State v. Ralston

                                      414

  Argued and submitted February 23; decision of Court of Appeals affirmed,
   judgment of circuit court affirmed in part and reversed in part, and case
     remanded to circuit court for further proceedings November 10, 2022


                    STATE OF OREGON,
                   Respondent on Review,
                               v.
             CHRISTOPHER SHANE RALSTON,
               aka Christopher Wayne Ralston,
                     Petitioner on Review.
          (CC 16CR33180) (CA A165924) (SC S068727)
                                  

     Defendant was arrested and charged with misdemeanor driving under the
influence of intoxicants (DUII) and reckless driving. The charges were dismissed
and, 40 days later, defendant was indicted on the charges of felony DUII and reckless driving. During that period, the video recording of defendant’s booking was
overwritten automatically. When defense counsel later learned that the evidence
was lost, defendant moved to dismiss the charges on constitutional speedy-trial
grounds, arguing that the delay caused the loss of the video and thereby prejudiced the defense. The trial court denied the motion and the Court of Appeals
affirmed. Held: To prove a constitutional speedy-trial violation, a defendant must
prove prejudice resulting from the delay, and, in this case, even if the 40-day
delay in indicting defendant was unreasonable, defendant had not demonstrated
a causal connection between that delay and the loss of the booking video and the
ensuing prejudice to defendant.
    The decision of the Court of Appeals is affirmed. The judgment of the circuit
court is affirmed in part and reversed in part, and the case is remanded to the
circuit court for further proceedings.



    En Banc
    On review from the Court of Appeals.*
   Kyle Krohn, Senior Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Deputy Defender.
   Paul L. Smith, Deputy Solicitor General, Salem, argued
the cause and filed the brief for respondent on review. Also
______________
    * Appeal from Multnomah County Circuit Court, Richard C. Baldwin, Judge.

, 

 (2021).
Cite as 

 (2022)                                 415

on the brief were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
   NELSON, J.
   The decision of the Court of Appeals is affirmed. The judgment of the circuit court is affirmed in part and reversed in
part, and the case is remanded to the circuit court for further proceedings.
416                                                        State v. Ralston

           NELSON, J.
         In this criminal case, defendant was arrested,
booked, and charged by district attorney’s information with
misdemeanor driving under the influence of intoxicants
(DUII) and reckless driving. Five days later, the prosecutor
dismissed the misdemeanor charges to investigate whether
defendant had predicate convictions that would have elevated the charge to felony DUII. Six weeks later, a grand
jury indicted defendant on a charge of felony DUII. By that
time, video footage from the jail on the night that defendant
was arrested and booked had been overwritten automatically. When defense counsel later learned that the booking
video had been overwritten, defendant moved to dismiss the
charges against him on the ground that his right to a speedy
trial under Article I, section 10, of the Oregon Constitution
had been violated, arguing that his inability to use the video
of his booking at trial was prejudicial to him. The trial court
denied the motion and the Court of Appeals affirmed. State
v. Ralston, 

, 

 (2021). We allowed
review and, for the reasons that follow, we affirm the decision of the Court of Appeals, and we affirm in part the judgment of the trial court.1
        The following facts are undisputed. Shortly after
midnight on June 3, 2016, defendant was arrested for DUII.
Defendant had bloodshot and watery eyes, smelled of alcohol, and had multiple open containers of alcohol in his car.
He refused to submit to a breath test. Two hours later, he
was booked into jail. The booking area has several video
cameras that record footage of individuals going through
the booking process. That footage is kept for at least 30 days
and then is overwritten automatically by the recording system, starting with the oldest videos.2
    1
      In the Court of Appeals, defendant also challenged the trial court’s imposition of a $2,255 fine in the judgment, when it had orally imposed a $2,000 fine at
sentencing. The state conceded that the trial court erred in that regard and the
Court of Appeals accepted the concession. The Court of Appeals therefore vacated
the portion of the judgment imposing the $2,255 fine and remanded the case for
resentencing. Ralston, 

. That part of the Court of Appeals’ decision is not at issue before this court, and we do not discuss it further.
    2
      The sheriff’s office was required to keep booking video recordings for 30
days, but the sheriff’s office could not determine precisely when the videotape of
defendant’s booking was overwritten.
Cite as 

