State v. Yocom ( 2024 )

34 July 31, 2024 No. 518
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SAMANTHA KELLY YOCOM,
Defendant-Appellant.
Lane County Circuit Court
20CR66634; A177722
Kamala H. Shugar, Judge.
Argued and submitted August 21, 2023.
James Brewer, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Emily N. Snook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Ortega, Presiding Judge, Hellman, Judge, and
Armstrong, Senior Judge.
ORTEGA, P. J.
Affirmed.
Cite as 334 Or App 34 (2024) 35
36 State v. Yocom
ORTEGA, P. J.
Defendant appeals from a judgment convicting her
of misdemeanor driving while suspended, ORS 811.175 and
ORS 811.182(4), raising three assignments of error. First,
defendant challenges the trial court’s denial of her motion
to suppress evidence, arguing that former ORS 802.093
(2021), repealed by Or Laws 2022, ch 25, § 3, which created
a temporary moratorium on issuing citations for certain
traffic offenses under limited circumstances, rendered any
stop to investigate such an offense unlawful. Second, she
argues that the trial court erred in overruling her hearsay
objection and admitting a copy of a Department of Motor
Vehicles (DMV) report as a business record at trial. Third,
she argues that the trial court plainly erred in failing to
exercise discretion to suspend a mandatory fine.
We reject defendant’s first assignment of error
because we conclude that the moratorium on issuing cita-
tions for certain traffic offenses in former ORS 802.093 (2021)
did not affect law enforcement officers’ statutory or consti-
tutional authority to stop and investigate those offenses. We
reject defendant’s second assignment of error because we
conclude that the trial court did not err in overruling defen-
dant’s hearsay objection and admitting her DMV driver
record to prove that defendant’s license was suspended for
driving under the influence of intoxicants (DUII) at the time
she was stopped. We also reject defendant’s third assign-
ment of error because the record shows that defendant pre-
served her argument that the court should suspend execu-
tion of the mandatory fine and that the trial court exercised
its discretion not to suspend it. We therefore affirm.
MOTION TO SUPPRESS
“We review a trial court’s denial of a motion to sup-
press for legal error and are bound by the court’s explicit
and implicit factual findings if evidence in the record sup-
ports them.” State v. Stevens, 329 Or App 118, 120, 540 P3d
50 (2023), rev den, 372 Or 437 (2024). The relevant facts are
few and undisputed. While on patrol in November 2020, a
Lane County deputy sheriff stopped defendant for driving
a car with registration stickers that had expired in 2019.
Cite as 334 Or App 34 (2024) 37
See ORS 803.560(1)(b) (“A person commits the offense of
improper display of validating stickers if the person owns or
drives a vehicle on which the display of registration stickers
provides proof of valid registration and * * * [t]he stickers are
displayed on the vehicle after the registration period shown
on the stickers.”). The deputy was aware that the legisla-
ture had instituted a moratorium on citations for that traf-
fic violation, but he believed he had probable cause to stop
defendant. The deputy approached defendant and asked for
her license, registration, and proof of insurance. Defendant
said that she did not have a license, that she should not be
driving, and that she had just purchased the car. Defendant
produced the car’s title, which was still in another person’s
name, and a bill of sale signing the title over to her. The
deputy asked dispatch to run a records check on defendant
and learned that her license was suspended “at the misde-
meanor level.” The deputy cited defendant for driving while
suspended but did not cite her for the traffic violation.
Defendant moved to suppress all evidence obtained
from the traffic stop under Article I, section 9, of the Oregon
Constitution. She argued that the deputy lacked probable
cause to believe that she had committed a traffic violation
under former ORS 802.093 (2021),1 which provided, in rele-
vant part:
“(1) As used in this section, ‘document or credential’
includes but is not limited to documents or credentials
issued or accepted by the Department of Transportation
such as vehicle registration, registration stickers, driving
privileges, declaration of weight, disabled person parking
permits, trip permits, driver licenses and driver permits.
