State v. Pohle , 317 Or. App. 76 ( 2022 )

76
Submitted August 20, 2021, reversed and remanded January 20, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEREMY DAVID POHLE,
Defendant-Appellant.
Deschutes County Circuit Court
05FE2005AB; A174028
505 P3d 475
Defendant appeals an order denying his motion to set aside convictions for one
count of third-degree assault and three counts of recklessly endangering another
person. The trial court concluded that each of those convictions was not eligible
to be set aside because each was a conviction for a “traffic offense,” as that term
is used in ORS 137.225(7)(a). The trial court so concluded because each of those
convictions resulted from the operation of a motor vehicle. On appeal, defendant
assigns error to the trial court’s denial of his motion to set aside his convictions.
Held: The Court of Appeals concluded that neither third-degree assault nor reck-
lessly endangering another person is a “traffic offense” as that term is used in
ORS 137.225(7)(a), even when those offenses result from the operation of a motor
vehicle. The trial court erred when it concluded otherwise.
Reversed and remanded.
Alicia N. Sykora, Judge.
Shawn A. Kollie and Kollie Law Group, P.C. filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and James, Judge, and
Aoyagi, Judge.
TOOKEY, P. J.
Reversed and remanded.
Cite as 317 Or App 76 (2022) 77
TOOKEY, P. J.
Defendant appeals an order denying his motion to
set aside a conviction for one count of third-degree assault,
ORS 163.165, and three counts of recklessly endangering
another person, ORS 163.195. The trial court concluded that
each of those convictions was not eligible to be set aside under
ORS 137.225(1), because they were each a “traffic offense” as
that term is used in ORS 137.225(7)(a).1 The trial court so
concluded because defendant’s convictions for those offenses
“result[ed] from the operation of a motor vehicle,” and, there-
fore, upon conviction for those offenses, defendant’s driving
privileges were suspended pursuant to ORS 809.411(2) and
(9)(a). In reaching that conclusion, the trial court relied upon
the definition of “traffic offense” found in ORS 801.555(2), a
section of the Vehicle Code, and determined that defendant’s
convictions fell within that definition, because, in its view, a
suspension of driving privileges was either a “criminal pen-
alty” or “traffic violation penalty,” as those terms are used in
ORS 801.555(2).2
On appeal, defendant assigns error to the trial
court’s ruling on his motion to set aside his convictions.
For the reasons that follow, we conclude that the trial court
erred, and we reverse and remand.
I. BACKGROUND
The relevant facts are undisputed. In 2006, defen-
dant pleaded guilty to, among other offenses, one count of
third-degree assault, a felony, and three counts of reck-
lessly endangering another person, each a misdemeanor.
Each offense “result[ed] from the operation of a motor
vehicle” within the meaning of ORS 809.411(2) and (9)(a).
Consequently, the sentencing court was required to, and
did, suspend defendant’s driving privileges—or, colloqui-
ally, his driver’s license—for a period of five years on the
conviction for third-degree assault and for 90 days on each
1
ORS 137.225 has been amended since the trial court’s decision in this case.
Because that amendment does not affect our analysis, we refer to the current
version of the statute in this opinion.
2
ORS 801.010(1) provides that the Oregon Vehicle Code consists of ORS
chapters 801 to 826. In this opinion, we refer to the Oregon Vehicle Code as the
“Vehicle Code.”
78 State v. Pohle
conviction for recklessly endangering another person. See
ORS 809.411(2) (requiring Department of Transportation
to suspend driving privileges “upon receipt of a record of
conviction of any degree of recklessly endangering another
person * * * resulting from the operation of a motor vehi-
cle”); ORS 809.428 (setting forth period for suspension of
driving privileges for conviction for recklessly endangering
another person); ORS 809.411(9) (requiring Department of
Transportation to suspend driving privileges “upon receipt
of a record of conviction of assault in the * * * third * * *
degree resulting from the operation of a motor vehicle” and
setting forth suspension period); ORS 809.240(1) (requir-
ing that, when “a person is convicted of an offense that will
result in mandatory suspension or revocation under” ORS
809.411, the trial judge shall order “the revocation or sus-
pension at the time of conviction for the required period”).
Over 13 years later, defendant moved to have his con-
victions for third-degree assault and recklessly endangering
another person set aside pursuant to ORS 137.225(1). The
state opposed the motion, arguing that those offenses were
not eligible to be set aside under ORS 137.225(1), because
they were for “traffic offenses,” and “traffic offenses” are
not eligible for set aside pursuant to ORS 137.225(7)(a). See
ORS 137.225(7)(a) (providing ORS 137.225(1) does not apply
to “[a] conviction for a state or municipal traffic offense”).
