State v. Benoit , 354 Or. 302 ( 2013 )

302 October 3, 2013 No. 48
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Relator,
v.
LAURIE ANN BENOIT,
Defendant-Adverse Party.
(CC 111051946; SC S060858)
En Banc
On alternative writ of mandamus order dated January 29,
2013.*
Argued and submitted June 5, 2013.
Jeremy Rice, Assistant Attorney General, Salem, argued
the cause for relator State of Oregon. With him on the brief
were Ellen F. Rosenblum, Attorney General, and Anna M.
Joyce, Solicitor General.
Cody Hoesly, Larkins Vacura LLP, Portland, Cooperating
Attorney for amicus curiae ACLU Foundation of Oregon, Inc.,
argued the cause for adverse party. With him on the amicus
brief was Kevin Diaz, Legal Director, ACLU Foundation of
Oregon, Inc. Bruce Tarbox, Bruce Tarbox PC, Oregon City,
attorney for adverse party joined this brief.
Bronson James, Portland, filed a brief on behalf of amicus
curiae, Oregon Criminal Defense Lawyers Association.
BREWER, J.
The petition for writ of mandamus is dismissed.
______________
*  On petition for alternative writ of mandamus from an order of Multnomah
County Circuit Court, Cheryl Albrecht, Judge.
Cite as 354 Or 302 (2013) 303
In this mandamus proceeding the issue presented is whether the state’s
election under ORS 161.566(1) to “treat” the misdemeanor offense of criminal
trespass as a violation effectively decriminalized that offense and thereby deprived
defendant of the right to a jury trial afforded her under Article I, section 11, of the
Oregon Constitution. Defendant was arrested and charged with misdemeanor
criminal trespass. At her arraignment, the state elected to treat the charge as
a violation pursuant to ORS 161.566(1). Following that election, defendant filed
a motion for a jury trial. The trial court granted that motion, after concluding
that the violation charge against defendant qualified as a “criminal prosecution”
under Article I, section 11. The state filed a petition for a writ of mandamus in the
Supreme Court on that issue. Held: Article I, section 11, applies to all “criminal
prosecutions” and the Supreme Court found no textual, historical, or logical
support for the state’s proposition that the proceeding against defendant, which
began as a criminal proceeding with her arrest, booking, and incarceration for
a crime could, in the absence of her consent, be transformed without further
constitutional consequence into a noncriminal proceeding under ORS 161.566.
Accordingly, because the circuit court had correctly granted defendant’s motion
for a jury trial, the Supreme Court dismissed the state’s petition for a writ of
mandamus.
The petition for writ of mandamus is dismissed.
304 State v. Benoit
BREWER, J.
The right to a jury trial under Article I, section 11,
of the Oregon Constitution, extends to “all criminal prose-
cutions.”1 The issue in this mandamus proceeding is whether
the state’s election under ORS 161.566(1) 2 to “treat” the mis-
demeanor offense of criminal trespass as a violation effec-
tively decriminalized that offense and thereby deprived defen-
dant of the jury trial right afforded her under Article I,
section 11.3
On October 11, 2011, defendant was arrested, hand-
cuffed, booked, and lodged in jail along with other 49 other
“Occupy Portland” protesters. She was then charged with
second-degree criminal trespass, a Class C misdemeanor. See
ORS 164.243 (so providing). At defendant’s arraignment, the
state elected to treat that charge as a violation pursuant to
ORS 161.566(1). Under ORS 153.076, violation proceedings
must be tried to the court, and certain other protections for
criminal defendants are unavailable.4 After the state made
its election, defendant filed a motion for a trial by jury. Rely-
ing on the Court of Appeals’ recent decision in State v.
Fuller, 252 Or App 391, 287 P3d 1263 (2012) (holding that
1
Article I, section 11, of the Oregon Constitution, provides, in part:
“In all criminal prosecutions, the accused shall have the right to public trial
by an impartial jury in the county in which the offense shall have been
committed[.]”
