State v. Orueta

164 P.3d 267, 343 Or. 118, 2007 Ore. LEXIS 642

Opinions

KISTLER, J.

In this mandamus proceeding, the state contends that the trial court erred in allowing defendant to enter into a diversion agreement. Because defendant drove under the influence of intoxicants while he had a commercial driver’s license, we agree with the state that he is not eligible for diversion. See ORS 813.215(7) (stating that limitation on diversion). The trial court erred in ruling otherwise, and we conclude that a peremptory writ should issue.

Before setting out the facts, we first describe briefly the statutory and regulatory framework that underlies the parties’ claims. Under ORS 807.031 and ORS 807.100, a person must have both a commercial driver’s license and a current medical certificate to operate a commercial motor vehicle. A person also must have a medical certificate to obtain or renew a commercial driver’s license. See ORS 807.040(l)(g) (new commercial driver’s license); ORS 807.150(2) (renewing commercial driver’s license). As explained below, the applicable rules require a person applying for a new commercial driver’s license to present a medical certificate as part of the application. OAR 735-074-0290(1). However, a person seeking to renew an existing commercial driver’s license only has to certify that he or she still has a current medical certificate. OAR 735-074-0290(3).

With that background in mind, we turn to the facts of this case. In March 2004, defendant went into the cement mixing business, which required that he drive a cement mixing truck. Defendant applied for a commercial driver’s license from the Driver and Motor Vehicle Services Division of the Department of Transportation (DMV). As part of the application process for that license, defendant submitted a current medical certificate to DMV, which issued a commercial driver’s license to defendant. In December 2005, defendant sold his business and got a new job that did not require him to operate a commercial vehicle.

On September 1, 2006, defendant renewed his driver’s license. He did not intend to renew his commercial driver’s license but intended instead to get an ordinary Class C driver’s license. Defendant did not communicate that intention to DMV, however. DMV, for its part, did not ask defendant which type of license he wanted to renew. Rather, DMV, following its usual practice, provided defendant with an application to renew the same type of license that he had — a commercial driver’s license. The application stated below the signature line “commercial driver’s license.” The application also stated that, “if renewing a commercial driver’s license used in interstate operations, I certify that I meet all requirements contained in the federal regulations,” one of which was possession of a current medical certificate. Consistently with its rules, DMV did not require defendant to submit a current medical certificate when he renewed his license. Rather, the certification on the renewal application sufficed.

Defendant signed the renewal application and paid the fee for renewing a commercial driver’s license. That fee was higher than the fee for renewing an ordinary Class C driver’s license. See ORS 807.370(14), (15) (setting out fees for renewing those types of driver’s licenses). DMV then renewed defendant’s commercial driver’s license. Less than a month later, defendant drove under the influence of intoxicants while holding a commercial driver’s license.

The state charged defendant with driving under the influence of intoxicants, and defendant petitioned to enter into a diversion agreement. In essence, a diversion agreement allows first-time offenders charged with driving under the influence of intoxicants to have that charge dismissed if they successfully complete certain programs. See ORS 813.200 to 813.270 (describing diversion). The state objected, arguing that defendant was not eligible for diversion because he had a commercial driver’s license at the time of the offense. See ORS 813.215(7) (imposing that restriction on diversion). Relying on a ruling that the trial court had made in another case, defendant responded that ORS 813.215(7) did not apply because he had no intent to drive a commercial motor vehicle.

After considering the evidence, the trial court ruled that, if defendant had been using his commercial driver’s license or had intended to use it, he would not be eligible for diversion. The court found, however, that defendant “didn’t intend to renew [his commercial driver’s license], didn’t know that he renewed it, hadn’t been exercising it, doesn’t intend to exercise it, and I think [his renewing it] was simply an oversight.” It followed, the court concluded, that defendant was not one of “the people that [ORS 813.215(7)] was intended to reach.”

The state petitioned for a writ of mandamus, and this court issued an alternative writ directing the trial court either to vacate its order or to show cause for not doing so. The trial court declined to vacate its order and instead issued a supplemental opinion explaining its earlier ruling. In the supplemental opinion, the court restated the reasons that it had articulated at the hearing. The court also noted an additional reason for its ruling. Relying on OAR 735-074-0290(1), which governs applications for an “original * * * commercial permit or driver [’s] license,” the court reasoned that DMV had no authority to renew defendant’s commercial license because defendant had not presented a medical certificate to DMV. This court set the case for argument. The state filed a brief, but defendant did not. The Oregon Criminal Defense Lawyers Association (OCDLA), however, has appeared as amicus curiae and advanced various arguments for upholding the trial court’s ruling. For the reasons set out below, we conclude that the trial court had no authority to allow defendant to enter into a diversion agreement.