 (2022)                                            417

          On the day of defendant’s arrest, defendant was
arraigned and charged by district attorney’s information
with DUII and reckless driving. He was appointed counsel
and taken into custody. The prosecutor soon determined
that defendant might have had two previous DUII convictions, which would elevate the DUII charge against defendant to a felony. ORS 813.011(1) (DUII is a felony if, in the
preceding 10 years, a defendant has had two previous convictions under Oregon’s DUII laws or their statutory counterpart in another jurisdiction). On June 7, in an effort to
avoid a felony DUII conviction, defendant requested a hearing for June 8 to plead guilty to the misdemeanor charges.
In response, the state moved to dismiss the information, to
give it time to investigate whether a felony charge was warranted. The court granted the state’s motion and ordered
that defendant be released.
         On June 9, the felony DUII prosecutor received a
case file that included defendant’s prior conviction records.
For reasons that are not explained in the record, the prosecutor did not review the file until July 8. At that point, the
prosecutor confirmed that defendant could be charged with
felony DUII, and, on July 19, 2016, a grand jury indicted
defendant on that charge, based on the June 3 incident and
two previous Washington state convictions for DUII, one
in 2012 and the other in 2014.3 A judge issued a statewide
arrest warrant the same day. The sheriff’s office entered the
warrant into various databases the following day and, on
July 29, asked two different law-enforcement agencies in
Washington, where defendant lived, to serve the warrant.
         On January 4, 2017, the Multnomah County
Sheriff’s Office learned that defendant was in custody in
Washington on unrelated charges, and defendant was
arrested on the DUII indictment at issue. The following
day, defendant waived extradition and consented to being
returned to Oregon to answer the charges here. Defendant
was transported to Oregon on March 16, 2017, and he was
arraigned the following day. Counsel was appointed at
that time. After viewing the police report obtained in discovery, defense counsel requested a copy of the videotape
   3
       Defendant also was indicted on the reckless driving charge.
418                                                     State v. Ralston

of defendant’s June 3, 2016, booking, and, on May 1, 2017,
learned that the videotape had been overwritten and no longer existed.4
        Defendant moved to dismiss the charges against
him on speedy-trial grounds, under Article I, section 10, of
the Oregon Constitution. Article I, section 10, provides:
   “No court shall be secret, but justice shall be administered,
   openly and without purchase, completely and without delay,
   and every man shall have remedy by due course of law for
   injury done him in his person, property, or reputation.”
Defendant’s motion emphasized the state’s unexplained
delay in obtaining an indictment and serving the warrant,
but his argument primarily focused on the prejudice to him
resulting from the delay. Specifically, defendant argued that
the loss of the booking video was prejudicial because it might
have shown that he had exhibited ordinary balance and
coordination two hours after he drove, and, for that reason,
his inability to use the video at trial was likely to harm his
defense. In support of his motion, defendant offered a declaration from his lawyer stating that she had reviewed the
arresting officer’s police report and had noted that it did not
describe defendant as exhibiting poor balance or coordination. On that basis, she averred, she expected that the booking video would prove helpful to the defense at trial. She further stated that, in past DUII cases, she had obtained and
offered into evidence Multnomah County Sheriff’s Office jail
booking videos, because they can demonstrate a defendant’s
ability or inability to walk, follow directions, and stand in
balance. She also stated that “it is not uncommon for a jail
booking video to show a Defendant standing on one foot
and removing a shoe while maintaining balance.” Finally,
she stated that, in her experience, those booking videos are
“uniquely persuasive” as objective evidence at DUII trials.
         Defendant also offered an affidavit from a sheriff’s
office employee explaining the booking area videotaping
and overwriting process. Defendant did not introduce a copy
of the police report or present testimony from the arresting
    4
      The parties agree that the booking video was overwritten sometime after
July 3, 2016, (30 days after the booking) and before defendant’s indictment on
July 19, 2016.
Cite as 

 (2022)                                 419

officer to make a record of what the officer would say. Nor
did he introduce an example of what a booking video would
look like.
         On August 18, 2017, the trial court held a hearing
on defendant’s motion to dismiss. After hearing argument
from both sides, the trial court denied the motion. The
court noted that the delays in this case were not exceptional
and, in particular, that the “month or so” delay between
arrest and indictment was not an unusual length of time.
Ultimately, the court concluded that, even if the delay were
unreasonable, defendant had not made an adequate factual
showing that the lost video recording would have been helpful to the defense. In so doing, the court accepted defense
counsel’s representation about what the video “would have
shown—normally for people,” but “without regard to what it
particularly would have shown” with respect to defendant.
Defendant subsequently entered a conditional guilty plea to
felony DUII in exchange for dismissal of the reckless driving charge, reserving his right to appeal the denial of his
motion to dismiss on speedy-trial grounds.
         Defendant appealed the denial of his motion to dismiss, reprising his state constitutional arguments. The Court
of Appeals affirmed that part of the trial court judgment.
         As an initial matter, the Court of Appeals noted that
defendant had asked it to determine whether the speedy-trial clock began to run on the day that the misdemeanor
information was filed or on the day that he was indicted,
which is an open question in Oregon. The court concluded
that it need not decide that issue in this case, because, as it
later explained, even assuming that the speedy-trial clock
started to tick at the time that the misdemeanor information was filed and was not reset by the dismissal of the information and defendant’s subsequent indictment on the felony
charge, defendant had failed to prove that he suffered sufficient prejudice from the delay to warrant dismissal under
Article I, section 10. Ralston, 

