)(b) does not create an opening for unequal or discretionary application” and “leaves nothing to the ad hoc judgment of an individual police officer.” State v. Navickas, 271 Or App 447 (2015).

Appellant appealed a criminal conviction for interferring with a peace officer ORS 162.247, and harrassment. Appellant assigned error to the trial court's denial of his motion for judgment of acquittal regarding the interferrance charge. Appellant argued that the evidence was insufficient to prove the officer’s verbal command to “sit down” was lawful for the purposes of charging her with an Interfering with a Peace Officer offense, or that the Appellant knowingly disregarded the officer’s order. Additionally, Appellant argued that officers handcuffing and moving her to a patrol car were not legally justified.The State argued in response that Appellant had not preserved the ability to raise this argument on appeal, as well as that the order was justifiable ensure the officer’s safety. “An order given under ORS 162.247(1)(b) is ‘lawful’ if it is authorized by, and is not contrary to, substantive law.” State v. Kreis, 365 Or 659 (2019). “[T]he term lawful order in ORS 162.247(1)(b) does not create an opening for unequal or discretionary application” and “leaves nothing to the ad hoc judgment of an individual police officer.” State v. Navickas, 271 Or App 447 (2015). The Court concluded that the eivdence was not strong enough to prove an inference that the officer reasonably suspected Appellant was a potential threat to their safety at the time of being ordered to sit down because the State did not present sufficient evidence beyond a reasonable doubt. The conviction for violating ORS 162.247 was reversed, and the harassment offense was affirmed.