2
The 2009 version of ORS 161.566 was in effect when defendant allegedly
committed her offense. However, because the 2011 version of the statute is
identical in most material respects to the 2009 version, for convenience, we refer
to the current version of the statute in this opinion unless otherwise indicated. We
set out relevant text of ORS 161.566 later in this opinion.
3
Defendant has not appeared in this mandamus proceeding. However, amici
ACLU Foundation of Oregon, Inc., and the Oregon Criminal Defense Lawyers
Association have filed briefs on the merits in support of her position. In addition,
counsel for amicus ACLU Foundation of Oregon, Inc., was granted permission to
argue the cause in support of defendant’s position.
4
ORS 153.076 provides, in part:
“(1)  Violation proceedings shall be tried to the court sitting without jury.
* * *.
“(2)  The state, municipality or political subdivision shall have the burden
of proving the charged violation by a preponderance of the evidence.
“* * * * *
“(5)  Defense counsel shall not be provided at public expense in any pro-
ceeding in which only violations are charged.”
Cite as 354 Or 302 (2013) 305
the defendant was entitled to a jury trial on charges of third-
degree theft, notwithstanding the prosecutor’s election to
treat the offense as a violation), the trial court concluded
that the violation charge against defendant qualified as a
criminal prosecution under Article I, section 11. The trial
court therefore granted defendant’s motion for trial by jury,
and the state filed a petition for a writ of mandamus in this
court on that issue. For the reasons explained below, we
agree with the trial court that defendant is entitled to a jury
trial on the violation charge, although our reasoning differs
in some respects from that of the Court of Appeals in Fuller
and the trial court here. Accordingly, we dismiss the state’s
petition.
For various reasons, including budgetary constraints,
legislatures around the country have relatively recently
begun to treat certain offenses as violations. In Oregon,
the legislature created an offense classification for viola-
tions in 1971, as part of a general revision to the criminal
code. Or Laws 1971, ch 743, § 65; ORS 161.505 (“offense” is
either a “crime” or a “violation”). Under that new classifica-
tion, a violation was punishable by only a fine, forfeiture,
or other civil penalty, and offenses that were either specif-
ically designated as such or were punishable by only fines,
forfeitures, or other civil penalties were to be considered vio-
lations. Or Laws 1971, ch 743, § 71. In 1987, the legislature
enacted a statute giving trial courts the option to treat any
misdemeanor charge except a misdemeanor created under
the Oregon Vehicle Code as a violation if, before the defen-
dant entered a plea to the charge, the court declared that
it intended to do so and the state did not object. Former
ORS 161.565(2) (1987). In 1989, the legislature altered the
statutory scheme to provide that all misdemeanor charges
would proceed as violations unless, before the defendant
entered a plea to the charge, the district attorney declared
on the record that the case would proceed as a misdemeanor.
Former ORS 161.565(2) (1989). Finally, in 1999, the legis-
lature repealed former ORS 161.565 and replaced it with
ORS 161.566, which remains in effect today. Or Laws 1999,
ch 1051, §§ 47, 49. In doing so, the legislature established
a scheme in which misdemeanors now are tried as crimes
rather than as violations, unless the state elects otherwise.
306 State v. Benoit
Under ORS 161.566(1), subject to exceptions not per-
tinent here, “a prosecuting attorney may elect to treat any
misdemeanor as a Class A violation.”5 The state merely
needs to make that election by the time of the defendant’s
first appearance. The violation is then prosecuted without
a jury or appointed counsel, the standard of proof is by a
preponderance of the evidence, and various other rights of
criminal defendants are eliminated. See ORS 153.076(1), (2),
and (5) (setting out procedures for trial of violations). Thus,
defendants in violation proceedings lose certain procedural
safeguards against the risk of erroneous conviction. However,
when a misdemeanor is treated as a violation, a conviction
cannot lead to incarceration. See ORS 153.090 (setting out
possible contents of judgments in violation proceedings).