We begin with the text of ORS 813.215(7). That statute provides that a defendant is eligible for diversion if, among other things, “[t]he defendant did not have a commercial driver [’s] license at the time of the offense.” Because defendant had a commercial driver’s license at the time of the offense, ORS 813.215(7) bars him from entering into a diversion agreement. We are not free to craft exceptions to that rule; that is, we may not say that a person is disqualified from diversion only if he or she intended to have or use a commercial driver’s license, as the trial court reasoned. The legislature did not require proof of those facts, and we may not insert into ORS 813.215(7) what the legislature has omitted. See US West Communications v. City of Eugene, 336 Or 181, 188, 81 P3d 702 (2003) (stating proposition).¹

Perhaps recognizing that problem, OCDLA does not argue that defendant’s eligibility for diversion turns on his intent (or lack of it) to hold or use a commercial driver’s license. Rather, it advances other arguments in support of the trial court’s ruling. OCDLA argues initially that, as a matter of statute, ORS 813.215(7) does not bar defendant from diversion because defendant did not have a commercial driver’s license at the time of the offense. OCDLA’s argument runs as follows: ORS 801.207 defines a commercial driver’s license as a “driver [’s] license * * * that authorizes its holder to drive a commercial motor vehicle.” ORS 807.100 provides that a person who holds a commercial driver’s license may operate a commercial motor vehicle “only when a medical certificate approved by the Department of Transportation [and issued within the past two years] is in the licensee’s immediate possession.” OCDLA concludes that, because defendant did not have the required medical certificate when he drove under the influence of intoxicants, the license that defendant held did not authorize him to drive a commercial motor vehicle and, thus, under ORS 801.207, was not a commercial driver’s license.

OCDLA’s argument fails to distinguish two related but separate statutory requirements. A commercial driver’s license is a necessary but not sufficient prerequisite for driving a commercial motor vehicle. ORS 807.031(1) - (3). In addition to holding a commercial driver’s license, a person also must have a medical certificate in the person’s immediate possession in order to drive a commercial motor vehicle. ORS 807.100. The fact that a person may not have a medical certificate in his or her immediate possession does not mean he or she does not hold a commercial driver’s license. Put differently, the “license [that defendant held] authorize [d him] to drive a commercial motor vehicle,” see ORS 801.207 (defining commercial driver’s license), even though the fact that he did not possess a medical certificate disabled him from exercising the authority that the license granted.²

OCDLA advances what appears to be a separate argument. It contends that, when defendant applied to renew his license, DMV erroneously issued him a commercial driver’s license without proof that he possessed a current medical certificate. Had DMV asked to see a medical certificate, which defendant did not have, it would not have issued him a commercial driver’s license. Rather, it would have issued him an ordinary Class C driver’s license, and he would have been eligible for diversion when he later drove under the influence of intoxicants. OCDLA observes that “defendant, through no fault of his own, is paying the price for DMV’s failure to comply with its statutory mandate and its own rules.”

We begin by examining the premise of OCDLA’s argument. ORS 807.040(l)(g) provides that, in applying for an original commercial driver’s license,

“the person must submit to the department, in a form approved by the department, the report of a medical examination that establishes, to the satisfaction of the department, that the person meets the medical requirements for the particular class of license.”

That requirement applies equally to persons seeking to renew an existing commercial driver’s license. See ORS 807.150(2) (stating that, “[t]o qualify for renewal of a license under this section, a person must meet all of the requirements under ORS 807.040 for the class of license sought to be renewed”).

