State v. Danby

301 P.3d 958, 256 Or. App. 599, 2013 WL 2102062, 2013 Ore. App. LEXIS 543
CourtCourt of Appeals of Oregon
DecidedMay 15, 2013
Docket211108445; A149884
StatusPublished

This text of 301 P.3d 958 (State v. Danby) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Danby, 301 P.3d 958, 256 Or. App. 599, 2013 WL 2102062, 2013 Ore. App. LEXIS 543 (Or. Ct. App. 2013).

Opinion

ORTEGA, R J.

Defendant appeals a judgment convicting him of driving under the influence of intoxicants (DUII), ORS 813.010, and interfering with a peace officer, ORS 162.247. We reject two of his three assignments of error without discussion and write only to address his third assignment of error. In that assignment, defendant contends that the trial court “erred in ordering a lifetime suspension of [his] driving privileges” under ORS 809.235, which provides for permanent revocation of a person’s driving privileges when, among other things, the person is convicted for a third time of DUII “in violation of*** ORS 813.010” or the “statutory counterpart to ORS 813.010 in another jurisdiction.” In particular, defendant asserts that the trial court erred in counting as a predicate conviction, for purposes of the lifetime revocation, his conviction for DUII under former ORS 487.540 (1975), repealed by Or Laws 1983, ch 338, § 978, at a time when the offense was classified as an infraction. We conclude that the trial court properly ordered a lifetime revocation of defendant’s driving privileges and, accordingly, affirm.

The few relevant facts are undisputed. Defendant was arrested after he walked into a convenience store noticeably intoxicated. A store clerk called law enforcement and reported that defendant had driven to the store and was still there, and that the clerk believed defendant to be intoxicated. After he was arrested, defendant was ultimately charged with and, following a stipulated facts trial, convicted of, DUII.1 At sentencing, the state argued, over defendant’s objection, that, based on “violation convictions in 1978 [and] 1976 for DUII,” as well as a 1998 conviction, defendant was subject to a lifetime revocation of his driving privileges pursuant to ORS 809.235.2 The court disregarded the 1978 [601]*601DUII, which was a bail forfeiture. However, based on the remaining convictions, the court ordered a lifetime revocation of defendant’s driving privileges.

On appeal, defendant asserts that “ORS 809.235 requires a lifetime suspension of [a] defendant’s driver’s license when the defendant is convicted of DUII and he has two or more prior convictions for violating ORS 813.010. In the present case, there was only one qualifying prior conviction.” In defendant’s view, the trial court could not properly count an infraction DUII conviction under former ORS 487.540 as a predicate offense to support the lifetime revocation of his driving privileges. The state responds that, in light of the Supreme Court’s decision in State v. Kellar, 349 Or 626, 247 P3d 1232 (2011), and the history of ORS 809.235, defendant’s conviction under the prior version of the DUII statute qualifies as a predicate offense for purposes of a lifetime revocation under ORS 809.235. We agree with the state.

We begin by summarizing some of the history of Oregon’s DUII statutes. In 1975, the legislature sought to decriminalize the offense of DUII and, to that end, classified DUII under former ORS 487.540 as a traffic infraction rather than a crime.3 Kellar, 349 Or at 629. Then, in 1981, [602]*602the legislature classified DUII pursuant to former ORS 487.540 as a misdemeanor.4 Id. “In 1983, the legislature undertook a comprehensive revision of the vehicle code.” Id. at 630 (citing Or Laws 1983, ch 338). At that time, the legislature explained that the intent behind those revisions was not to change the law but, rather, to simplify the code. Id.

“As part of the revision of the vehicle code, the 1983 legislature repealed the prohibition against DUII found in former ORS 487.540, and reenacted the same prohibition, which was later codified as ORS 813.010. See Or Laws 1983, ch 338, § 978 (repealing former ORS 487.540); id. § 587 (reenacting the same prohibition). There is no substantive difference between the 1981 prohibition against DUII found in former ORS 487.540 and the prohibition against DUII enacted as part of the 1983 vehicle code revision. Compare former ORS 487.540 (1) and (2) (1981), with Or Laws 1983, ch 338, § 587. Not only are the elements of those two prohibitions identical, but both prohibitions made DUII a Class A misdemeanor. Id. And, as noted, the legislature provided that the 1983 DUII prohibition it enacted was a continuation of the 1981 prohibition it repealed.”

Id. at 631 (footnote omitted).

[603]*603In view of that history, the Supreme Court considered in Kellar the question “whether a conviction for DUII in violation of former ORS 487.540 can serve as a predicate conviction for the permanent revocation of a person’s driver’s license.” 349 Or at 628. It examined the text and context of ORS 809.235(1)(b)(A)(i) to resolve that issue:

“Subparagraph (i) refers to convictions for DUII in violation of ‘ORS 813.010.’ It does not refer to DUII convictions in violation of ORS 813.010 and its statutory predecessor.

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Related

State v. Kellar
247 P.3d 1232 (Oregon Supreme Court, 2011)
Stevens v. Czerniak
84 P.3d 140 (Oregon Supreme Court, 2004)
State v. Barrett
10 P.3d 901 (Oregon Supreme Court, 2000)
State v. Donovan
256 P.3d 196 (Court of Appeals of Oregon, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
301 P.3d 958, 256 Or. App. 599, 2013 WL 2102062, 2013 Ore. App. LEXIS 543, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-danby-orctapp-2013.