The question in this mandamus proceeding is
whether, notwithstanding the prosecutor’s election to treat
the misdemeanor offense of second-degree criminal trespass
as a violation, defendant was entitled to a jury trial in this
case. As an initial matter, we observe that, as a result of the
prosecutor’s election, defendant is not entitled to a jury trial
under any statute. Although ORS 136.001(1) provides that
defendants in “criminal” prosecutions “have the right to
public trial by an impartial jury,” ORS 153.030(1) specifies
that “[t]he procedures provided for in [ORS chapter 153]
apply” to the prosecution of all violations described in ORS
153.008. ORS chapter 153, as we have noted, eliminates
trial by jury and certain other rights of criminal defendants
in violation proceedings, and ORS 153.008(1)(d), in turn,
defines covered violations to include cases in which the
prosecuting attorney has elected to treat an offense as a
violation under ORS 161.566. Thus, notwithstanding that
defendant initially was arrested for and charged with com-
mitting a misdemeanor offense, the prosecutor’s election to
treat that offense as a violation means that, under the appli-
cable statutes, defendant is not entitled to a jury trial.
5
ORS 161.566(1) provides:
“(1) Except as provided in subsection (4) of this section, a prosecuting
attorney may elect to treat any misdemeanor as a Class A violation. The
election must be made by the prosecuting attorney orally at the time of the
first appearance of the defendant or in writing filed on or before the time
scheduled for the first appearance of the defendant. If no election is made
within the time allowed, the case shall proceed as a misdemeanor.”
Cite as 354 Or 302 (2013) 307
ORS 153.005(4) does not compel a different conclu-
sion. That provision defines a “violation proceeding” as a pro-
ceeding initiated “by issuance of a citation,” which a “reduced”
misdemeanor prosecution is not. As explained above, how-
ever, ORS 153.030 declares that the procedures set out in
chapter 153 apply to all violations, including violations
reduced from misdemeanors pursuant to ORS 161.566. That
is, ORS 153.030 expressly incorporates all procedures from
chapter 153—including those found in ORS 153.076—into
proceedings that involve “reduced” misdemeanors. Thus,
ORS 153.030 requires the application of ORS 153.076 in this
case.
We turn, then, to consider whether the Oregon
Constitution permits defendant to be deprived of a jury trial
in this case. As noted, Article I, section 11, provides, in part,
that, “[i]n all criminal prosecutions, the accused shall have
the right to public trial by an impartial jury in the county
in which the offense shall have been committed.” Under
Article I, section 11, whether a proceeding is a “criminal prose-
cution” is key to determining whether a jury trial and the
other protections that Article I, section 11, affords defendants
are required.
This court addressed the issue of what constitutes
a “criminal prosecution” for purposes of the jury trial right
in Article I, section 11, in Brown v. Multnomah County Dist.
Court, 280 Or 95, 570 P2d 52 (1977). In that case, the defendant
had been charged with a first offense of driving under the
influence of intoxicants (DUII), which the legislature had
designated as a “traffic infraction” rather than a “traffic
crime.” Under then-applicable statutes, defendants being
tried for traffic infractions did not, among other things, have
the right to appointed counsel, the right to a jury trial, or
the right to have the charged offense proved beyond a rea-
sonable doubt. The issue before the court in Brown was
whether, despite the legislature’s effort to decriminalize a first
DUII offense, that offense nonetheless remained a “criminal
prosecution” for purposes of Article I, section 11. If so, then
the offense could not be tried without the constitutional safe-
guards guaranteed to defendants in criminal prosecutions.
308 State v. Benoit
In deciding the issue, the court began by observing
that there is no easy test for determining whether a pro-
ceeding to impose a sanction is a “criminal prosecution”
within the meaning of Article I, section 11. The court stated
that the legislature’s treatment of conduct as a criminal
offense is sufficient to establish that it is a criminal offense
for constitutional purposes, but the converse is not true:
“[I]t does not follow that a law can avoid [the attachment of
constitutional consequences] simply by avoiding the term
‘criminal’ in defining the conduct to be penalized.”
