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Rearrest Improperly Frustrates Oregon Speedy Trial Rights

The En Banc Oregon Supreme Court held that the State may not thwart speedy trial rights by releasing and re-arresting criminal defendants.

Oregon criminal defendants may be held in custody just 60 days before trial, ORS 136.290(1). If trial is not commenced within 60 days, "the court shall release the defendant," ORS 136.290(2). The court must dismiss the charges if the prosecutor is not prepared to proceed at the time of trial, ORS 136.120.

On July 24, 2011, Dylan McDowell was arrested and held in custody for assault and use of a weapon. His trial was originally set for September 21, 2011 but was rescheduled three times.

The State was not prepared to proceed when the case was called for trial on March 16, 2012. So the trial court dismissed the charges and McDowell was released.
Four days later, however, the prosecutor obtained a new indictment, charging McDowell with the same offenses that were dismissed on March 16, 2012. He was re-arrested on March 24, 2012.

On April 9, 2012, McDowell moved for release under ORS 136.290, arguing that his 252 days in custody exceeded the 60-day time limit of ORS 136.290. The trial court denied the motion, concluding that McDowell's second arrest restarted the 60-day clock.

McDowell petitioned the Oregon Supreme Court for a writ of mandamus, reasserting that ORS 136.290 requires his release. The State argued that since McDowell could no longer be tried on the initial indictment, his "arrest on that indictment is irrelevant, and the more recent arrest triggers a new 60-day period under the statute."

The En Banc Supreme Court rejected the State's argument, explaining that "the obvious purpose of the statute is to limit the amount of time that a defendant may be held in custody pending trial. If the state were correct, then the prosecution could frustrate that purpose simply by repeatedly dismissing charges, refiling them, and rearresting a defendant." Finding that at the time of his motion, McDowell had served a total of 252 days in custody, which "greatly exceeds the upper limit set by ORS 136.290(1)," the Court concluded that McDowell "should be released immediately" because "the trial court erred in denying (his) motion for release under ORS 136.290." See: State v. McDowell, 352 Or. 27, 279 P.3d 198 (Or. 2012) (en banc).

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Related legal case

State v. McDowell