.
         As to that principal issue, the court stated that, in
determining whether a defendant was denied the constitutional right to justice without delay, a court considers three
factors: the length of the delay, the reasons for the delay,
420                                                State v. Ralston

and the prejudice to the defendant resulting from the delay.

 at 477 (citing State v. Emery, 

, 

(1994)). With respect to the first factor, length of the delay,
the court noted that a delay, in and of itself, may be sufficient to establish a violation of the constitutional guarantee
of a speedy trial. 

 In State v. Vawter, this court stated that
delay alone may violate a defendant’s speedy trial right if
“such a period of time [passes] that the thought of ordering
the defendant to trial shocks the imagination and the conscience.” 

, 

 (1963) (internal quotation marks omitted). Here, the Court of Appeals stated,
although the delay was not so “manifestly excessive” that
it “shocks the imagination and the conscience,” so as to
be dispositive on its own, the state had conceded that the
14-month period from the misdemeanor indictment in June
2016 to defendant’s guilty plea in August 2017 was not so
insignificant that the court need not consider the reasons
for the delay and the prejudice to defendant. Ralston, 

.
         With respect to the reasons for the delay, defendant
had argued that the state had failed to explain the entire
14-month period leading up to the hearing and guilty plea,
and, therefore, that length of time was unreasonable, and
that factor weighed against the state. The court disagreed,
concluding that the state had failed to explain three and
one-half months of the delay; the remaining period of delay
was explained, reasonable, and justified. 

 Specifically,
the court found that the period between June 9, 2016,
when the prosecutor received the file containing evidence
of defendant’s prior DUII convictions, and July 8, when
the prosecutor reviewed that file, was unexplained, and,
because the booking video was lost during that period, that
period weighed against the state. 

. As the court
explained,
      “[T]he video was likely destroyed after the [prosecutor]
      received defendant’s file but before she had reviewed it. In
      other words, as the parties agree on appeal, it was that
      30-day delay that caused the destruction of the video. In
      that light, we cannot conclude that the state adequately
      explained this delay[.]”

Cite as 

 (2022)                                 421

         The next period of delay that the court examined
was the five-and-one-half-month period between July 19,
2016, the day that the warrant was issued for defendant’s
arrest, and January 4, 2017, when the sheriff’s office
learned that defendant was in custody in Washington on
unrelated charges. The court found that Oregon officials
had acted promptly in obtaining the warrant and in seeking assistance from and coordinating with Washington law-enforcement agencies, and, therefore, that that period was
explained and reasonable. Id. at 480-81.
         The court then examined the two-and-one-half-month
period between January 5, 2017, the day that defendant signed
the waiver of extradition, and March 16, 2017, the day that he
was transported to Oregon to face the present charges. The
court found that that delay might have been due to a number
of factors, some weighing in favor of the state, but that the
state had not carried its burden to explain the reasons for the
delay. Therefore, the court concluded, that period was unexplained and weighed against the state. Id. at 482.
         Finally, the court examined the period between
March 16, 2017, the day that defendant was transported
to Oregon, and August 18, 2017, the day of the hearing on
defendant’s motion to dismiss. The court found that that
period, totaling approximately five months, was reasonable.
The court noted that defendant was arraigned and released
from custody and counsel was appointed within a day of his
return to Oregon, and the remaining period before the hearing was not unusual and was attributable in part to defendant’s motion to dismiss. Id.
         In sum, the court concluded, approximately three
and one-half months of the 14-month delay was unexplained
and weighed against the state. The remaining approximately 11 months of the delay were explained and the result
of reasonable and justifiable causes. Therefore, the court
held, the reasons-for-the-delay factor did not weigh in favor
of dismissal. Id. at 483. Thus, according to the court, defendant’s claim rested on whether he had established sufficient
prejudice to warrant dismissal. Id.
        With respect to the question of prejudice, this
court has held that a court must evaluate the prejudice to
422                                             State v. Ralston

a defendant “in light of the interests that the speedy-trial
requirement was designed to protect: (1) to prevent oppressive pretrial incarceration; (2) to minimize the anxiety and
concern of the criminally accused; (3) and to limit the possibility that the defense will be impaired.” State v. Tiner,

, 

 (2006), cert den, 

(2007). Of those, “the last is the most serious, because the
inability of a defendant adequately to prepare a case skews
the fairness of the entire system.” 

