Moore v. Motor Vehicles Division

818 P.2d 974, 109 Or. App. 195, 1991 Ore. App. LEXIS 1512

• Court: Court of Appeals of Oregon
• Decided: October 9, 1991
• Docket: 08 890712 10045; CA A65351
• Status: Published

Opinions

DE MUNIZ, J.

Petitioner seeks judicial review of a Motor Vehicles Division (MVD) order that revoked his driving privileges when it affirmed MVD’s previous determination that he is a habitual traffic offender. ORS 809.640; ORS 809.600(1). He challenges MVD’s use of a DUII conviction and a DWS conviction as underlying offenses in its determination. We affirm.

Petitioner was convicted of DUII in September, 1984, DWS in December, 1987, and another DUII in April, 1989. MVD determined that it was required to revoke his driving privileges, because he was a habitual traffic offender under ORS 809.600. It sent him notice of the revocation. ORS 809.640(1). Petitioner requested a hearing. MVD stayed the revocation pending the hearing. ORS 809.640(2).

At the hearing, petitioner argued that MVD should not have used the 1984 DUII conviction in its determination that he was a habitual traffic offender, because he was not represented by counsel and did not knowingly waive his right to counsel when he was convicted of that offense. He also argued that MVD should not have used the DWS conviction in its determination. He conceded that he had pled guilty to that charge. At the time he committed the DWS offense, it was a misdemeanor that could be used in a habitual traffic offender determination. Former ORS 811.175; former 809.600(1)(c). However, he contended that, due to subsequent amendments to the applicable statutes, Or Laws 1987, ch 730, §§ 1,17, the offense would now be a traffic infraction that could not be used in a habitual traffic offender determination. ORS 811.175; ORS 809.600(l)(c).

The hearings officer assumed, arguendo, that petitioner could raise those contentions concerning the underlying convictions in the hearing,’ and he rejected them. He concluded that petitioner failed “to produce evidence sufficient to prove the invalidity of [the 1984 DUII] conviction.” He also concluded that the subsequent change of law did not change the status of petitioner’s DWS conviction. He made findings necessary to affirm the determination that petitioner was a habitual traffic offender and ordered that his driving privileges be revoked. ORS 809.640(7)(a).

On judicial review, petitioner renews his challenges to the underlying convictions. We affirm MVD’s order, but for reasons different from those of the hearings officer. In State v. Jackson, 34 Or App 587, 579 P2d 299 (1978), we held that proceedings under the Habitual Traffic Offenders Act are civil and that a defendant cannot collaterally attack the validity of an underlying conviction in the habitual traffic offender hearing. When we decided Jackson, the statutes governing habitual traffic offender proceedings did not define the scope of the hearing. However, ORS 809.640(5) now defines that scope:

‘ ‘The scope of a hearing under this section shall be limited to a determination of the following:

“(a) Whether the person is the person named on the driving record.

“(b) Whether the convictions or bail forfeitures shown on the driving record are those of the person named on the driving record.

“(c) Subject to ORS 809.630, whether the division provided notice under ORS 809.620.” (Emphasis supplied.)

In spite of that narrow language, petitioner contends that the Supreme Court’s decision in Pooler v. MVD, 306 Or 47, 755 P2d 701 (1988), mandates that we construe the statute to permit a collateral attack on the underlying convictions in a habitual traffic offender proceeding.

In Pooler, the petitioner challenged the suspension of his driving privileges after he had failed a breath test. Former ORS 482.541(4) limited the scope of the administrative hearing to the determination of whether the requirements for a valid suspension under former ORS 487.805 had been met. Those requirements included whether “[t]he person, at the time the person was requested to submit to a test under ORS 487.805, was under arrest for driving while under the influence of intoxicants.” Former ORS 482.805(4)(a). (Emphasis supplied.) The court determined that “the term ‘under arrest’ in former ORS 482.541 meant a valid arrest.” 306 Or at 51. It also concluded that, “[i]f the arrest must be valid, it follows that the scope of the administrative hearing before the hearings officer included the question of the validity of the arrest.” 306 Or at 51.

Here, the statutory language is much more specific and limiting than the language construed in Pooler. Former ORS 482.541 did not dictate how MVD was to determine that the person was under arrest for DUII. In contrast, ORS 809.640(5) limits MVD solely to a determination of whether there was an error in compiling the convictions shown in the driving record supporting the revocation order.

Notwithstanding the express language of ORS 809.640(5), petitioner contends that ORS 809.640(6) actually provides a method for determining whether a prior conviction is valid. Petitioner misconstrues the purpose of that section. ORS 809.640(6) provides:

“If the person requesting the hearing denies having been convicted of or having forfeited bail for any offense necessary for the finding that the person is a habitual offender, and if the division cannot make a determination of the issue on the evidence available, the division shall certify the issue to the court in which the conviction or bail forfeiture was made. The court to which the certification is made shall forthwith conduct a hearing to determine the issue and shall send a certified copy of its final order determining the issue to the division.” (Emphasis supplied.)

When read together, subsections (5) and (6) of ORS 809.640 simply provide MVD with a method to verify, in response to a denial, that the convictions shown in the driving record were actually entered against the person in the designated court. They say nothing about testing the constitutional infirmity of a prior conviction.

Finally, the issues in the implied consent hearing in Pooler were fundamentally different from those in an habitual traffic offender proceeding. A hearing under the Implied Consent Law is the driver’s only opportunity to challenge the legality of the official conduct giving rise to the proposed suspension. In this context, it can be argued that the state has an obligation, as part of its administration of the Implied Consent Law, to regulate police conduct and to seek to deter future constitutional abuses.¹ That result can be accomplished in part through decisions in implied consent hearings. No comparable state obligation exists in connection with a habitual traffic offender proceeding. A driver who is subject to a habitual traffic offender proceeding, on the basis of prior criminal convictions, has other routes to challenge any aspect of police or governmental conduct or procedure involved in obtaining those convictions. We find no language in the statute and no policy justification for permitting a collateral attack on prior convictions in a habitual traffic offender proceeding.

The language of ORS 809.640(5(b) is unambiguous. It did not allow the hearings officer to determine whether petitioner’s 1984 DUII conviction was invalid, nor did it allow him to determine whether the amendment to the statutes changed the status of petitioner’s DWS conviction in a determination under ORS 809.600. For purposes of the habitual traffic offender proceeding, petitioner had prior convictions and MVD properly revoked petitioner’s driving privileges.

Affirmed.

1 In Pooler, the Supreme Court said:

“[W]e conclude that the legislature must have intended a valid arrest when it used the term ‘under arrest’ in that statute. Were that not so, police officers would be free to stop drivers at random, without probable cause or reasonable suspicion, hoping to identify the occasional DUII driver. Such random activities by the police would be unconstitutional.” 306 Or at 51. (Citations omitted.)