“(2) Notwithstanding any other provision of law, a
police officer may not issue a citation for a traffic offense
based upon a document or credential that expired or a doc-
ument that was not submitted to the department during
the period beginning on March 1, 2020, and ending on
December 31, 2020. This subsection applies to the following
offenses:
1
At the time of the suppression hearing, the parties referred to former ORS
802.093 (2021) by its enabling legislation, SB 1601 (2020), which became effective
upon passage on July 7, 2020. See Or Laws 2020, ch 15, §§ 20-23 (Spec Sess).
For ease of reference, we refer to the codified version of the bill throughout this
opinion.
38 State v. Yocom
“* * * * *
“(j) Improper display of validating stickers under ORS
803.560.
“* * * * *
“(3) If a police officer issues a citation in violation of
subsection (2) of this section, the court shall dismiss the
charge.”
In her motion, defendant argued that former ORS 802.093
(2021) “created a moratorium on the issuance of citations for
driving with expired tags,” which “effectively legalized” cer-
tain traffic offenses upon “the recognition that the COVID-
19 related closures of DMV offices made updating this type
of information difficult.” At the suppression hearing, defen-
dant further argued that the deputy lacked probable cause
to stop her for driving with expired tags “because th[at] vio-
lation did not exist for [defendant] at the time of that police
contact,” and it was therefore unlawful for the deputy “to
both stop [defendant] and investigate that offense.”
The trial court denied the motion. First, the court
observed that the text of the statute was ambiguous as to
whether the date range—March through December 2020—
referred to the time when a police officer could not issue a
citation for certain traffic offenses, or to the time when the
documents and credentials had expired or were not submit-
ted. But the court concluded that the legislature intended
the latter construction, in part because of the placement
of that restriction at the end of the sentence instead of at
the beginning. The court further concluded that, even if the
statute applied to the traffic stop of defendant in November
2020 for tags that had expired in 2019, the stop was none-
theless supported by probable cause:
“[R]egardless of whether it modifies one part of the sen-
tence or the other, the restriction is on issuing a citation.
The legislature is aware of the importance of its choice of
words and they did not prohibit a police officer from stop-
ping a vehicle, which they could have done.
“They did not prohibit a police officer from warning a
person, which they could have done. Instead, they restricted
a law enforcement officer from issuing a citation. So I—I
Cite as 334 Or App 34 (2024) 39
think it’s my finding that it was a lawful stop. There was
probable cause.”
Article I, section 9, establishes “the right of the peo-
ple to be secure in their persons, houses, papers, and effects,
against unreasonable search, or seizure.” A traffic stop is a
type of seizure. State v. Civil, 328 Or App 662, 668, 539 P3d
317 (2023), rev den, 372 Or 156 (2024). “To conduct a stop for
a traffic violation, Article I, section 9, requires that an offi-
cer have probable cause to believe that a violation occurred.”
State v. Sullivan, 322 Or App 563, 565, 520 P3d 911 (2022),
rev den, 370 Or 827 (2023). Probable cause exists where an
officer subjectively believes that it is more likely than not
that an offense occurred and where that belief is objectively
reasonable. Id.On appeal, we understand defendant to challenge
the objective component of probable cause. She argues that
former ORS 802.093 (2021) barred officers from issuing
citations for certain traffic offenses between March and
December 2020 based on documents or credentials that were
expired or were not submitted, regardless of when those doc-
uments or credentials had expired or were not submitted.
From that premise, defendant argues that her “expired tags
did not constitute a traffic offense” when the deputy stopped
her in November 2020, so the deputy lacked probable cause
to initiate the stop. Alternatively, defendant contends that
“even if probable cause can exist for a traffic ‘offense’ that is
entirely unenforceable, such probable cause could not consti-
tutionally justify a traffic stop” because the stop “serves no
purpose relating to the grounds that purportedly justify it”
and the seizure was therefore “unreasonable.”
The state responds that former ORS 802.093 (2021)
barred officers from issuing citations for certain traffic
offenses based on documents or credentials that had expired
or were not submitted between March and December 2020
and that the moratorium did not apply to defendant, whose
tags had expired in 2019. Alternatively, the state argues that
even if former ORS 802.093 (2021) did apply to defendant,
it did not effectuate a repeal of the traffic offense for which
defendant was seized, but only restricted an officer’s author-
ity to issue a citation. In the state’s view, even if the deputy
40 State v. Yocom
could not cite defendant for that offense, the deputy had
probable cause to initiate a traffic stop and to investigate the
violation, during which the deputy could give a warning and
information on the duration of the citation moratorium.