OAR 735-074-0290 implements ORS 807.040(l)(g). It provides that an applicant for an original commercial driver’s license must submit a current medical certificate to DMV. OAR 735-074-0290(l).³ The rule does not impose the same requirement on a person who applies to renew an existing commercial driver’s license. OAR, 735-074-0290(3). Under that rule, it is sufficient if a person who applies to renew a commercial driver’s license “certifiies] on the renewal application that he or she meets all of the driver qualification requirements as required by [49 CFR § 383.71].” Id. One of those requirements is that the applicant possess a current medical certificate showing that he or she is physically qualified to drive a commercial motor vehicle. See 49 CFR § 383.71 (imposing that requirement).⁴

DMV complied with the terms of its rule when it renewed defendant’s commercial driver’s license. Defendant signed an application to renew a commercial driver’s license, and the application stated that, if renewing a commercial driver’s license, the applicant certified that he complied with the applicable federal regulations. Because defendant certified that he met those regulations, one of which was that he possessed a current medical certificate, DMVs rules authorized it to renew the commercial driver’s license for which defendant apparently had applied.⁵

We recognize that there may be some question whether an applicant’s certification that he or she possesses a medical certificate stating that the applicant is physically qualified to drive a commercial motor vehicle constitutes a “report of a medical examination” within the meaning of ORS 807.040(l)(g). We need not resolve that question, however, to decide this case. Even if ORS 807.040(1)(g) requires applicants to present a medical certificate to DMV when they apply to renew their commercial driver’s licenses, the question in this case is not whether DMV erred in renewing defendant’s commercial driver’s license without first asking to see a current medical certificate or whether defendant erred in not noticing that he was applying for a license that, according to the trial court’s findings, he never sought. Rather, the question under ORS 813.215(7) is whether defendant “ha[d] a commercial driver [’s] license at the time of the offense.” He did. And, unless we disregard the terms of that statute, which we may not do, a defendant with that status is not eligible for diversion under ORS 813.215(7).⁶

OCDLA argues that, if ORS 813.215(7) disqualifies defendant from diversion, that statute violates Article I, section 20, of the Oregon Constitution and the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution.⁷ We begin with OCDLA’s claim under Article I, section 20. See State v. Kennedy, 295 Or 260, 264-65, 666 P2d 1316 (1983) (addressing state constitutional claims first). This court explained in State v. Clark, 291 Or 231, 237, 630 P2d 810 (1981), that

“[Article I, section 20,] forbids inequality of privileges or immunities not available ‘upon the same terms,’ first, to any citizen, and second, to any class of citizens. In other words, it may be invoked by an individual who demands equality of treatment with other individuals as well as by one who demands equal privileges or immunities for a class to which he or she belongs.”

In this case, OCDLA contends that ORS 813.215(7) imper-missibly distinguishes between two statutorily defined classes of persons. It denies persons who have commercial driver’s licenses the opportunity of participating in diversion — an opportunity that it grants to persons who do not have commercial driver’s licenses.

The difficulty with OCDLA’s argument is that the class it describes, persons who do not have commercial driver’s licenses, does not exist independently of the statutes relating to that class. As this court has explained, those classes are entitled to no protection under Article I, section 20. See, e.g., MacPherson v. DAS, 340 Or 117, 129-30, 130 P3d 308 (2006) (recognizing that proposition). OCDLA’s Article I, section 20, argument thus fails.

OCDLA’s federal equal protection challenge also fails. A classification that “neither burdens a fundamental right nor targets a suspect class” will satisfy the Equal Protection Clause “so long as it bears a rational relation to some legitimate end.” Romer v. Evans, 517 US 620, 631, 116 S Ct 1620, 134 L Ed 2d 855 (1996). OCDLA does not argue that the class of persons who hold commercial driver’s licenses is a suspect class. See id. at 628-29 (identifying suspect classes). Rather, OCDLA argues that ORS 813.215(7) burdens a fundamental right — the right of access to the courts. In particular, OCDLA contends that ORS 813.215(7) impinges on a person’s right to enter into a diversion agreement.

OCDLA’s argument fails to distinguish the right of access to the courts from the right to statutory benefits. The fact that a statute extends a benefit to persons who have Class C driver’s licenses but not to persons who have commercial driver’s licenses does not mean that the state has denied persons who have commercial driver’s licenses access to the courts. Rather, the right of access to the courts involves a person’s ability generally to observe and participate injudicial proceedings. See Tennessee v. Lane, 541 US 509, 523, 124 S Ct 1978, 158 L Ed 2d 820 (2004) (describing scope of the right); Christopher v. Harbury, 536 US 403, 412-14, 122 S Ct 2179, 153 L Ed 2d 413 (2002) (same). Although the Supreme Court has struck down as violative of that right laws that deny certain persons meaningful access to the courts, it never has held that the right guarantees to a person “an opportunity to seek some particular order of relief.” See Christopher, 536 US at 413-14 (so noting); see also Lewis v. Casey, 518 US 343, 354, 116 S Ct 2174, 135 L Ed 2d 606 (1996) (right of access to the courts does not require states to enable persons to discover grievances or litigate effectively once in court).

