ROSSMAN, J.
Defendant was charged with falsifying business records, ORS 165.080, and forgery, ORS 165.007. He filed a pre-trial motion to dismiss the state’s complaint on the ground that he was immune from prosecution under ORS 471.770.
The trial court granted defendant’s motion. The state appeals, and we affirm.
The relevant facts are not in dispute. Defendant was certified by the Oregon Liquor Control Commission (OLCC) to operate an alcohol server education program. On August 31, 1987, OLCC notified defendant that it proposed to cancel his certification on the ground that he had falsified certain records. On October 1,1987, defendant was arraigned on criminal charges sworn out by an OLCC staff person. OLCC’s “third amended notice” of proposed cancellation, served on defendant October 6, 1987, contained allegations generally corresponding to those in its criminal complaint. On October 15, 1987, pursuant to a subpena issued by OLCC, defendant appeared at a deposition and testified under oath regarding the matters' alleged in the cancellation notice and essentially admitted the truth of OLCC’s charges. At no time during the deposition did he assert a right against self-incrimination. Defendant filed his motion to dismiss the criminal complaint on October 23,1987.
ORS 471.770 provides:
“No person shall be excused from testifying
or from producing any books, papers or documents
in any investigation or inquiry
by or upon any hearing before the commission or any commissioner
when ordered so to do by the commission or any of its authorized agents, upon the ground that the testimony,
evidence, books, papers or documents required of the person
may tend to incriminate the person
or subject the person to penalty or forfeiture.
No person shall be prosecuted,
punished or subjected to any penalty or forfeiture
for
or on account of
any
act, transaction,
matter
or thing
concerning which the person shall, under oath, have, by order of the commission,
or a commissioner,
or any of its authorized agents, testified to
or produced documentary evidence of; but no person so testifying shall be exempt from prosecution or
punishment for any perjury committed by the person in testimony.” (Emphasis supplied.)
The state argues that ORS 183.450(1)
and ORS 471.765
provide that a witness, although subpenaed, may refuse to testify if he or she has a “legal excuse” such as the right against self-incrimination. Thus, it argues, a subpena is not an order by the commission to
testify
but merely to
appear.
Because a subpena is not an order to testify, the state argues, the immunity conferred by the statute is not self-executing. Rather, it requires that, to receive immunity, a witness first invoke the right against self-incrimination, then be ordered by the commission to testify, notwithstanding the right.
We reject the state’s argument for two reasons. First, the commission’s subpena to defendant clearly ordered him to appear
to testify.
It stated, in part:
“IN THE NAME OF THE STATE OF OREGON:
“You are hereby commanded to appear
at 4:30 o’clock p.m., Thursday, the 15th day of October, 1987,
as a witness
before the Oregon Liquor Control Commission for a hearing * * * to
testify
in the matter involving the provider certification of William Strance * * (Emphasis supplied.)
This language makes it clear that, in subpenaing defendant, OLCC was ordering him to testify under threat of penalty for contempt.
Indeed, no reasonable layperson could construe a
command “to appear * * * as a witness * * * to testify” as anything other than an order to testify. It follows that ORS 471.770 conferred immunity on defendant for his testimony.
Second, like the statute in
State v. Hennessey,
195 Or at 355, 245 P2d 875 (1952),
ORS 471.770 tells the person that he may not refuse to testify on the grounds that his testimony may incriminate him.
“Under this statute, any person subpoenaed as a witness
* * *
must testify, irrespective of whether or not his testimony will incriminate himself. He cannot refuse to answer, but he [is] not without protection. The state by this statute trades absolute immunity from prosecution for the individual’s constitutional privilege against self-incrimination.” 195 Or at 366.
Requiring defendant to claim the privilege against self-incrimination in order to obtain the immunity promised by ORS 471.770 would be to require a “vain and useless thing.” 195 Or at 367. More importantly, the statute is clear on its face. It “means to the layman that if he is subpoenaed, and sworn, and testifies, he is to have immunity.”
U.S. v. Monia,
317 US 424, 426, 87 L Ed 2d 376, 63 S Ct 409 (1942) (cited in
State v. Hennessey, supra,
195 Or at 369). To accept the state’s highly technical interpretation would make ORS 471.770 nothing more than a trap for the unwary. As the Court observed in
Hennessey,
we cannot permit a constitutional liberty to be frittered away by a “fine-spun legal technicality.” 195 Or at 371. The “subpoena itself is sufficient compulsion to make the immunity effective.” 195 Or at 367.
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ROSSMAN, J.
Defendant was charged with falsifying business records, ORS 165.080, and forgery, ORS 165.007. He filed a pre-trial motion to dismiss the state’s complaint on the ground that he was immune from prosecution under ORS 471.770.
The trial court granted defendant’s motion. The state appeals, and we affirm.
