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PV Arrest Qualifies for Oregon Resisting Arrest Conviction

The Oregon Supreme Court held that arrest for a probation or parole violation qualifies as an arrest for Oregon's resisting arrest statute.

In 2009, police stopped Curtis McClure and asked his name. McClure told them and asked if he was free to leave. Police said he was and allowed him to walk away.

As one officer conducted a warrant check, the other officer followed McClure. When the officers learned that McClure was wanted on an outstanding parole violation arrest warrant, they stopped him again.

After informing McClure of the warrant, the officers began to restrain him. McClure tightened his arms, grasped at one officer's fingers, yelled, screamed and held onto a utility pole.

The officers attempted a "hair hold take down" and struck McClure in the torso in an attempt to force him to the ground.

McClure refused to comply with repeated commands to "stop resisting." It was only with the assistance of private security guards that the officers were finally able to force McClure to the ground and handcuff him.

McClure was charged with resisting arrest, in violation of ORS 162.315(1). "Arrest" means "to place a person under actual or constructive restraint or to take a person into custody for the purpose of charging that person with an offense." ORS 133.005(1).

McClure filed a motion for judgment of acquittal, arguing that because a parole violation is not an "offense" as defined in ORS 161.505, he was not placed under restraint "for the purpose of charging him with an offense" and, therefore, was not "arrested" within the meaning of ORS 162.315. The trial court denied the motion, concluding that a parole violation was part of the prosecution of the underlying offense. A jury convicted McClure of resisting arrest and the Court of Appeals affirmed the conviction.

The Oregon Supreme Court also affirmed, concluding "that, as used in ORS 162.315, the legislature intended the phrase 'resisting arrest' to mean resisting 'actual or constructive restraint' that is more than a stop, whether or not that restraint is imposed for the purpose of charging a person with an offense." As such, McClure "was appropriately charged with resisting arrest and . . . the trial court correctly denied his motion for acquittal." See: State v. McClure, 355 Or 704, 335 P3d 1260 (2014)(En Banc).

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Related legal case

State v. McClure