Because ORS 813.215(7) does not burden a fundamental right, we are left to determine whether ORS 813.215(7) “bears a rational relation to some legitimate end.” See Romer, 517 US at 631 (stating standard). OCDLA acknowledges that ORS 813.215(7) serves a legitimate governmental end — highway safety. OCDLA argues, however, that the statute bears no rational relationship to that end. We reach a different conclusion. The legislature reasonably could conclude that persons who are authorized to drive commercial motor vehicles may either drive larger, heavier vehicles or drive more miles than other drivers. Preventing persons who are authorized either to drive larger vehicles or to drive more frequently from participating in diversion and subjecting them to harsher sanctions the first time that they drive under the influence gives them an incentive to avoid that behavior and thus increases highway safety.

In sum, we conclude that the trial court erred in permitting defendant to enter into a diversion agreement. Defendant was not eligible for diversion under ORS 813.215(7) because he had a commercial driver’s license when he drove under the influence of intoxicants. Disqualifying defendant from diversion for that reason does not violate either Article I, section 20, of the Oregon Constitution or the Equal Protection Clause of the Fourteenth Amendment.

Peremptory writ of mandamus to issue.

Footnotes

1

The question that ORS 813.215(7) asks is whether defendant had a commercial driver’s license, not whether he intended to use it. Neither the trial court nor we are free to overlook the policy choice that those words express in order to advance what the trial court perceived was the better policy.

2

OCDLA’s contrary interpretation of ORS 801.207 overlooks the subject of the verb “authorizes” in that statute. ORS 801.207 defines a commercial driver’s license as a “driver [’s] license issued by this state or any other jurisdiction that authorizes its holder to drive a commercial motor vehicle * * The question under that statute is whether defendant held the license that ORS 801.207 defines. He did, even though he lacked another statutory prerequisite (a medical certificate) for driving a commercial motor vehicle.

3

OAR 735-074-0290(1) provides, in part:

‘DMV will issue a Class A, B, or C commercial driverfs] permit or license only to applicants who present an approved medical certificate when applying for an original Class A, B, or C commercial permit or driver [’s] license.”

(Emphasis added.)

4

49 CFR § 383.71(c)(1) requires an applicant seeking to renew a commercial license to “[plrovide certification contained in Sec. 383.71(a)(1).” 49 CFR § 383.71(a)(1), in turn, requires an applicant to certify “that he/she meets the qualification requirements contained in part 391 of this title.” Part 391 of title 49 requires, among other things, that a person must have a “medical examiner’s certificate that he/she is physically qualified to drive a commercial motor vehicle.” 49 CFR § 391.41(a).

5

We accept, as the trial court found, that defendant did not intend to renew his commercial driver’s license and did not understand that he was certifying that he had a current medical certificate. But OCDLA has identified no basis to say that, given the application to renew a commercial driver’s license that defendant signed, DMV failed to comply with OAR 735-074-0290(3) when it renewed his commercial driver’s license.

6

The dissent notes that, in other contexts, this court has held that a license or permit issued in excess of an agency’s statutory authority was void ab initio. The legislature, however, has not provided in this context that any irregularity in issuing a license renders it void without further process. Rather, the legislature has provided that DMV “may cancel any driving privileges upon determining that the person is not entitled to the driving privileges under the vehicle code,” and the legislature has provided a process for the agency to follow if it wishes to cancel such a license. See ORS 809.310(1) (authorizing cancellation); ORS 809.430 (requiring notice); ORS 809.440 (providing for hearings). DMV did not seek to cancel defendant’s license, and defendant had a commercial driver’s license when he drove under the influence.

7

OCDLA also asserts that ORS 813.215(7) violates the Due Process Clause of the Fourteenth Amendment. OCDLA’s argument under that clause, however, is essentially the same as its argument under the Equal Protection Clause. We therefore treat the two claims as one.