The relevant facts are not in dispute. Defendant was certified by the Oregon Liquor Control Commission (OLCC) to operate an alcohol server education program. On August 31, 1987, OLCC notified defendant that it proposed to cancel his certification on the ground that he had falsified certain records. On October 1,1987, defendant was arraigned on criminal charges sworn out by an OLCC staff person. OLCC’s “third amended notice” of proposed cancellation, served on defendant October 6, 1987, contained allegations generally corresponding to those in its criminal complaint. On October 15, 1987, pursuant to a subpena issued by OLCC, defendant appeared at a deposition and testified under oath regarding the matters' alleged in the cancellation notice and essentially admitted the truth of OLCC’s charges. At no time during the deposition did he assert a right against self-incrimination. Defendant filed his motion to dismiss the criminal complaint on October 23,1987.
ORS 471.770 provides:
“No person shall be excused from testifying
or from producing any books, papers or documents
in any investigation or inquiry
by or upon any hearing before the commission or any commissioner
when ordered so to do by the commission or any of its authorized agents, upon the ground that the testimony,
evidence, books, papers or documents required of the person
may tend to incriminate the person
or subject the person to penalty or forfeiture.
No person shall be prosecuted,
punished or subjected to any penalty or forfeiture
for
or on account of
any
act, transaction,
matter
or thing
concerning which the person shall, under oath, have, by order of the commission,
or a commissioner,
or any of its authorized agents, testified to
or produced documentary evidence of; but no person so testifying shall be exempt from prosecution or
punishment for any perjury committed by the person in testimony.” (Emphasis supplied.)
The state argues that ORS 183.450(1)
and ORS 471.765
provide that a witness, although subpenaed, may refuse to testify if he or she has a “legal excuse” such as the right against self-incrimination. Thus, it argues, a subpena is not an order by the commission to
testify
but merely to
appear.
Because a subpena is not an order to testify, the state argues, the immunity conferred by the statute is not self-executing. Rather, it requires that, to receive immunity, a witness first invoke the right against self-incrimination, then be ordered by the commission to testify, notwithstanding the right.
We reject the state’s argument for two reasons. First, the commission’s subpena to defendant clearly ordered him to appear
to testify.
It stated, in part:
“IN THE NAME OF THE STATE OF OREGON:
“You are hereby commanded to appear
at 4:30 o’clock p.m., Thursday, the 15th day of October, 1987,
as a witness
before the Oregon Liquor Control Commission for a hearing * * * to
testify
in the matter involving the provider certification of William Strance * * (Emphasis supplied.)
This language makes it clear that, in subpenaing defendant, OLCC was ordering him to testify under threat of penalty for contempt.
Indeed, no reasonable layperson could construe a
command “to appear * * * as a witness * * * to testify” as anything other than an order to testify. It follows that ORS 471.770 conferred immunity on defendant for his testimony.
Second, like the statute in
State v. Hennessey,
195 Or at 355, 245 P2d 875 (1952),
ORS 471.770 tells the person that he may not refuse to testify on the grounds that his testimony may incriminate him.
“Under this statute, any person subpoenaed as a witness
* * *
must testify, irrespective of whether or not his testimony will incriminate himself. He cannot refuse to answer, but he [is] not without protection. The state by this statute trades absolute immunity from prosecution for the individual’s constitutional privilege against self-incrimination.” 195 Or at 366.
Requiring defendant to claim the privilege against self-incrimination in order to obtain the immunity promised by ORS 471.770 would be to require a “vain and useless thing.” 195 Or at 367. More importantly, the statute is clear on its face. It “means to the layman that if he is subpoenaed, and sworn, and testifies, he is to have immunity.”
U.S. v. Monia,
317 US 424, 426, 87 L Ed 2d 376, 63 S Ct 409 (1942) (cited in
State v. Hennessey, supra,
195 Or at 369). To accept the state’s highly technical interpretation would make ORS 471.770 nothing more than a trap for the unwary. As the Court observed in
Hennessey,
we cannot permit a constitutional liberty to be frittered away by a “fine-spun legal technicality.” 195 Or at 371. The “subpoena itself is sufficient compulsion to make the immunity effective.” 195 Or at 367.
The state contends that interpreting ORS 471.770 to provide automatic immunity for witnesses who testify pursuant to an OLCC subpena could “inadvertently immunize witnesses who should be criminally prosecuted” and permit affirmative abuse of the statute. By ruling that immunity is not granted unless the privilege against self-incrimination is
claimed, however, we would be flying in the face of the statutory pronouncement that “no person shall be prosecuted * * * for * * * any * * * matter * * * concerning which the person shall, under oath, have, by order of the commission * * * testified to.” ORS 471.770. If there is a problem, it is a legislative one; the legislature knows how to write an immunity statute that requires the witness to claim the right against self-incrimination before receiving immunity and has done so.
See, e.g.,
ORS 756.549.
Any change in the effect of ORS 471.770 must come from the legislature, not the courts.
The trial court properly dismissed the complaint.
Affirmed.