STATE v. BIBIANO (2021)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Ismael Nava BIBIANO, aka Ismael NavaBibiasno, Defendant-Appellant.

A172176

Decided: May 05, 2021

Before Ortega, Presiding Judge, and Shorr, Judge, and Powers, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.

Defendant appeals his convictions for driving under the influence of intoxicants (DUII), ORS 813.011 (Count 1), and misdemeanor driving while suspended, ORS 811.182 (Count 2). Although the misdemeanor was tried to the court, the DUII was tried before a jury, which returned a nonunanimous verdict. On appeal, defendant argues that the trial court erred in denying his motion to suppress evidence and in instructing the jury, over defendant's objection, that it could return a nonunanimous verdict. We reject without discussion defendant's assignment of error concerning the motion to suppress. With respect to the nonunanimous jury verdict for DUII, the parties agree that defendant is entitled to relief under Ramos v. Louisiana, 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020). We agree and accept the state's concession on that point.

Conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed.

PER CURIAM

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