 It is the defendant’s
burden to establish prejudice. 

 To succeed on a claim
of prejudice based on the third factor, impairment of the
defense, the defendant need only show that the delay created “a reasonable possibility of prejudice”:
   “We conclude that in cases where inquiry into impairment
   of defense is necessary, it would be harsh to require proof
   with certainty. It is sufficient to show only a reasonable
   possibility of prejudice; this was shown in the present case
   by identification of potentially favorable witnesses who
   could not be found due to a delayed trial.”
State v. Ivory, 

, 

 (1977); see also
State v. McDonnell, 

, 

 (2007);
Tiner, 

; State v. Harberts, 

, 

 (2000); Emery, 

 (all applying that standard).
         In the Court of Appeals and in this court, defendant asserted only the third type of prejudice: impairment
of the defense from the loss of the booking video. The Court
of Appeals began by rejecting the state’s argument that the
arresting officer’s testimony would have been an adequate
substitute for the booking video, and, therefore, defendant’s
ability to mount a defense was not impaired. The court
stated that, “[when] it is only the officer and a defendant
present when the [event] occurs[, v]ideo recordings … can
be uniquely powerful pieces of evidence because they create
an irrefutable record of what occurred.” Ralston, 

 (internal quotation marks omitted). The court
also rejected the state’s contention that defendant’s argument with respect to the helpfulness of the booking video
was mere “speculation,” stating,
   “It is an understatement to say that a defendant attempting to show that he suffered prejudice from evidence that
Cite as 

 (2022)                                      423

   was lost or destroyed faces a seemingly impossible task,
   and parties and courts are well-served by recognizing the
   [difficulty] faced by defense counsel in these situations—
   situations that, by definition, only come about when there has
   been unexplained delay caused by the state. The Supreme
   Court has acknowledged that difficulty, explaining that
   ‘[p]roof of actual prejudice is often quite difficult’ when a
   defendant is attempting to show prejudice ‘where witnesses
   or records have disappeared or memories have dimmed.’ ”

 at 487 (quoting Ivory, 

). Reiterating that
a defendant need only show a “reasonable possibility” of
prejudice, the court nonetheless noted that it remains difficult for a defendant to provide nonspeculative proof that lost
evidence (of which, by definition, one cannot know with certainty the contents) would be helpful to show a reasonable
possibility of prejudice. Ultimately, the court held that “prejudice in the context of speedy trial is not binary; there are
degrees of prejudice” and that “the possibility of prejudice is
judged by assessing two parallel sliding scales: probability
and materiality.” Ralston, 

. The court further explained:
   “For probability, a defendant must provide an explanation
   as to how the lost evidence would be favorable. … For
   materiality, there must be something in the record, based
   on the specific facts of each case, to support the defendant’s
   theory that the lost evidence would have been helpful to the
   theory of the case, in the context of how the evidence was
   presented at trial.”

 (citation omitted).
         The Court of Appeals held that, although defendant
had shown that there was at least some probability that the
missing evidence would be favorable, he nonetheless failed
to carry his burden of establishing prejudice, because he
had failed to show that the booking video would have been
material to his defense. 

. According to the court,
defendant’s showing as to materiality was complicated by
the fact that he had pleaded guilty to the charged offenses.
That is, the court explained, the materiality of the video at
trial was dependent on how the police officer would have
testified concerning the fact that the police report did not
describe the officer’s observations of defendant’s balance and
424                                            State v. Ralston

coordination. If the officer had testified that defendant was
unsteady on his feet, for example, then the booking video
would have had impeachment value. However, the court
stated, it was equally possible that the officer would have
admitted the missing observations in the report. Because
this case was resolved on a guilty plea, the court observed,
the record did not contain evidence of the police officer’s testimony, and defendant’s burden to establish the materiality
of the booking video was therefore more difficult to meet.

.
        In addition, the court stated, defendant’s showing
of materiality was undermined by the fact that defendant,
who was represented by the same law office throughout his
case, was willing to enter a guilty plea five days after his
arrest, without having sought to view the booking video.
According to the court, “[d]efendant’s willingness to enter a
plea without having viewed the video is part of the totality,
and weighs, in some measure, against claims of the video’s
materiality.” 