Brown, 280 Or at 102. Then, from a review of useful law
review articles, the court developed a list of factors that have
been used to determine whether an ostensibly civil penalty
proceeding remains a “criminal prosecution” for constitu-
tional purposes.6
The factors that the court identified are (1) the
type of offense, including, for example, whether the offense
was a crime at common law, or whether it involves tradi-
tional elements of mens rea or a lower degree of culpability;
(2) the penalty incurred, and, specifically, whether there
is the potential for imprisonment or a heavy fine; (3) col-
lateral consequences, such as, in Brown, the revocation or
suspension of a driver license; (4) punitive significance of
the prosecution, that is, whether a judgment is stigmatizing
and condemnatory; and (5) the role, if any, of pretrial arrest
and detention. Id. at 102-09. The court stated, further, that
“[a]ll [those factors] are relevant, but none is conclusive” in
reaching the “ultimate determination” whether a proceeding
is a “criminal prosecution” for constitutional purposes. Id.
at 102. After considering those factors, the court in Brown
concluded that the first DUII offense retained “too many
penal characteristics” not to be a criminal prosecution for
purposes of Article I, section 11. Id. at 109-11.
6
We note that the court in Brown did not purport to derive those factors from
the text or context of Article I, section 11, itself. Brown was decided before this court
established its methodology for interpreting original constitutional provisions such
as Article I, section 11, in Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992).
Under Priest, to determine the meaning of a constitutional provision, the court
examines the constitutional text in its context, then the historical circumstances of
the adoption of the provision, and, finally, the case law construing it. Neither party
has asked us to reconsider Brown; accordingly, we continue to apply the Brown
factors in evaluating whether a proceeding is a “criminal prosecution” for purposes
of Article I, section 11.
Cite as 354 Or 302 (2013) 309
The state urges that the second factor that the court
identified in Brown—the potential penalty arising from a
conviction—is paramount and that it is dispositive in this
case. The state argues that this court has long recognized
that Article I, section 11, does not apply to “petty,” noncrimi-
nal offenses. See, e.g., Wong v. City of Astoria, 13 Or 538,
545, 11 P. 295 (1886) (enforcement of a penalty—a fine—for
violating a city ordinance against licentiousness is not a
criminal prosecution, and the constitution does not require
jury trial); Cranor v. City of Albany, 43 Or 144, 148, 71 P. 1042
(1903) (constitutional right to jury trial “generally regarded
as having no application to the prosecution of minor and
trivial offenses before justices and police magistrates, as such
offenses were summarily punished at common law”). The
state asserts that this court in Brown emphasized that the
potential penalty arising from a conviction is “the single most
important criterion” for assessing whether a jury trial is
required, and that the other factors are less important. 280
Or at 103. That is so, the state contends, because a criminal
prosecution is, at its core, merely a “proceeding to impose
a criminal punishment,” State v. Selness, 334 Or 515, 535,
54 P3d 1025 (2002), and the purpose of the jury trial right
is to prevent the unjust imposition of such a punishment,
Apodaca v. Oregon, 406 U.S. 404, 410, 92 S. Ct. 1628, 32 L. Ed. 2d
184 (1972). Thus, according to the state, when a proceeding
presents no risk of incarceration or a severe financial
penalty, the constitutional jury trial right is not implicated.
The state acknowledges that the other Brown factors might
carry some weight in a particular case, but, it argues, a
proceeding that does not present any possibility of a criminal
penalty is presumptively noncriminal.
In this case, the state observes, defendant could not
be incarcerated on a violation conviction for second-degree
criminal trespass,7 and the maximum fine that the trial
court could impose for a violation conviction of that offense
is $1,250. ORS 161.566(2) (2009) (fine may not exceed the
amount provided in ORS 161.635); 8 ORS 161.635 (maximum
7
A person convicted of a Class C misdemeanor, by contrast, is subject to a
possible term of imprisonment of 30 days. ORS 161.615.
8
ORS 161.566(2) (2009) was amended in 2011 to establish a minimum fine for
a violation conviction, Or Laws 2011, ch 597, § 16, and again in 2012 to effectively
310 State v. Benoit
fine for Class C misdemeanor is $1,250). The state notes
that the court stated in Brown that “a large fine may be as
severe, in practical terms, as a short imprisonment, and so
strikingly severe as to carry the same punitive significance.”
