WARDEN, J.
Defendant appeals a judgment declaring him to be a habitual traffic offender. ORS 484.705.
His ground for appeal is the court’s refusal to appoint an attorney to represent him in that proceeding.
Defendant appeared in response to an Order to Show Cause why he should not be declared a habitual traffic offender. He was accompanied by an attorney. The attorney, having been informed by defendant of his indigent status, moved the court to appoint an attorney for defendant. After the court denied this motion, the attorney removed himself from the counsel table and defendant represented himself. The state, represented by a deputy district attorney, then presented its case. The court questioned defendant and reviewed the abstract of his driving record. On the basis of defendant’s three convictions for Driving While Suspended within a five-year period, the court found defendant to be a habitual traffic offender.
We address, first, defendant’s argument that Article I, section 11, of the Oregon Constitution,
as applied in
Brown v. Multnomah County Dist. Ct.,
280 Or 95, 570 P2d 52 (1977), necessitates appointment of counsel for indigents in habitual offender proceedings. In
Brown,
the Supreme Court determined that a person was entitled to court-appointed counsel when he was indigent and charged with the traffic infraction of Driving Under the Influence
of Intoxicants (DUII). ORS 487.540.
The court held that, although the legislature had "decriminalized” the first DUII offense, the infraction still "retain[s] too many penal characteristics not to be a 'criminal prosecution’ under Article I, section 11, of the Constitution.” The court looked at a variety of "indicia” which have been used to determine what is, for constitutional purposes, a criminal prosecution: the type of offense, the prescribed penalty, the collateral consequences, the punitive significance of the sanction, and whether criminal procedures, such as arrest and detention, were involved. It concluded that:
" * * * considering the magnitude of the potential fine, the secondary sanctions in case of non-payment, the relationship of DUII to the other major traffic offenses, the evident legislative desire to emphasize the seriousness of this offense while facilitating its punishment, and the retention of criminal law enforcement procedures, the 1975 code did not free this offense from the punitive traits that characterize a criminal prosecution. Accordingly, petitioner is entitled to the constitutional and statutory protections afforded in the prosecutions of the other major traffic offenses that remained traffic crimes under the code.” 280 Or at 110.
Defendant points out that the habitual traffic offender proceeding is initiated and prosecuted by the district attorney and that defendant is "charged,” according to the language of ORS 484.720(2), with being an offender. While the proceedings do have these aspects of a criminal prosecution, unlike
Brown,
none of the other criminal procedures, such as arrest or detention, are involved, and the purpose is not punitive, but is intended to protect the public. The complaint in this matter is served as a summons in a civil action, ORS 484.725(1), and the appeal is taken as provided in civil cases. ORS 484.750.
In a habitual traffic offender proceeding sanctions of incarceration or fine are not permitted. Defendant points out that the loss of a driver’s license for ten years
is a serious sanction.
However, when the sanction is regulatory, rather than punitive, it does not support the characterization of the statute as criminal. In
Brown,
the Supreme Court stated:
"The offense does not become 'criminal’ rather than 'civil’ merely because the loss of a license is a great inconvenience, so long as the suspension or revocation reflects a legislative, judicial, or administrative judgment that a traffic offender should not continue to drive.” 280 Or at 105.
In
State v. Jackson,
34 Or App 587, 579 P2d 299 (1978), we discussed the Habitual Traffic Offender Act and concluded that it was 'civil,” because it did not result in a finding of guilt or the enhancement of a penalty. Commenting on the regulatory nature of the act, this court stated:
"The consequence of a finding that defendant is a habitual traffic offender is suspension of his vehicle operator’s license, which reflects a legislative determination that the habitual offender should not continue to drive.” 34 Or App at 590.
We reaffirm our conclusion in
Jackson
that the Habitual Traffic Offender Act is civil in nature; the sanction is regulatory rather than punitive.
We turn now to defendant’s reliance on the federal law. Defendant relies on
Argersinger v. Hamlin,
407 US 25, 92 S Ct 2006, 32 L Ed 2d 530 (1972), where the Supreme Court held that a defendant facing imprisonment had a right to the assistance of appointed counsel if indigent.
Argersinger vs,
not in point here, for defendant is not facing incarceration.
Defendant also argues that because one who drives in violation of an order declaring him to be a habitual offender is subject to criminal prosecution and possible imprisonment, ORS 484.740,
denial of assistance of counsel in the habitual offender proceeding violates his right to counsel under the Sixth Amendment of the United States Constitution. A similar claim was made in
Ferguson v. Gathright,
485 F2d 504 (4th Cir 1973), challenging the Virginia Habitual Offender Act. The Virginia act provides procedures closely similar to those in the Oregon act and also provides prosecution and imprisonment for driving during the period of prohibition. In
Ferguson,
the court held that the Sixth Amendment did not compel the appointment of counsel, and we agree. Distinguishing license revocation proceedings from criminal or quasi-criminal cases, the court said:
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WARDEN, J.
Defendant appeals a judgment declaring him to be a habitual traffic offender. ORS 484.705.
His ground for appeal is the court’s refusal to appoint an attorney to represent him in that proceeding.
Defendant appeared in response to an Order to Show Cause why he should not be declared a habitual traffic offender. He was accompanied by an attorney. The attorney, having been informed by defendant of his indigent status, moved the court to appoint an attorney for defendant. After the court denied this motion, the attorney removed himself from the counsel table and defendant represented himself. The state, represented by a deputy district attorney, then presented its case. The court questioned defendant and reviewed the abstract of his driving record. On the basis of defendant’s three convictions for Driving While Suspended within a five-year period, the court found defendant to be a habitual traffic offender.