The parties’ arguments require that we employ
our well-established methodology to ascertain the legisla-
ture’s intent in enacting former ORS 802.093 (2021). State
v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). In doing
so, we need not resolve the patent ambiguity in the statute’s
text because, even if defendant is correct that former ORS
802.093 (2021) applies to a traffic stop initiated in November
2020 for tags that had expired in 2019, we agree with the
trial court and the state that the stop here was supported
by probable cause. As explained below, the statute’s express
restriction on police authority to issue citations for certain
traffic offenses did not affect the deputy’s statutory and con-
stitutional authority to stop and investigate those offenses
based on probable cause that a violation had occurred.
We begin with the text of the statute in context,
which is the best evidence of the legislature’s intent. Id.
at 171. As noted, former ORS 802.093(2) (2021) begins:
“Notwithstanding any other provision of law, a police officer
may not issue a citation for a traffic offense” based on expired
or unsubmitted documents or credentials. (Emphasis added.)
We agree with defendant that the phrase “notwithstanding
any other provision of law” means that the terms of former
ORS 802.093 (2021) “prevailed over any other provision of
law.” Engweiler v. Board of Parole, 343 Or 536, 544, 175 P3d
408 (2007) (“The function of a ‘notwithstanding’ clause is
straightforward. It operates as an exception to whatever
follows.”); Severy v. Board of Parole, 318 Or 172, 178, 864
P2d 368 (1993) (explaining that a “notwithstanding” clause
functions “to make the statute an exception to the provi-
sions of law referenced in the clause”). However, we disagree
that the terms of former ORS 802.093 (2021) operated to
temporarily repeal the enumerated traffic offenses based on
expired or unsubmitted documents or credentials.
In our view, the statute was directed to police offi-
cers, specifically to “not issue a citation for a traffic offense,”
notwithstanding any other provision of law that authorized
Cite as 334 Or App 34 (2024) 41
them to do so; it did not direct a temporary repeal of any
traffic offense. Indeed, subsection (2)’s references to “a traf-
fic offense” and “the following offenses” in the present tense
suggests that each enumerated traffic offense continued to
have legal effect throughout the moratorium on issuing cita-
tions. And because the statute conditioned the restriction on
issuing a citation to circumstances when documents or cre-
dentials had expired or were not submitted, the offenses nec-
essarily remained citable when those circumstances were
not present. Aside from the restriction on issuing a citation
when those circumstances did exist, subsection (2) did not
otherwise limit a police officer’s authority, either expressly
or by implication.
Subsection (3) confirms that the scope of the mora-
torium was on law enforcement officers’ authority to issue a
citation. That subsection provided a remedy “if a police offi-
cer issues a citation in violation of subsection (2)” by direct-
ing the court to “dismiss the charge.” Notably, subsection (3)
did not identify the violation as stopping or investigating a
person for a traffic offense, nor did it provide a suppression
remedy for stopping or investigating a person for such an
offense.
In sum, we see nothing in the statutory text that
suggests an intent to repeal any traffic offenses. The focus
of subsections (2) and (3) was on limiting an officer’s author-
ity, but only to issue citations for certain traffic offenses and
only in limited circumstances.
Our understanding of former ORS 802.093 (2021)
is consistent with the statute governing police authority to
investigate and enforce traffic violations. See State v. Haley,
371 Or 108, 112, 531 P3d 142 (2023) (“Context includes other
provisions of the same statute and other related statutes.”).
ORS 810.410 “authorizes certain police conduct when a
police officer makes a valid traffic stop.” State v. Amaya, 336
Or 616, 622, 89 P3d 1163 (2004). That statute provides, in
relevant part:
“(2) A police officer may issue a citation to a person for
a traffic violation at any place within or outside the juris-
dictional authority of the governmental unit by which the
police officer is authorized to act:
42 State v. Yocom
“(a) When the traffic violation is committed in the
police officer’s presence;
“* * * * *
“(3) A police officer:
“* * * * *
“(b) May stop and detain a person for a traffic violation
for the purposes of investigation reasonably related to the
traffic violation, identification and issuance of citation.”