280 Or at 104. But, in this case, the state contends, a fine of
$1,250 is not shocking or disproportionate, nor is it so severe
as to approximate the loss of liberty created by imprisonment.
Therefore, the state argues, application of the “penalty” factor
establishes that a jury trial was not constitutionally required
in this case.
The state also argues that none of the other Brown
factors dictate a different result. The state asserts that the
“type of offense” charged here is noncriminal, in light of the
fact that the prosecution elected to decriminalize the charge
against defendant under ORS 161.566 (factor 1). The state
also observes that no collateral consequences will result from
a conviction (factor 3). In addition, the state urges, the fact
that the legislature chose to punish the offense of second-
degree criminal trespass as a misdemeanor subject to only
a small fine and a brief term of incarceration means that
the punitive significance of a conviction for that offense is
minimal to begin with, and any stigma attaching to such a
conviction was effectively eliminated in this case when the
prosecutor elected to reduce the charge under ORS 161.566
(factor 4). Finally, according to the state, the pretrial proce-
dures to which defendant was subjected did not suggest a
criminal proceeding (factor 5). The state acknowledges that
defendant was arrested prior to her arraignment, but it
argues that the decriminalization that occurred thereafter
superseded what happened to defendant before the arraign-
ment. That is, according to the state, because defendant
could not be arrested, even for failure to appear, once the
charge against her was reduced to a violation, and because
failure to appear on a violation is not a crime (unlike failure
to appear on a misdemeanor or felony), the fact that defen-
dant was arrested, booked, and incarcerated before the
charge was reduced does not rebut the presumption that the
violation prosecution is a noncriminal proceeding.
raise the maximum fine for a conviction of a Class C misdemeanor receiving viola-
tion treatment. Or Laws 2012, ch 82, § 2.
Cite as 354 Or 302 (2013) 311
Amicus ACLU Foundation of Oregon, Inc. disputes
most of those contentions. For example, amicus observes
that the fine structure for a reduced misdemeanor offense
under ORS 161.655 (2009) remained the same as for other
misdemeanor offenses, thereby indicating that the legisla-
ture intended to impose criminal-type financial sanctions
for such offenses.9 With respect to the type of offense, amicus
argues that trespass is a criminal offense because (1) it has
a mens rea element; see City of Portland v. Tuttle, 295 Or
524, 530-31, 668 P2d 1197 (1983) (ostensible “violation” was
a crime, in part because it required proof of “[t]he culpa-
ble mental state of ‘knowledge’ ”); (2) criminal trespass is a
“brand” that “[is] colored by its past, and the idea that the
peace of the community [is] put in danger by the trespasser’s
conduct;” Martin v. Reynolds Metals Co., 221 Or 86, 99, 342
P2d 790 (1959), cert den, 362 U.S. 918, 80 S. Ct. 672, 4 L. Ed.
2d 739 (1960); and (3) the scheme is not fully decriminal-
ized, because trespass is a misdemeanor by default unless
the prosecutor makes an election to reduce the charge. With
respect to the punitive significance factor, amicus asserts
that there is a “profound” stigma of the individual that marks
a criminal trespass proceeding as criminal in nature in the
constitutional sense. The only factor over which the state
and amicus do not quarrel is whether criminal-type collat-
eral consequences arise from a reduced misdemeanor. They
agree that there are none.
With the contesting arguments so framed, we turn
to the governing legal principles. As an initial matter, we
think that the state misunderstands the Brown test when it
argues that the prescribed penalty for an offense is the most
important factor in determining whether a proceeding is a
“criminal prosecution” for purposes of Article I, section 11.
As discussed above, the court in Brown stated that “all [the
factors] are relevant, but none is conclusive.” 280 Or at 102.