The trial court agreed with the state. It reasoned
that ORS 137.225(7)(a) provides that a set aside under ORS
137.225(1) is unavailable for a “conviction for a state or
municipal traffic offense,” that a “traffic offense” is defined
in the Vehicle Code at ORS 801.555 as any “provision of law
for which a criminal or traffic violation penalty is provided
in the vehicle code,” and that
“defendant’s legislatively mandated license suspensions,
based on his convictions for reckless endangerment and
third-degree assault, committed with a motor vehicle,
are criminal or traffic violation penalties and therefore
are ‘traffic offenses.’ They cannot be set aside under ORS
137.225(7)(a) and ORS 801.555.”
The trial court then entered an order denying defendant’s
motion to set aside his convictions for third-degree assault
Cite as 317 Or App 76 (2022) 79
and recklessly endangering another person. Defendant appeals
that order.
II. ANALYSIS
A. The Statutory Scheme
To provide context for our explanation of the par-
ties’ arguments and analysis, we begin by broadly outlining
the contours of the statutory scheme governing motions to
set aside convictions, as well as relevant provisions of the
Vehicle Code, including those requiring suspension of driv-
ing privileges upon conviction for certain offenses.
“Under ORS 137.225(1)(a), a defendant who is con-
victed of a crime and fully serves the sentence imposed can
apply to the trial court for an order setting aside the records
of that conviction if the defendant meets several require-
ments.” State v. McVein, 305 Or App 525, 527, 471 P3d 796
(2020). “The legislature intended ORS 137.225 to combat
the stigma associated with the public nature of a record of
arrest or conviction by providing individuals with such a
record the opportunity to purge it and start fresh.” Id. at
529.
ORS 137.225(1) does not, however, apply to a “convic-
tion for a state or municipal traffic offense.” ORS 137.225(7).
“Traffic offenses” have been ineligible for set aside under
ORS 137.225 since that statute was enacted in 1971, due to
a concern that the high number of “moving violations” would
create a “tremendous load” on the courts if they were eligible
for set aside, and because most exempted “traffic offenses”
under the set aside statute are violations that do not carry
the same stigma as a criminal conviction. Testimony, Senate
Committee on Criminal Law and Procedure, SB 362, Mar 19,
1971 (statement of Judge Richard Unis); see also id. (recog-
nizing, however, that the “misdemeanors” of reckless driv-
ing and driving while under the influence of intoxicants—
which are not eligible for set aside, because they are “traffic
offenses”—carry stigma).3
3
The offense of reckless driving is set forth in the Vehicle Code at ORS
811.140. The offense of driving while under the influence of intoxicants is set
forth in the Vehicle Code at ORS 813.010.
80 State v. Pohle
ORS 137.225 does not define “traffic offense.” “Traffic
offense” is, however, defined in the Vehicle Code. Specifically,
ORS 801.555 defines “traffic offense” as:
“(1) Any violation of a traffic ordinance of a city, munic-
ipal or quasi-municipal corporation, except ordinances gov-
erning parking of vehicles.
“(2) Any provision of law for which a criminal or traffic
violation penalty is provided in the vehicle code.”
Additionally, as noted above, the Vehicle Code requires
the suspension of driving privileges when a defendant is con-
victed of certain offenses. As pertinent here, ORS 809.411(2)
and (9)(a) require the Department of Transportation to sus-
pend a defendant’s driving privileges “upon receipt of a record
of conviction” for recklessly endangering another person or
third-degree assault when those offenses “result[ ] from the
operation of a motor vehicle.” Further, ORS 809.240(1) pro-
vides that, when “a person is convicted of an offense that
will result in mandatory suspension or revocation under”
ORS 809.411, the trial court must order “the revocation or
suspension at the time of conviction for the required period.”
B. The Parties’ Arguments and the Question on Appeal
On appeal, defendant contends that the trial court
erred because suspension of driving privileges under ORS
809.411 does not turn an offense that is otherwise eligible
for set aside under ORS 137.225(1) into a “state or munici-
pal traffic offense” that is ineligible for set aside under ORS
137.225(7)(a). That is because, in defendant’s view, a “license
suspension is not a ‘penalty,’ ” and, therefore, ORS 801.555(2),
which, as noted, defines “traffic offense” to include “[a]ny pro-
vision of law for which a criminal or traffic violation penalty
is provided in the vehicle code,” is inapplicable. Defendant
also argues that the definition of traffic offense provided in
ORS 801.555(1) is inapplicable because convictions for third-
degree assault and recklessly endangering another person
are not violations of a “traffic ordinance of a city, municipal
or quasi-municipal corporation.”