We have held that ORS 810.410(3)(b) authorizes
a police officer to conduct a traffic stop for any of the enu-
merated purposes and does not require an officer to make
a traffic stop for all of those purposes. Efimoff v. DMV, 204
Or App 648, 654, 131 P3d 814 (2006) (“ORS 810.410(3)(b)
permits a police officer to make a traffic stop for certain
purposes; it does not require an officer to have all such pur-
poses.”). In Efimoff, the issue before us was whether ORS
810.410 authorized an officer to stop the petitioner when
the officer observed the petitioner commit a traffic violation
and stopped him with the intention of talking about, rather
than issuing a citation for, the violation. Id. at 650-51. The
petitioner argued that ORS 810.410(3)(b) authorizes police
to conduct a stop and an investigation for a traffic violation
only if the stop and investigation are reasonably related to
all three enumerated purposes: the traffic violation, identifi-
cation, and the issuance of a citation. 204 Or App at 651-52.
We rejected that argument as inconsistent with the text of
the statute, other provisions of ORS 810.410, and case law
and concluded that “ORS 810.410(3)(b) * * * authorizes an
officer to stop a person for certain purposes; it does not limit
stops to circumstances in which the officer has all such pur-
poses.” 204 Or App at 653.
Viewed against that statutory context, former ORS
802.093 (2021) operated to temporarily supersede an officer’s
authority under ORS 810.410(2) to issue citations for the
specified traffic offenses under certain circumstances. But it
did not affect an officer’s authority under ORS 810.410(3)(b)
to “stop and detain a person for a traffic violation for the
purposes of investigation reasonably related to the traffic
violation[ and] identification” of the person. Put another way,
Cite as 334 Or App 34 (2024) 43
ORS 810.410(2) authorizes police to issue a citation for a
traffic violation that is independent of the authority in ORS
810.410(3) to stop a person for certain purposes; former ORS
802.093 (2021) temporarily superseded an officer’s authority
to issue a citation for the enumerated traffic offenses with-
out disturbing their authority to stop and investigate those
offenses. Further, Efimoff made clear that the purposes for
which an officer may stop a person for a traffic violation under
ORS 810.410(3) are also independent of each other; as long as
the officer has one purpose, the stop is lawful at the outset. It
follows that ORS 810.410(3)(b) authorizes police to stop a per-
son for a traffic violation and investigate the violation even
when the officer is not authorized to issue a citation.
Defendant attempts to distinguish Efimoff by argu-
ing that “where the officer’s decision to issue a citation may
depend on what an investigation of the offense discloses, the
stop and investigation serve clear purposes,” whereas when
an officer cannot lawfully issue a citation, “it is difficult to
see how such a seizure could be anything other than a fish-
ing expedition for unrelated criminal activity that runs afoul
of Article I, section 9.” We are unpersuaded. In our view,
because former ORS 802.093 (2021) did not preclude officers
from issuing citations for the enumerated traffic offenses in
all circumstances, an officer’s authority to issue a citation
may have depended on what an investigation of the offense
disclosed. In those circumstances, defendant acknowledges,
and we agree, that a stop and investigation serve clear pur-
poses. For example, here, although the deputy initially had
reason to believe that defendant’s tags had expired in 2019,
the deputy learned that defendant had recently purchased
the vehicle but had not yet submitted the signed title and bill
of sale to the DMV to register it in her name. Thus, it is dif-
ficult for us to see how a stop to investigate a traffic offense
enumerated in former ORS 802.093 (2021) would necessarily
constitute a pretext to explore unrelated criminal activity.2
With that understanding of former ORS 802.093
(2021), we readily conclude that the trial court correctly
denied defendant’s motion to suppress. Even if former ORS
2
We note that defendant only challenges the lawfulness of initiating the stop
and does not additionally argue that the officer unlawfully extended the duration
or subject matter of the stop.