More importantly, however, this court in Brown did not
state, or even suggest, that the absence of the possibility of
imprisonment creates a presumption that a proceeding is
9
The state notes that the legislature has since amended the statute to provide
that, in reduced misdemeanor cases, the fine structure for violations, not misde-
meanors, applies. ORS 161.566(2) (2011). However, the parties agree that that amend-
ment is not applicable in this case.
312 State v. Benoit
noncriminal. Rather, in characterizing the potential penalty
as the “single most import criterion,” the court in Brown
merely acknowledged that, where incarceration is an avail-
able penalty for an offense, the process leading to such a
possible outcome necessarily is a criminal prosecution. In
fact, this court had held as much on several occasions, in
related contexts, before deciding Brown. For example, in
City of Portland v. Erickson, 39 Or 1, 7-8, 62 P. 753 (1900),
the court held that, for former jeopardy purposes under
Article I, section 12, of the Oregon Constitution, when “the
court is empowered to inflict upon the accused not only a fine,
which may be followed by imprisonment for its nonpayment,
but also imprisonment aside from any pecuniary penalty or
forfeiture *  *,” the proceeding is criminal in nature as far
*
as constitutional requirements are concerned. See also State
v. Mayes, 245 Or 179, 184, 421 P2d 385 (1966) (so describing
holding in Erickson); City of Salem v. Read, 187 Or 437, 441,
211 P2d 481 (1949) (same).
But the converse is not true. As the court stated in
Brown, “the absence of potential imprisonment does not con-
clusively prove a punishment non-criminal.” 280 Or at 103.
In that circumstance, other factors may play a more prom-
inent role in determining whether a proceeding is a “crim-
inal prosecution.” Moreover, even though the court in Brown
stated that none of the factors that it identified is “con-
clusive,” as with the application of any multifactorial para-
digm, some factors will point more clearly than others to a
particular conclusion in the circumstances of a given case.
That is the situation here. Although we could analyze at
length the weight and import of the penalty and punitive
significance factors in this case, our sampling of the parties’
diametrically opposed yet generally plausible arguments
about those factors demonstrates that the exercise would
not be particularly helpful.
Instead, we conclude that, as applied to the particular
circumstances of this case, the most significant factors are
the type of offense with which defendant was charged and
the fact that defendant was subjected to pretrial arrest and
detention. With respect to the type of offense, even though
the legislature has authorized a prosecutor to reduce the
Cite as 354 Or 302 (2013) 313
crime of second-degree criminal trespass to a violation, the
legislature nonetheless has declared that offense to be a
crime. As this court observed in Brown, “[w]hen the legis-
lature has defined conduct as a criminal offense, it is a
criminal offense for constitutional purposes even if the
same consequences could have been attached to the same
conduct by civil or administrative proceedings.” Id. at 102.
The court in Brown also emphasized that the 1975 traffic
code “did not free this offense from the punitive traits that
characterize a criminal prosecution,” in part, based on “the
evident legislative desire to emphasize the seriousness of
this offense while facilitating its punishment.” Id. at 110. In
turn, because the legislature defined the conduct as a crimi-
nal offense, the state was permitted to subject the defendant
to uniquely criminal processes.
The court in Brown emphasized the significance of
the possibility of arrest and detention in assessing whether
a proceeding is a “criminal prosecution”:
“[I]t bears on the constitutional distinction between a civil
case and a ‘criminal prosecution’ that the Oregon Vehicle
Code retains many of the pre-trial practices used in the
enforcement of criminal laws. It is by now well understood
that this process encompasses the stages before charge,
plea, and trial as well as the trial itself. The statutes place
major traffic offenses with felonies and misdemeanors in
the law of arrest. ORS 133.310. A person thus arrested
faces the possible use of physical restraints, such as hand-
cuffs, a search of the person, booking (including the taking
of fingerprints or photographs), and detention in jail if not
released by police officers, or at a later time by a magistrate.