         Ultimately, the Court of Appeals held that, because
of the relatively small period of unexplained delay, the fact
that the state had not caused those short periods of unexplained delay intentionally, and the fact that the materiality of the missing evidence was uncertain, defendant had
failed to establish a reasonable possibility of prejudice.
Accordingly, the court held, defendant’s speedy trial rights
under Article I, section 10, were not violated. 

.
         On review, defendant acknowledges that this case is
“largely about a six-week delay near the start of defendant’s
case”—the period between the state’s dismissal of the misdemeanor information and the filing of the indictment for felony DUII. Defendant argues that that period counts toward
the total period of delay for purposes of the state constitution,
because, even after dismissing the misdemeanor charge,
the state intended to continue the prosecution. Defendant
notes that the court proceedings were not terminated, but
merely deferred, as evidenced by the fact that the case
number remained the same after the state filed the indictment. And, defendant argues, under Article I, section 10,
the state was not permitted to unreasonably defer the court
Cite as 

 (2022)                                   425

proceedings. State v. Vasquez, 

, 605 n 5, 

 (2004) (“The constitutional instruction that ‘justice
shall be administered … without delay’ further suggests
that those court proceedings, once commenced, shall not
be prolonged or deferred.”). Defendant claims that that initial six-week delay “resulted in the destruction of a video of
defendant’s booking into jail.”
          Defendant further argues that the Court of Appeals
erred in two important respects in assessing the prejudice
to defendant from the loss of the booking video: (1) in relying on the fact that defendant resolved his case by conditional plea and that, as a consequence, the record did not
reflect how the arresting officer would have testified, and
(2) in relying on the fact that defendant attempted to plead
guilty to the misdemeanor DUII charge before seeking to
view the booking video. Defendant argues that, if those considerations are removed from the equation, the remainder of
the Court of Appeals’ analysis shows that defendant met his
burden of demonstrating a reasonable possibility of prejudice. And that reasonable possibility of prejudice, combined
with the 14 months of partially unexplained overall delay,
establishes a violation of Article I, section 10.
          As an initial matter, we, like the Court of Appeals,
conclude that we need not answer the question of whether the
filing of the misdemeanor information in this case started
the clock for purposes of determining whether defendant’s
Article I, section 10, right to a speedy trial was violated,
because, for reasons that we explain below, we also conclude
that defendant has not met his burden to show prejudice.
However, we reach that latter conclusion for different reasons than those supporting the Court of Appeals’ decision.
         As the Court of Appeals correctly stated, courts consider three factors in determining whether a delay in bringing a case to trial violates Article I, section 10: the length of
the delay, the reasons for the delay, and the prejudice to the
defendant resulting from the delay. Ralston, 

 (citing Emery, 

). We agree with the Court
of Appeals that, assuming that the period of time between
the dismissal of the misdemeanor DUII charge and the
indictment for felony DUII counts for Article I, section 10,
426                                           State v. Ralston

purposes, the length of the overall delay—14 months from
the time of the filing of the information until the hearing
on the motion to dismiss and the defendant’s guilty plea—
was sufficiently lengthy as to weigh against the state and
to warrant consideration of the other two factors. We also
agree with the Court of Appeals’ determination that only
three and a half months of that period were unexplained
and that there is no suggestion that the unexplained periods were intentional or the result of bad faith on the state’s
part.
         It follows that defendant’s claim for dismissal turns
on whether we can conclude from the record that the delay
resulted in prejudice to the defendant sufficient to warrant
dismissal of the charges against him. On that point, we
turn first to defendant’s objection to the Court of Appeals’
consideration of the booking video’s “materiality” in assessing prejudice, and, in particular, to the court’s conclusions
(1) that the potential materiality of the lost video was made
difficult to prove because defendant pleaded guilty, and
(2) that defendant’s claim of prejudice was undermined by
the fact that defendant attempted to plead guilty to the misdemeanor charge before seeking to view the booking video.
We agree with defendant that the Court of Appeals’ reliance
on defendant’s failure to prove the potential materiality of
the booking video, at a trial that never took place due to
defendant’s guilty plea, was misplaced.
         Generally, an appellate court’s review of a trial
court’s ruling is limited to the record as it had developed at
the time of the ruling: “[W]e do not evaluate a court’s pretrial
decision with the benefit of hindsight by, for example, taking
into account what happened at trial.” State v. Sperou, 

, 

 (2019). And, as we have discussed,
to succeed on a claim of prejudice based on impairment of
the defense under Article I, section 10, the defendant need
only show “a reasonable possibility of prejudice.” Ivory, 

. However, in Haynes v. Burks, this court stated
that the inquiry into the reasonable possibility of prejudice
is slightly different depending on whether the speedy-trial
claim is made before or after trial. 

