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Is a “Violation” a “Lesser Included Offense” in Oregon?


State v. Swanson (SC S059135)

On November 10, 2011, the Oregon Supreme Court issued the following:
On review from the Court of Appeals in an appeal from the Josephine County Circuit Court, Pat Wolke, Judge. 237 Or App 508, 240 P3d 63 (2010)….
Today, the Oregon Supreme Court rejected a criminal defendant’s claim that the so-called lesser-included offense statute, ORS 136.465, allows juries to consider violations that are necessarily included in the crime with which a criminal defendant is charged. In so holding, the Court affirmed the similar decision of the Court of Appeals.
The case arose in defendant David Lee Swanson’s trial on a misdemeanor charge — reckless driving. Defendant asked the court to instruct the jury on the elements of a violation — careless driving — on the theory that the latter offense was a lesser-included offense….
In a unanimous opinion authored by Justice Virginia L. Linder, the Oregon Supreme Court agreed with the Court of Appeals that ORS 136.465 pertains only to “crimes,” as that term is defined at ORS 161.515, and affirmed. The Court considered defendant’s argument that the statute uses the word “crime” in a broader, historical sense that would include violations. It observed that defendant’s argument resolved into two propositions: (1) that, when ORS 136.465 was originally enacted, the term “crime” included offenses that were punishable only by fines and that therefore would be denominated today as “violations;” and (2) that original scope of ORS 136.465 was unaffected by the more recently enacted definition of the term “crime” that appears at ORS 161.515….” [Link to full case.]
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