We address, first, defendant’s argument that Article I, section 11, of the Oregon Constitution,
as applied in
Brown v. Multnomah County Dist. Ct.,
280 Or 95, 570 P2d 52 (1977), necessitates appointment of counsel for indigents in habitual offender proceedings. In
Brown,
the Supreme Court determined that a person was entitled to court-appointed counsel when he was indigent and charged with the traffic infraction of Driving Under the Influence
of Intoxicants (DUII). ORS 487.540.
The court held that, although the legislature had "decriminalized” the first DUII offense, the infraction still "retain[s] too many penal characteristics not to be a 'criminal prosecution’ under Article I, section 11, of the Constitution.” The court looked at a variety of "indicia” which have been used to determine what is, for constitutional purposes, a criminal prosecution: the type of offense, the prescribed penalty, the collateral consequences, the punitive significance of the sanction, and whether criminal procedures, such as arrest and detention, were involved. It concluded that:
" * * * considering the magnitude of the potential fine, the secondary sanctions in case of non-payment, the relationship of DUII to the other major traffic offenses, the evident legislative desire to emphasize the seriousness of this offense while facilitating its punishment, and the retention of criminal law enforcement procedures, the 1975 code did not free this offense from the punitive traits that characterize a criminal prosecution. Accordingly, petitioner is entitled to the constitutional and statutory protections afforded in the prosecutions of the other major traffic offenses that remained traffic crimes under the code.” 280 Or at 110.
Defendant points out that the habitual traffic offender proceeding is initiated and prosecuted by the district attorney and that defendant is "charged,” according to the language of ORS 484.720(2), with being an offender. While the proceedings do have these aspects of a criminal prosecution, unlike
Brown,
none of the other criminal procedures, such as arrest or detention, are involved, and the purpose is not punitive, but is intended to protect the public. The complaint in this matter is served as a summons in a civil action, ORS 484.725(1), and the appeal is taken as provided in civil cases. ORS 484.750.
In a habitual traffic offender proceeding sanctions of incarceration or fine are not permitted. Defendant points out that the loss of a driver’s license for ten years
is a serious sanction.
However, when the sanction is regulatory, rather than punitive, it does not support the characterization of the statute as criminal. In
Brown,
the Supreme Court stated:
"The offense does not become 'criminal’ rather than 'civil’ merely because the loss of a license is a great inconvenience, so long as the suspension or revocation reflects a legislative, judicial, or administrative judgment that a traffic offender should not continue to drive.” 280 Or at 105.
In
State v. Jackson,
34 Or App 587, 579 P2d 299 (1978), we discussed the Habitual Traffic Offender Act and concluded that it was 'civil,” because it did not result in a finding of guilt or the enhancement of a penalty. Commenting on the regulatory nature of the act, this court stated:
"The consequence of a finding that defendant is a habitual traffic offender is suspension of his vehicle operator’s license, which reflects a legislative determination that the habitual offender should not continue to drive.” 34 Or App at 590.
We reaffirm our conclusion in
Jackson
that the Habitual Traffic Offender Act is civil in nature; the sanction is regulatory rather than punitive.
We turn now to defendant’s reliance on the federal law. Defendant relies on
Argersinger v. Hamlin,
407 US 25, 92 S Ct 2006, 32 L Ed 2d 530 (1972), where the Supreme Court held that a defendant facing imprisonment had a right to the assistance of appointed counsel if indigent.
Argersinger vs,
not in point here, for defendant is not facing incarceration.
Defendant also argues that because one who drives in violation of an order declaring him to be a habitual offender is subject to criminal prosecution and possible imprisonment, ORS 484.740,
denial of assistance of counsel in the habitual offender proceeding violates his right to counsel under the Sixth Amendment of the United States Constitution. A similar claim was made in
Ferguson v. Gathright,
485 F2d 504 (4th Cir 1973), challenging the Virginia Habitual Offender Act. The Virginia act provides procedures closely similar to those in the Oregon act and also provides prosecution and imprisonment for driving during the period of prohibition. In
Ferguson,
the court held that the Sixth Amendment did not compel the appointment of counsel, and we agree. Distinguishing license revocation proceedings from criminal or quasi-criminal cases, the court said:
" * * * In the [license revocation] situation, the defendant loses simply his right to operate a motor vehicle on the public highways; he suffers no loss of liberty or threat of incarceration. [Footnote omitted.] He is not substantially different in condition from thousands of others, who, for one reason or another, have been denied, or have suffered a loss of, a driving permit. [Footnote omitted.] He comes under the threat of incarceration
only if
he subsequently determines to take the law into his own hands and to operate a motor vehicle on the public highway without a valid permit.
"His situation, in those circumstances, is substantially similar in principle to that of the person, who, denied a renewal of his license because of impaired vision or other cause, drives a motor vehicle on the public highway. It is
his subsequent defiance of the law, and only indirectly his revocation proceedings, that brings into play the criminal processes and places him in peril of imprisonment. * * * ” 485 F2d at 506. (Emphasis in original.)
The court in
Ferguson
went on to draw analogies between the situation of a defendant whose driver’s license is revoked and those of insurance agents, security salesmen and charitable foundations whose licenses have been revoked and are subsequently prosecuted criminally for violating their license revocations. It cites authority in each of the latter situations, holding that the revocation procedures are civil, not quasi-criminal, and that, therefore, the defendants were not entitled to counsel in their respective revocation proceedings.
See also, People v. McKnight,
617 P2d 1178 (Colo 1980).
Affirmed.