44 State v. Yocom
802.093 (2021) precluded the deputy from issuing defendant
a citation for violating ORS 803.560, the deputy’s belief that
defendant had committed a traffic violation was objectively
reasonable. See ORS 801.557 (“ ‘Traffic violation’ means a
traffic offense that is designated as a traffic violation in the
statute defining the offense, or any other offense defined in
the Oregon Vehicle Code that is punishable by a fine but
that is not punishable by a term of imprisonment.”); ORS
801.555(2) (“ ‘Traffic offense’ means * * * [a]ny provision of
law for which a criminal or traffic violation penalty is pro-
vided in the vehicle code.”); ORS 803.560(4) (“The offense
described in this section, improper display of validating
stickers, is a Class D traffic violation.”). The deputy there-
fore had probable cause to justify conducting a traffic stop to
investigate the violation and identify defendant under ORS
810.410(3) and Article I, section 9. State v. Arreola-Botello,
365 Or 695, 709, 451 P3d 939 (2019) (“Article I, section 9,
permits brief traffic stops to investigate unlawful, noncrim-
inal activity when the stops are of limited scope.”); State v.
Watson, 353 Or 768, 775, 305 P3d 94 (2013) (explaining that
the traffic stop of the defendant “was lawful at its inception”
because the officer “had probable cause to believe that [the]
defendant had committed a noncriminal traffic violation”
and “Article I, section 9, permitted [the officer] to stop and
detain [the] defendant briefly for purposes of investigation”
(footnote omitted)); State v. Rodgers/Kirkeby, 347 Or 610,
623, 227 P3d 695 (2010) (“Police authority to perform a traf-
fic stop arises out of the facts that created probable cause to
believe that there has been unlawful, noncriminal activity,
viz., a traffic infraction.”). The trial court did not err.
HEARSAY OBJECTION
We turn to defendant’s second assignment of error,
which challenges the trial court’s ruling on her hearsay
objection to Exhibit 2, a certified copy of defendant’s DMV
driver record. We review a trial court’s evidentiary ruling in
light of the record that was before the court at the time of
the ruling. State v. Eatinger, 298 Or App 630, 632, 448 P3d
636 (2019).
After the trial court denied the motion to suppress,
the parties proceeded to a bench trial. When the prosecutor
Cite as 334 Or App 34 (2024) 45
offered Exhibit 2, defendant objected on hearsay grounds.
The prosecutor responded that the document was “self-
authenticating” under OEC 902, the court rejoined that it
was also a business record, and defendant replied that the
state needed to lay a foundation for its admission. The pros-
ecutor clarified that he intended to call Schilt from the DMV
to “explain” the document but maintained that the state was
not required to lay a foundation for the document for it to be
admissible.
Schilt testified that she works at the Eugene DMV
as a transportation services representative and commercial
driver’s license examiner; that she works with the public
issuing driver’s licenses, titles, and registration renewals;
and that she runs the office in a lead position. Her duties
include accessing driver records and interpreting them.
According to Schilt, DMV keeps records of when a person’s
license is suspended and records of the time period and rea-
son for those suspensions in the normal course of business,
and those records are made “immediately at the time [DMV]
receive[s] the information.”
Schilt testified that Exhibit 2 “is a certified court
print” that “shows issuance history, any accidents, convictions,
any restraints, which would be * * * the DMV’s suspensions.”
Schilt further testified that Exhibit 2 was DMV’s driver record
for defendant and that it showed that defendant’s license was
suspended from August 2020 to August 2023 as a result of
a DUII conviction. Finally, Schilt testified that when DMV
“receives notice that someone’s been convicted of a DUII, * * *
they automatically suspend their license.”
The prosecutor again offered Exhibit 2, and defen-
dant again objected on hearsay grounds. In aid of the objec-
tion, defendant asked whether Schilt prepared the docu-
ment, whether she had personal knowledge of its contents,
and whether she verified any judgments or orders that
would corroborate the statements in the document. Schilt
answered no to all three questions. The trial court over-
ruled the objection and received Exhibit 2 into evidence.
Hearsay is an out-of-court statement offered
to prove the truth of the matter asserted. OEC 801(3).
