State v. Coy

“[T]he appropriate time to challenge the existence of the conditions precedent to the issuance of the citation is in a pretrial motion aimed at the efficacy of the charging instrument.” State v. King, 199 Or App 278, 285, rev den, 339 Or 544 (2005).

Defendant was convicted of failure to obey a traffic control device based on photo radar evidence.  Defendant appealed and argued the trial court erred by denying her motion to dismiss because she claimed she did not receive notice of the citation, and thus the state failed to show it properly served the citation.   Defendant represented herself without counsel and failed to raise the issue of proof of service until the trial was underway.  The state argued ORS 811.265 does not require the state to show the defendant was served with the citation for purposes of conviction.   “[T]he appropriate time to challenge the existence of the conditions precedent to the issuance of the citation is in a pretrial motion aimed at the efficacy of the charging instrument.” State v. King, 199 Or App 278, 285, rev den, 339 Or 544 (2005).  The Court found that although ORS 810.436 requires service of a traffic citation, this is a condition precedent for issuance of a citation and not a separate element required to prove the traffic offense.  Thus, the Court held the trial court had discretion to deny Defendant’s motion to dismiss because she failed to challenge the proof of service in a pretrial motion.  Affirmed.