, 

 (1980) (a claim that arises before trial “requires a more
differentiated consideration of the element of prejudice”
Cite as 

 (2022)                                     427

than an appeal of a denial of a motion to dismiss that is
raised after trial). As the court stated in Haynes,
   “on appeal from a conviction, the question of prejudice
   resulting from the delay can be examined retrospectively,
   though perhaps not with absolute certainty, and when
   a conviction is set aside for that reason, the reason by
   hypothesis precludes a later retrial. Thus a reasonable possibility that the delay will impair the defense is the proper
   prospective test for deciding that a case must proceed to
   trial, while a retrospective claim that a conviction must
   be reversed for delay reasonably calls for showing a more
   concrete likelihood that the delay was prejudicial to the
   defense.”
Id. at 82 (emphases omitted). In keeping with the notion
that a retrospective—post-trial—claim requires “a more
concrete likelihood” of prejudice, this court held, in State v.
Mende, 

, 

 (1987), that, after a
conviction, some level of “actual prejudice” to the defendant’s
ability to prepare a defense is required. In other words, after
a trial, it may be possible to determine whether the asserted
prejudice actually materialized and, for that reason, a more
substantial showing may be required.
         However, most of our cases hew to the standard
articulated in Ivory: namely, that it is sufficient to show
only a reasonable possibility of prejudice when the matter
is examined prospectively. See, e.g., McDonnell, 

; Tiner, 

; Harberts, 

; Emery, 

 (all applying that standard). In Ivory, for example, the trial court had agreed with the defendant that his
Article I, section 10, right to a speedy trial had been violated, and it dismissed the charge against him. Our review
arose out of the state’s appeal of the dismissal. For that reason, consideration of the issue of prejudice was prospective,
insofar as no trial had been conducted. This court held that
the defendant had established a reasonable possibility of
prejudice by identifying potentially favorable witnesses who
could not be found due to the delayed trial. Ivory, 

. The court did not consider what evidence the state
might have introduced at a hypothetical trial that would
have affected the materiality of the missing witnesses’
testimonies.
428                                             State v. Ralston

         Although defendant in this case was convicted on
his guilty plea after the trial court denied his motion to dismiss, the posture of the case is akin to that in Ivory. No
trial occurred; the police officer did not testify. Speculating
about how the officer’s potential testimony at a hypothetical
trial might have affected the materiality of the lost booking video does not change the analysis of whether defendant
had shown, at the pretrial hearing on his motion to dismiss,
a reasonable possibility that his ability to defend himself
against the felony DUII charge was impaired by the loss of
that evidence.
         We also disagree with the Court of Appeals’ conclusion that the fact that defendant attempted to plead guilty
to the misdemeanor DUII charge before seeking to view the
booking video was relevant to the prejudice issue. In concluding that that plea attempt was relevant, the Court of Appeals
inferred that “defendant’s willingness to enter a guilty plea
suggests that defendant didn’t view the video as sufficiently
exculpatory.” Ralston, 

. However, as this
court has stated, an attempt to plead guilty does not support
an inference respecting the defendant’s perception of his or
her guilt or chances at trial:
   “A defendant may wish to plead guilty for any one of several
   reasons having nothing to do with his guilt. He may wish
   to spare his family the unfavorable publicity attendant
   upon a trial. He may, for private reason, prefer to plead
   guilty rather than have his past paraded before the world.
   He may fear that a trial might result in a relative or friend
   being charged as an accessory or in the defendant’s being
   charged with other crimes. These and other cogent reasons
   may impel a defendant who does not believe he is guilty to
   plead guilty and waive a public trial.”
State v. Thomson, 

, 

 (1954) (internal
quotation marks and citation omitted).
        Here, that defendant did not view the booking video
as exculpatory is not the only, or even the most likely, inference that could be drawn from defendant’s willingness to
enter a guilty plea five days after his arrest. Defendant
knew that he had two prior DUII convictions, which would
have elevated his misdemeanor charge to a felony. With that
in mind, it is much more likely that defendant’s first priority
Cite as 