46 State v. Yocom
Out-of-court statements are generally inadmissible unless
they are excluded from the definition of hearsay or qualify
for a hearsay exception. OEC 801(4) (setting forth out-of-
court statements that are not hearsay); OEC 802 (stating
that hearsay is not admissible except as provided in OEC
801 to 806); OEC 803 and OEC 804 (setting forth excep-
tions to the hearsay rule). The party seeking the admission
of hearsay bears the burden of proving that the statements
satisfy the requirements of a hearsay exception. Arrowood
Indemnity Co. v. Fasching, 369 Or 214, 222, 503 P3d 1233
(2022) (Arrowood). We review for legal error a trial court’s
ruling that the requirements for a hearsay exception have
been met. Id. at 247 (citing State v. Cunningham, 337 Or
528, 538-39, 99 P3d 271 (2004)).
Here, the trial court admitted Exhibit 2 under
the business records exception, OEC 803(6), which allows
admission of:
“A memorandum, report, record, or data compilation, in
any form, of acts, events, conditions, opinions, or diagnoses,
made at or near the time by, or from information transmit-
ted by, a person with knowledge, if kept in the course of
a regularly conducted business activity, and if it was the
regular practice of that business activity to make the mem-
orandum, report, record, or data compilation, all as shown
by the testimony of the custodian or other qualified witness,
unless the source of information or the method of circum-
stances of preparation indicate lack of trustworthiness.”
For purposes of OEC 803(6), “the ‘record’ is the statement
that the proponent is offering for the truth of the matter
asserted.” Arrowood, 369 Or at 235. The proponent must
prove that the record it is proffering has each of the char-
acteristics enumerated in the statute, and it must do so
through the testimony of the custodian or other qualified
witness. Id. at 224.
Defendant contends that the state failed to establish
that the “record” in Exhibit 2—the statement that defen-
dant’s driver’s license was suspended from August 2020 to
August 2023 for DUII—met the requirement that the record
was made “by or from information transmitted by, a person
with knowledge.” OEC 803(6). That is because, defendant
Cite as 334 Or App 34 (2024) 47
contends, Schilt did not testify as to “who at the DMV cre-
ated the record, who (if anyone) transmitted the information
on which the record was based, and whether either of those
individuals would have knowledge of the matter asserted
by the record.” Defendant argues that the Supreme Court’s
recent decision in Arrowood supports her position and,
because we agree that it is instructive, we briefly turn to
that case.
The plaintiff in Arrowood filed a civil breach of con-
tract claim against the defendant seeking to recover dam-
ages for an insurance claim it had paid to a third party after
the defendant had defaulted on a student loan contract. 369
Or at 217. The plaintiff moved for summary judgment and
filed a supporting affidavit averring that Citibank, who
originated the loan, had transferred the loan to Discover,
and that Discover had filed the insurance claim that the
plaintiff had paid. Id. The plaintiff submitted documents it
had received from Discover, which included a “loan trans-
mittal summary” detailing loans transferred from Citibank
to Discover, to prove that those loan activities had occurred.
Id. at 217, 235-36. To lay a foundation for the documents as
business records, the plaintiff relied on an employee’s affi-
davit averring, among other things, that all the documents
were “either produced and maintained directly by” the plain-
tiff or were from Discover’s proof of claim and “adopted” by
the plaintiff and “relied upon in the ordinary course” of the
plaintiff’s business.” Id. at 218.
The court construed OEC 803(6) to require, among
other things, “that records have certain characteristics
regarding when, by whom, why, and how they are made and
kept” and “that a custodian or other qualified person testify
about those characteristics,” which “necessarily must include
information about the practices of the business that initially
made and kept the record.” Id. at 240-41. Applying that con-
struction of OEC 803(6) in that case, the court concluded
that the plaintiff had failed to establish that the records
had the characteristics required by OEC 803(6) because the
employee did not aver that she had knowledge of the record-
making or record-keeping practices of either Citibank or
Discover, and the loan summaries did not indicate when, by
48 State v. Yocom
whom, or how the information they contained was initially
reported and recorded. Id. at 218-19, 251.3
Here, the “record” at issue is the statement in defen-
dant’s DMV driver record that defendant’s driver’s license
was suspended from August 2020 to August 2023 for DUII.