See ORS 484.435, ORS 484.100-484.140. Of course a traffic
offender must be subject to being stopped, compare ORS
131.605-131.615, and in the case of apparent intoxication
prevented from resuming his driving. Often that could be
accomplished by other means. But detention beyond the
needs of identifying, citing, and protecting the individual
or ‘grounding’ him, especially detention for trial unless bail
is made, comports with criminal rather than with civil pro-
cedure and is surely so perceived by the public.”
Brown, 280 Or at 108. In a footnote, the court qualified those
statements:
314 State v. Benoit
“Of course this single element does not turn all traffic
offenses into criminal prosecutions. We feel safe in assum-
ing that it is more important to the legislative scheme of
the Oregon Vehicle Code to decriminalize traffic infractions
than to retain the incompatible aspects of ‘full custody’
detention for those offenses that otherwise are effectively
decriminalized. But with respect to DUII, where such deten-
tion is most likely to be used, it is one more reason to doubt
that this aim has been accomplished.”
Id. at 108 n 16. Interestingly, in discussing that factor, the
court focused on the possibility of arrest and detention, that
is, their availability within the pertinent statutory scheme;
the court did not consider the import of that factor where
an arrest and pretrial incarceration actually had occurred.
This case presents an opportunity to consider that issue.
The use of pretrial arrest and detention procedures are
unique to criminal prosecutions. A person may be arrested
for a misdemeanor, ORS 133.310(1)(b), and held in jail for 36
hours or more before arraignment, ORS 135.010, and for up
to 180 days between arraignment and trial, ORS 136.290;
ORS 136.295(4)(a). In the case of a violation, by contrast, law
enforcement options are much more limited. Enforcement
officers are expressly forbidden from arresting a person for
the commission of a violation, and they may stop and detain
a person whom they have reasonable grounds to believe has
committed a violation for only as long as it takes to establish
the person’s identity, conduct a reasonable investigation, and
issue a citation. ORS 153.039.
Following its decision in Brown, this court has
emphasized the uniquely criminal nature of arrest and
pretrial detention in other contexts. For example, in Easton
v. Hurita, 290 Or 689, 625 P2d 1290 (1981), the court held
that the plaintiff motorist’s complaint, challenging the
lawfulness of his arrest and detention in a traffic infraction
stop, stated a cognizable claim for relief in a civil action for
false imprisonment. In so concluding, the court stated:
“our reasoning in [Brown] suggests that to put in jail a
person arrested for a traffic infraction is constitutionally
incompatible with decriminalizing traffic infractions and
removing constitutional safeguards normally afforded to
criminal defendants. As noted in Brown, however, for most
Cite as 354 Or 302 (2013) 315
minor traffic offenses it may be more important to decrimi-
nalize the traffic infraction than to retain the incompatible
aspects of ‘full custody’ detention.”
Easton, 290 Or at 697. Similarly, in State v. Porter, 312 Or 112,
817 P2d 1306 (1991), this court held that evidence discovered
in a police officer’s search of the defendant’s car during a
traffic stop for an open container violation should have been
suppressed because the stop was for a traffic infraction and,
under the applicable statute, the officer was not permitted
to engage in the same law enforcement procedures for traffic
infractions as for full custodial arrests.10 The court stated
that the legislative history showed that the legislature
intended by that statute to avoid conferring on individuals
stopped for traffic infractions all the procedural safeguards
guaranteed under the Oregon Constitution for criminal
prosecutions. Id. at 119-20. It followed, therefore, that,
having been stopped for a traffic infraction, the defendant
could not lawfully be subjected to a search beyond what was
permitted by the infraction statute.