 (2022)                                                    429

was avoiding the risk of a felony conviction; attempting to
plead guilty before the state withdrew the misdemeanor
charge, even if defendant believed that the booking video
would be exculpatory, was the most efficacious way to accomplish that goal. Indeed, the state recognized that defendant
attempted to plead guilty to avoid a potential felony conviction and never contended that the attempt reflected defendant’s assessment of the evidence.5
         To summarize, we conclude that the Court of
Appeals erred in holding that defendant had failed to prove
that his ability to mount a defense was impaired because
he did not establish that the booking video would have been
“material” at a trial had he not pleaded guilty. We also conclude that the Court of Appeals erred in relying on the fact
that defendant attempted to plead guilty before seeking the
booking video as evidence that he himself did not view the
video as sufficiently exculpatory. Nevertheless, as we will
explain, we agree with the Court of Appeals’ ultimate conclusion that defendant has not established prejudice resulting from the delay so as to warrant dismissal of the charges
against him.
         Our cases make clear that there must be a causal
connection between the unreasonable delay and the prejudice to the defendant. See, e.g., Tiner, 

 (“defendant must show that the delay caused a reasonable possibility of prejudice to the ability of the defendant to prepare a

    5
      We also observe that both OEC 410 and ORS 135.445 preclude the court
from using defendant’s attempt to plead guilty against him. OEC 410 provides:
        “(1) A plea of guilty or no contest which is not accepted or has been withdrawn shall not be received against the defendant in any criminal proceeding.
        “(2) No statement or admission made by a defendant or a defendant’s
    attorney during any proceeding relating to a plea of guilty or no contest
    which is not accepted or has been withdrawn shall be received against the
    defendant in any criminal proceeding.”
Both OEC 410 and ORS 135.445 apply to appellate courts. OEC 101(1). And a
“criminal proceeding” includes a criminal appeal. ORS 131.005(7) (“ ‘Criminal
proceeding’ means any proceeding which constitutes a part of a criminal action
or occurs in court in connection with a prospective, pending or completed criminal action.”). One purpose behind the exclusion of attempts to plead guilty is
that “neither [the] defendant nor the state should be penalized for engaging in
practices which are consistent with the objectives of the criminal justice system.”
Commentary to Criminal Law Revision Commission Proposed Oregon Criminal
Procedure Code, Final Draft and Report § 267, 164 (Nov 1972).
430                                                           State v. Ralston

defense”); Harberts, 

 (to same effect); Emery, 

 (same); Haynes, 

 (defendant must show
that the delay “created a reasonable possibility of prejudice to
[defendant’s] defense”). In Emery, for example, the defendant
was cited for illegal possession of an elk in October 1988.
After a series of procedural mishaps, the criminal case was
eventually scheduled for trial in October 1990. The defendant
moved for dismissal on both statutory and constitutional
speedy-trial grounds. The trial court denied the motion and
the Court of Appeals affirmed. On review in this court, with
respect to the alleged violation of Article I, section 10, the
defendant argued, among other things, that he had suffered
prejudice from the delay in the form of an inability to take
a planned vacation due to the pending criminal charge. The
court, considering whether the delay “created a reasonable
possibility of prejudice,” determined that that harm was not
the result of the delay. The court stated:
    “[T]he travel plans that defendant decided to forego [sic]
    because of the pending charge were for a vacation in
    December 1988. The decision to forgo the vacation was not
    affected by the delay[ ] and, therefore, does not affect the
    speedy trial inquiry.”
Emery, 

 (emphasis in original; footnote omitted). That is, the court considered the causal connection
between the delay and the harm and concluded that the
defendant had not proved that the delay created the particular harm alleged.6
         Similarly, in Tiner, an aggravated murder case
in which the defendant’s trial was set for a date four and
one-half years after his arrest, the defendant moved for dismissal of the charge on constitutional speedy-trial grounds.
The trial court denied the motion, and, on direct review, this
court affirmed that ruling. On review, the defendant argued,
    6
      This court reversed the defendant’s conviction in Emery, concluding that
the state had violated the defendant’s right to a speedy trial under former ORS
135.747, which, the court held, did not require a showing of prejudice. 

. The court rejected the defendant’s argument that his constitutional
right to a speedy trial also was violated, which would have required dismissal of
the charge with prejudice, holding that “defendant ha[d] failed to show that the
delay between the time defendant was cited and the time he was brought to trial
‘created a reasonable possibility of prejudice to [defendant’s] defense.’ ” 

 at 474
(quoting Haynes, 

).
Cite as 

 (2022)                                                  431

among other things, that his defense was prejudiced by the
delay in the following two ways: (1) a witness against him,
who would have been unavailable to testify at a timely trial
because she would have asserted her Fifth Amendment right
against self-incrimination, had, during the delay, completed
her trial and was thus available to testify against him for
the state; and (2) the Court of Appeals had decided a case
during the delay that affected the rules of evidence in ways
that made his case more difficult to defend. This court held
that those “two events merely were fortuitous”; defendant
had not demonstrated that any prejudice to him due to those
two events resulted from the delay. Tiner, 