We conclude that Schilt’s testimony established that that
record was “made by * * * a person with knowledge” because
she testified that it was the regular practice of DMV to record
the suspension once they receive notice of a DUII convic-
tion, as well as the length of and the reason for the suspen-
sion. Although defendant correctly points out that Schilt did
not testify who at DMV records the suspensions, Arrowood
makes clear that isn’t necessary. See 369 Or at 241 (“[T]he
proponent of the evidence is not required to produce, or even
identify, the specific individual upon whose firsthand knowl-
edge of the record is based. A sufficient foundation is laid
if the proponent shows that it was the regular practice of
the activity to base such a record upon a transmission from
a person with knowledge.” (Internal quotation marks and
citation omitted.)).
Further, although defendant contends that Schilt
did not testify as to who (if anyone) transmitted the informa-
tion to DMV (i.e., the DUII judgment of conviction or order of
suspension) on which the record was based, the state was not
required to prove the validity of the underlying suspension,
but only the fact of the suspension itself. State v. Rust, 240
Or App 749, 753, 248 P3d 445 (2011) (“Under ORS 811.182,
the state is required to prove * * * the existence, but not the
validity, of the suspension of the defendant’s driving privi-
leges.” (Citing State v. Jones, 223 Or App 70, 80-81, 195 P3d
78, adh’d to as modified on recons, 224 Or App 451, 199 P3d
317 (2008).)) (footnote omitted); see also id. at 754 (“The state
was required to prove only that (1) DMV had suspended
defendant’s license based on its receipt of a record of a pre-
vious conviction for assault while operating a motor vehicle;
and (2) defendant drove a motor vehicle when the suspen-
sion was in effect.”) (Footnote omitted.)). As Schilt testified,
3
We applied Arrowood in National Collegiate Student Loan Trust v. Gimple,
318 Or App 672, 682, 508 P3d 561 (2022), holding that the affidavit by a loan
subservicer’s custodian of records failed to establish personal knowledge of the
record-making practices of the loan originator for purposes of OEC 803(6).
Cite as 334 Or App 34 (2024) 49
DMV is the entity that suspends the license upon receipt
of a record of conviction for DUII; she explained that the
“restraints” in the driver record are “the DMV’s suspensions”
and confirmed that when DMV receives notice of a convic-
tion, DMV “automatically suspends” the person’s license. See
also ORS 813.400 (“[U]pon receipt of a record of conviction
for misdemeanor driving while under the influence of intox-
icants, the Department of Transportation shall suspend the
driving privileges of the person convicted.”). That is what
distinguishes this case from Arrowood. In Arrowood, the
plaintiff submitted the third-party documents to prove that
the loan activities by the third party had occurred. By con-
trast, here, the state offered defendant’s DMV driver record
to prove that DMV had suspended her license and the rea-
son DMV had done so, not to prove that defendant had been
convicted of DUII or that a court had ordered DMV to sus-
pend her license. We therefore conclude that the state met
its burden to establish that the record was “made by, or from
information transmitted by, a person with knowledge” for
purposes of OEC 803(6). The trial court did not err in over-
ruling defendant’s objection and admitting Exhibit 2.
IMPOSITION OF MANDATORY FINE
Finally, we address defendant’s third assignment of
error in which she contends that the trial court plainly erred
when it failed to exercise discretion in imposing and exe-
cuting a mandatory fine under ORS 811.182(5).4 Contrary
to defendant’s framing of this assignment of error, defen-
dant actually preserved her contention that the trial court
had discretion to impose, but then suspend execution of, the
$1,000 fine. After the state recommended that the court
impose the mandatory $1,000 fine, defendant asked “that
the statutory fine be in part suspended based on her finan-
cial circumstances.” When it announced the terms of defen-
dant’s sentence after inquiring into defendant’s employment
4
ORS 811.182(5) provides:
“In addition to any other sentence that may be imposed, if a person is
convicted of the offense described in this section and the underlying sus-
pension resulted from driving while under the influence of intoxicants, the
court shall impose a minimum fine of at least $1,000 if it is the person’s first
conviction for criminal driving while suspended or revoked and a minimum
fine of at least $2,000 if it is the person’s second or subsequent conviction.”
50 State v. Yocom
and financial circumstances, the trial court imposed the
$1,000 fine, which defendant had expressly agreed was
mandatory, and exercised its discretion to allow defendant
to make monthly payments. Accordingly, we reject defen-
dant’s third assignment of error.
Affirmed.