The state agrees that defendant’s convictions are
not for “traffic offenses” under the definition provided in
ORS 801.555(1). But, the state argues, third-degree assault
Cite as 317 Or App 76 (2022) 81
and recklessly endangering another person, when commit-
ted while operating a motor vehicle, is each a “traffic offense”
exempt from set aside by operation of ORS 137.225(7)(a)
given the definition of “traffic offense” in ORS 801.555(2). In
the state’s view, that is so because, upon conviction for those
offenses, “the court must impose, as an additional penalty,
a suspension of the defendant’s driving privileges.” That is,
the state’s contention is that suspension of driving privi-
leges is a “penalty,” and, therefore, any offense that requires
suspension of driving privileges under ORS 809.411 is
“traffic offense” under ORS 801.555(2), making convictions
for such offenses exempt from set aside pursuant to ORS
137.225(7)(a).
The question squarely before this court is whether
convictions for third-degree assault and recklessly endan-
gering another person, when those convictions “result[ ] from
the operation of a motor vehicle,” thus leading to suspension
of driving privileges pursuant to ORS 809.411, are “traf-
fic offenses,” and, therefore, ineligible for set aside under
ORS 137.225(1) by operation of ORS 137.225(7)(a). As we
will explain, answering that question requires us to apply
the definition of “traffic offense” found in the Vehicle Code
at ORS 801.555, and, specifically, answer the question of
whether suspension of driving privileges under ORS 809.411
for third-degree assault and recklessly endangering another
person is either a “criminal penalty” or a “traffic violation
penalty” as those terms are used in ORS 801.555(2).
C. Answering the Question on Appeal
“The proper meaning and application of ORS
137.225 is a matter of statutory interpretation, and we
review for legal error a trial court’s determination of
whether a movant is entitled to have his or her conviction
set aside under ORS 137.225.” State v. Sylva, 314 Or App
661, 662, 500 P3d 49 (2021) (internal quotation marks omit-
ted). “To determine a statute’s meaning, we apply Oregon’s
well-established framework for statutory interpretation and
examine its text and context, as well as any relevant leg-
islative history with which we have been supplied or that
we have obtained on our own.” State v. Curiel, 316 Or App
215, 222, 504 P3d 629 (2021). Additionally, in “construing a
82 State v. Pohle
statute, this court is responsible for identifying the correct
interpretation, whether or not asserted by the parties.” See
Stull v. Hoke, 326 Or 72, 77, 948 P2d 722 (1997).
As noted, “traffic offense” is not defined in ORS
137.225. When construing the term “traffic offense” in
ORS 137.225, however, we previously applied the definition
of “state traffic offense” in former ORS 484.010(9) (1975),
renumbered as ORS 153.500 (1985), repealed by Or Laws
1999, ch 1051, § 32, a statute within a chapter of the Oregon
Revised Statutes which, at the time, concerned “traffic
offense procedures” and “traffic safety,” and defined “state
traffic offense” in a similar way to the definition of “traf-
fic offense” presently codified in the Vehicle Code at ORS
801.555(2). State v. Greer, 26 Or App 605, 608, 553 P2d 1087(1976) (construing the phrase “traffic offense” in ORS 137.225
by applying the definition set forth in former ORS 484.010(9)
(1975), which provided that a traffic offense is “a violation of
any provision of law for which a criminal or traffic infraction
penalty is provided in * * * ORS chapter(s) * * * 483 * * *”). We
also observe that ORS 153.005(2), which sets forth various
definitions related to violations and fines, defines “traffic
offense” as having “the meaning given to that term in ORS
801.555.” In light of Greer and ORS 153.005, in construing
“traffic offense” in ORS 137.225, we apply the definition of
“traffic offense” presently found in the Vehicle Code at ORS
801.555, as did the trial court in this case.4
As noted above, ORS 801.555 defines “traffic offense”
as:
“(1) Any violation of a traffic ordinance of a city, munic-
ipal or quasi-municipal corporation, except ordinances gov-
erning parking of vehicles.
4
The similarity between the definition provided for in ORS 801.555(2) and
former ORS 484.010(9) (1975) is not surprising. ORS 801.555 was enacted and
added to the Vehicle Code in 1983 as part of a “comprehensive revision of the
vehicle code.” State v. Kellar, 349 Or 626, 630, 247 P3d 1232 (2011). As part of
that comprehensive revision, legislature explained that, “ ‘in revising the code,
it is not the purpose or intent of the Oregon Legislative Assembly to change the
law.’ ” Id. at 630 (quoting Or Laws 1983, ch 338, § 3; brackets omitted). “Rather,
the legislature’s stated purpose was to ‘simplify the language, establish a single
set of definitions for the code, eliminate confusing references,’ and the like.” Id.