In this case, as discussed above, defendant was part
of a group of people participating in the “Occupy Portland”
protests on October 11, 2011. She and 49 other defendants
were arrested. Defendant was handcuffed and taken into
custody, where she was booked and detained for several
hours. She was later charged by information with one
count of second-degree criminal trespass, a misdemeanor
criminal offense. Law enforcement officers were permitted
to take those actions only because the legislature chose to
10
The court described the purpose and effect of the statute, ORS 810.410
(1981), in the following terms:
“[T]he legislature sought to keep traffic infractions decriminalized and to
reduce the attendant law enforcement methods as much as necessary to
accomplish that goal. The legislature intended to satisfy the concerns expressed
in [Brown], and thus to permit only minimal intrusions on Oregon drivers
stopped for traffic infractions. The words of ORS 810.410(3)(b) reflect that
intent by requiring that any investigation be ‘reasonably related to the traffic
infraction, identification and issuance of citation.’ ORS 810.410(3) defines the
authority of the police to respond to a traffic infraction; by implication, the
statute proscribes any further action by the police, including a search, unless
it has some basis other than the traffic infraction. A search that explores for
evidence of other crimes or infractions is not ‘reasonably related to the traffic
infraction, identification and issuance of citation.’ ORS 810.410(3)(b).”
State v. Porter, 312 Or 112, 119-20, 817 P2d 1306 (1991).
316 State v. Benoit
criminalize the offense of second-degree criminal trespass.
The officers had the option on October 11, 2011, of merely
citing defendant and the other protesters for violations, rather
than arresting them for crimes. Had the officers chosen to
cite the protestors for violations, however, the officers could
not have arrested and detained them. Thus, the officers’
decision to arrest defendant and the other protestors rather
than cite them for violations was a practical choice with
legal consequences.
As noted, the state contends that its subsequent
election to treat the crime for which defendant was arrested
and detained as a violation effectively decriminalized the
proceeding. We do not agree. As this court stated in Pierson
v. Multnomah County, 301 Or 48, 52, 718 P2d 738 (1986),
“the trauma of an arrest and jail booking, and the stigma
that flows from an arrest are well known.” No subsequent
election by the state to purportedly decriminalize the
charge can change the fact that defendant was subjected to
those uniquely criminal procedures and their stigmatizing
effect. In Oregon, arrest records are available for employers,
landlords, licensing agencies, and others to review. See ORS
181.560 (providing for release of arrest records to those
who ask). When the Department of State Police releases
a person’s arrest record, that record includes not only the
date of the arrest but also the “offense for which arrest was
made.” ORS 181.560(1)(b)(B). And, the state government is
not the only depository of arrest records. Numerous counties
post their arrest records online, complete with mug shots
and identifying information, where anyone can view and
download them.11 Such adverse publicity is not erased merely
because, at the prosecutor’s discretion, an offense is later
reduced from a crime to a violation. As the Maine Supreme
Court stated in addressing a similar problem involving a
prosecutor’s election to proceed civilly after an arrest had
occurred:
“The stigma caused by criminal pre-charging procedures
will not disappear when the prosecutor elects to charge a
civil infraction. The fact of an individual’s arrest is public
11
See, e.g., http://e-airs.org/eAirsInternet (Lane County); www.co.marion.or.us/
SO/lnstitutions/inmateoffender/ (Marion County); www.mcso.us/PAID (Multnomah
County).
Cite as 354 Or 302 (2013) 317
information and in many communities will be reported in a
newspaper before a charging decision is docketed. Arrested
as a criminal suspect, the accused is not likely to escape
stigma merely because the conviction is [later] labeled civil.
*  * Indeed, the later adjudication will be for the identical
*
conduct that [the pertinent statute] defines as a crime.”
State v. Freeman, 487 A2d 1175, 1178 (Me 1985).
After the state’s election, this case proceeded as the
same action, for the same offense, with the same elements and
the same maximum potential fine. The state merely proposed
to change the remaining pretrial and trial procedures
and eliminate the possibility of imposition of a 30-day jail
sentence. There is no textual, historical, or logical support
for the proposition that, for purposes of Article I, section 11,
what began as a criminal proceeding with defendant’s arrest,
booking, and incarceration for a crime can, in the absence of
her consent, be transformed without further constitutional
consequence into a noncriminal proceeding. It may be that
many defendants will acquiesce in a bench trial for a misde-
meanor that is reduced to a violation under ORS 161.566.
However, where, as here, the accused already has been sub-
jected to pretrial arrest and detention, such a reduction does
not deprive the accused of the right to a jury trial.
The petition for writ of mandamus is dismissed.