.
         In this case, defendant has maintained, and the
Court of Appeals seemed to agree, that the 30-day delay
between the prosecutor obtaining defendant’s prior criminal
history and the filing of the indictment “caused the destruction of the video.” Ralston, 

. Indeed, the
Court of Appeals’ analysis proceeded on that premise.
However, we disagree that defendant has shown or could
show that any prejudice to him from the loss of the booking
video was the result of the delay. Although it is indisputable
that the booking video was destroyed during the approximately 40-day window between the dismissal of the misdemeanor information and defendant’s indictment on the felony charge, that fact alone does not mandate the conclusion
that there was a causal connection between that delay and
the loss of the booking video. As we shall explain, even if
the prosecutor had acted with impeccable promptness and
obtained an indictment as soon as possible after receiving
the record of defendant’s prior DUII convictions, the chance
that the videotape would not already have been overwritten
by the time defense counsel requested it was infinitesimal.
         The prosecutor received the information about
defendant’s prior convictions on June 9, 2016, a Thursday.
Let us assume that the prosecutor opened the file and
became aware of defendant’s prior convictions that day and
that she obtained a grand jury indictment within 10 days—
that is, by June 19.7 Because defendant was a resident of
    7
      That is approximately the time frame in which the prosecutor acted in this
case; the prosecutor became aware of defendant’s prior DUII convictions on July 8
and obtained an indictment on July 19.
432                                                     State v. Ralston

Washington, after the indictment, the sheriff’s office would
have had to notify law enforcement in Washington that a
warrant had been issued for defendant’s arrest, as happened in this case. In this case, the sheriff’s office notified
the Washington authorities 10 days after the indictment, a
period that the Court of Appeals referred to as “prompt.”
Upon receiving notice of the Oregon warrant, Washington
authorities did not arrest defendant until five months
later. The Court of Appeals found that period of delay to be
explained and reasonable.
         Defendant would then have had to be extradited (or
to waive extradition, as happened here) and transported to
Oregon.8 Even supposing that it had taken a matter of days,
rather than five months, to arrest defendant, and that the
sheriff’s office had arranged transport to return defendant
to Oregon within days, rather than two and one-half months,
it is improbable that defendant would have been arraigned,
and counsel appointed, in fewer than 30 days after he was
indicted.
         As we have stated, the parties agree that the videotape could have been overwritten as early as July 3, 2016.
Even in a perfect world, where the prosecutor, Washington
state officials, the sheriff’s office, and defense counsel all
acted with the most admirable and unfailing promptness, it
would have been virtually impossible for defendant to have
obtained a copy of the booking video before it was destroyed.
We also note that, as defendant has pointed out, it was
clear to all parties at the time that the information was
dismissed that the state intended to continue the prosecution and charge him with felony DUII. It was also clear that
the prosecution would be based not on defendant’s bloodalcohol content but on the police officer’s observations of
him during the arrest. Moreover, the same law office represented defendant throughout his case. Given that the prosecution was effectively deferred rather than terminated,
nothing stood in the way of defense counsel requesting a
copy of the booking video immediately upon the dismissal

    8
      In this case, that process took an additional two and one-half months, a
period that the Court of Appeals found to be unexplained and to weigh against
the state.
Cite as 

 (2022)                                                     433

of the misdemeanor information rather than waiting for the
eventual indictment.9 It follows that, even if we accept that
the speedy-trial clock began to run on the filing of the misdemeanor information, and that the 40-day period between
the prosecutor’s June 9, 2016, receipt of defendant’s criminal
record and the July 19, 2016, indictment was unreasonable,
we simply cannot conclude that that delay—or any of the
other delays that defendant attributes to the state and characterizes as unreasonable—was the reason that the booking
video was lost or was the reason for any ensuing prejudice to
defendant. The destruction of the booking video was a happenstance that was unrelated to any unreasonable delay in
bringing defendant to trial on the felony DUII charge.
         The decision of the Court of Appeals is affirmed.
The judgment of the circuit court is affirmed in part and
reversed in part, and the case is remanded to the circuit
court for further proceedings.




    9
       We note that defense counsel did not seek a copy of the booking video until
after receiving the police report as part of the discovery in the case, and, therefore, did not learn of the destruction of the video until 40 days after her appointment. Given that timing, the booking video could well have been destroyed before
it was requested even if defendant had been charged initially with felony DUII by
indictment rather than with misdemeanor DUII by information.