State v. Palomino

Court of Appeals of Oregon

State v. Palomino

631 P.2d 802, 53 Or. App. 194, 1981 Ore. App. LEXIS 2959

CourtCourt of Appeals of Oregon

DecidedJuly 27, 1981

DocketC 80-01-30231; CA 18383

StatusPublished

Cited by2 cases

This text of 631 P.2d 802 (State v. Palomino) 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.

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State v. Palomino, 631 P.2d 802, 53 Or. App. 194, 1981 Ore. App. LEXIS 2959 (Or. Ct. App. 1981).

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Opinion

BUTTLER, P. J.

Defendant appeals his conviction of driving while suspended, ORS 487.560(6)(f),¹ a felony, contending only that his motion to suppress and exclude as evidence two suspension orders was improperly denied. We affirm.

Defendant’s contention is that the suspension orders were invalid because they failed to mention his right to a presuspension hearing, which notification, he contends, is constitutionally and statutorily required. It is problematic whether defendant may raise the question because he was not entitled to raise the affirmative defense of "no notice”; he had moved and had not informed the Motor Vehicles Division in writing of his change in address as required by ORS 482.290(3).² ORS 487.560(3)(b).³

Assuming that a fatally defective notice may obviate the incapacity to raise the affirmative defense of "no notice,” one of the suspension orders resulted from defendant’s third conviction for driving under the influence of [197]*197intoxicants within a five-year period. ORS 486.430(3).⁴ There is no statutory or constitutional requirement for a presuspension hearing, or notice thereof, for a mandatory suspension under that statute. The notice statute on which defendant relies, ORS 486.221, is limited to suspensions under ORS 486.046, 486.211 and 486.251.

Defendant relies on Bell v. Burson, 402 US 535, 91 S Ct 1586, 29 L Ed 2d 90 (1971), in support of his claim that procedural due process requires that a licensee receive notice and hearing before his driver’s license is suspended. Bell has been substantially limited by subsequent cases, including Dixon v. Love, 431 US 105, 97 S Ct 1723, 52 L Ed 2d 172 (1977), in which the court held no such notice or hearing was required for summary revocation based on habitual violation of traffic laws. See also, Mackey v. Montrym, 443 US 1, 99 S Ct 2612, 61 L Ed 2d 321 (1979); Mathews v. Eldridge, 424 US 319, 96 S Ct 893, 47 L Ed 2d 18 (1976).

Accordingly, regardless of whether the first suspension order was admissible, the mandatory suspension order under ORS 482.430(3) was admissible, and that order alone is sufficient to sustain defendant’s conviction.

Affirmed.

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BUTTLER, P. J.

Defendant appeals his conviction of driving while suspended, ORS 487.560(6)(f),¹ a felony, contending only that his motion to suppress and exclude as evidence two suspension orders was improperly denied. We affirm.

Defendant’s contention is that the suspension orders were invalid because they failed to mention his right to a presuspension hearing, which notification, he contends, is constitutionally and statutorily required. It is problematic whether defendant may raise the question because he was not entitled to raise the affirmative defense of "no notice”; he had moved and had not informed the Motor Vehicles Division in writing of his change in address as required by ORS 482.290(3).² ORS 487.560(3)(b).³

Assuming that a fatally defective notice may obviate the incapacity to raise the affirmative defense of "no notice,” one of the suspension orders resulted from defendant’s third conviction for driving under the influence of [197]*197intoxicants within a five-year period. ORS 486.430(3).⁴ There is no statutory or constitutional requirement for a presuspension hearing, or notice thereof, for a mandatory suspension under that statute. The notice statute on which defendant relies, ORS 486.221, is limited to suspensions under ORS 486.046, 486.211 and 486.251.

Defendant relies on Bell v. Burson, 402 US 535, 91 S Ct 1586, 29 L Ed 2d 90 (1971), in support of his claim that procedural due process requires that a licensee receive notice and hearing before his driver’s license is suspended. Bell has been substantially limited by subsequent cases, including Dixon v. Love, 431 US 105, 97 S Ct 1723, 52 L Ed 2d 172 (1977), in which the court held no such notice or hearing was required for summary revocation based on habitual violation of traffic laws. See also, Mackey v. Montrym, 443 US 1, 99 S Ct 2612, 61 L Ed 2d 321 (1979); Mathews v. Eldridge, 424 US 319, 96 S Ct 893, 47 L Ed 2d 18 (1976).

Accordingly, regardless of whether the first suspension order was admissible, the mandatory suspension order under ORS 482.430(3) was admissible, and that order alone is sufficient to sustain defendant’s conviction.

Affirmed.

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631 P.2d 802, 53 Or. App. 194, 1981 Ore. App. LEXIS 2959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-palomino-orctapp-1981.

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