State v. Wood

Court of Appeals of Oregon

State v. Wood

164 P.3d 1224, 214 Or. App. 394, 2007 Ore. App. LEXIS 1061

CourtCourt of Appeals of Oregon

DecidedAugust 1, 2007

Docket04081695; A129909

StatusPublished

This text of 164 P.3d 1224 (State v. Wood) 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. Wood, 164 P.3d 1224, 214 Or. App. 394, 2007 Ore. App. LEXIS 1061 (Or. Ct. App. 2007).

Pincite

Opinion

PER CURIAM

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII). ORS 813.010. He argues that the trial court erred at sentencing when it permanently revoked defendant’s driving privileges pursuant to ORS 809.235(l)(b) (2003), amended by Or Laws 205, ch 436, § 1, which requires permanent revocation of driving privileges when a defendant has been convicted of DUII “for a third time.” Defendant contends that, because his current conviction is actually his fourth conviction, the statute does not apply. The state responds that defendant did not preserve the assignment, that it is not reviewable as plain error, and that, in any event, defendant’s reading of the statute is incorrect.

At sentencing, defendant’s counsel did object to the permanent revocation of defendant’s driving privileges. What he said, however, was that “I want to preserve [defendant’s] ability to appeal [the permanent revocation] as an excessive sanction.” Defendant did not mention the issue of statutory construction that he now raises, much less assert the particular construction that he now advances before us. In determining whether an issue has been preserved, one of the most significant questions is whether the trial court was given a realistic opportunity to avoid the error that is asserted on appeal. State ex rel Juv. Dept. v. Tyree, 177 Or App 187, 190, 33 P3d 729 (2001). In this case, the trial court never was given that opportunity. The assignment was not preserved. Nor is it plain error. State v. Dollarhide, 214 Or App 329, 164 P3d 1222 (2007).

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII). ORS 813.010. He argues that the trial court erred at sentencing when it permanently revoked defendant’s driving privileges pursuant to ORS 809.235(l)(b) (2003), amended by Or Laws 205, ch 436, § 1, which requires permanent revocation of driving privileges when a defendant has been convicted of DUII “for a third time.” Defendant contends that, because his current conviction is actually his fourth conviction, the statute does not apply. The state responds that defendant did not preserve the assignment, that it is not reviewable as plain error, and that, in any event, defendant’s reading of the statute is incorrect.

At sentencing, defendant’s counsel did object to the permanent revocation of defendant’s driving privileges. What he said, however, was that “I want to preserve [defendant’s] ability to appeal [the permanent revocation] as an excessive sanction.” Defendant did not mention the issue of statutory construction that he now raises, much less assert the particular construction that he now advances before us. In determining whether an issue has been preserved, one of the most significant questions is whether the trial court was given a realistic opportunity to avoid the error that is asserted on appeal. State ex rel Juv. Dept. v. Tyree, 177 Or App 187, 190, 33 P3d 729 (2001). In this case, the trial court never was given that opportunity. The assignment was not preserved. Nor is it plain error. State v. Dollarhide, 214 Or App 329, 164 P3d 1222 (2007).

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

164 P.3d 1224, 214 Or. App. 394, 2007 Ore. App. LEXIS 1061, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-wood-orctapp-2007.

Opinion

Related

Cite This Page — Counsel Stack