(quoting Or Laws 1983, ch 338, § 3; brackets omitted).
Cite as 317 Or App 76 (2022) 83
“(2) Any provision of law for which a criminal or traffic
violation penalty is provided in the vehicle code.”
As an initial matter, neither third-degree assault
under ORS 163.165 nor recklessly endangering another per-
son under ORS 163.195 constitutes a “violation of a traffic
ordinance of a city, municipal or quasi-municipal corpo-
ration.” ORS 801.555(1). Thus, to the extent third-degree
assault or recklessly endangering another person are “traf-
fic offenses,” they must be “traffic offenses” as defined under
ORS 801.555(2)—i.e., “Any provision of law for which a crim-
inal or traffic violation penalty is provided in the vehicle
code.”
As described above, the Vehicle Code—specifically
ORS 809.411(2) and (9)(a)—provides for the suspension
of driving privileges upon conviction for the offenses that
defendant committed and sought to have set aside, viz.,
third-degree assault and recklessly endangering another
person, when those offenses result from the operation of a
motor vehicle. Consequently, we turn to whether suspension
of driving privileges under ORS 809.411 for third-degree
assault and recklessly endangering another person is either
a “criminal penalty” or a “traffic violation penalty” as those
terms are used in ORS 801.555(2).
1. Suspension of driving privileges under ORS 809.411
is a “penalty” within the meaning of ORS 801.555(2).
Because the parties’ arguments in this case focus
on the meaning of the word “penalty” in ORS 801.555(2), we
first consider whether the suspension of driving privileges
under ORS 809.411 is a “penalty” within the meaning of
ORS 801.555(2).
“Penalty” is not defined in the Vehicle Code. There-
fore, “we look to the dictionary for further guidance.”
Pride Disposal Co. v. Valet Waste, LLC, 298 Or App 751,
759, 448 P3d 680, rev den, 366 Or 64 (2019). Black’s Law
Dictionary defines “penalty,” in part, as “[a]n elastic term
with many different shades of meaning; it involves an idea
of punishment, corporeal or pecuniary, or civil or crimi-
nal, although its meaning is generally confined to pecuni-
ary punishment.” Id. at 1020 (5th ed 1979). Webster’s Third
84 State v. Pohle
New Int’l Dictionary defines penalty in myriad ways, among
them, “the suffering in person, rights, or property which is
annexed by law or judicial decision to the commission of a
crime or public offense” and “disadvantage, loss, or hardship
due to some action (as transgression or error).” Id. at 1668-
69 (unabridged ed 2002). Given those definitions alone, we
might perhaps conclude that a license suspension pursuant
to ORS 809.411 is a “penalty.”5
When consideration is given to context a decisive
clue is present which leads us to conclude that, indeed, the
legislature conceived of suspension of driving privileges
under ORS 809.411 as a “penalty.” Specifically, the section
of the Vehicle Code creating the offense of “reckless endan-
germent of highway workers” expressly refers to suspension
of driving privileges under ORS 809.411 as a “penalty.” See
ORS 811.231 (“In addition to any other penalty, a person con-
victed of reckless endangerment of highway workers is sub-
ject to suspension of driving privileges as provided in ORS
809.411(6).” (Emphasis added.)). Similarly, other provisions
of the Vehicle Code refer to suspension of driving privileges
as a “penalty.” See, e.g., ORS 806.200(3) (“In addition to any
other penalties under this section, violation of this section
subjects the violator to suspension of driving privileges as
provided under ORS 809.415.”); ORS 806.230(2) (same).
Thus, we agree with the state—and the trial court—that a
license suspension under ORS 809.411 is a “penalty,” as that
term is used in ORS 801.555(2).6
5
As noted, ORS 801.555 was enacted in 1983; it included the word “penalty”
at that time. Or Laws 1983, ch 338, § 101. Consequently, in interpreting that
term, we consider the definitions provided in Black’s Law Dictionary (5th ed 1979)
and Webster’s Third New Int’l Dictionary (unabridged ed 2002). See Comcast Corp.
v. Dept. of Rev., 356 Or 282, 296 n 7, 337 P3d 768 (2014) (“In consulting dictionar-
ies, however, it is important to uses sources contemporaneous with the enactment
of the statute.”); State v. James, 266 Or App 660, 667 n 3, 338 P3d 782 (2014) (not-
ing “Webster’s Third New Int’l Dictionary (unabridged ed 2002) can be considered
to be a ‘contemporaneous’ source for statutes dating back to 1961 (if not earlier)”
because “the content of Webster’s—excluding the addenda section—has remained
static since 1961”).
6
In arguing that suspension of driving privileges is not a “penalty” under
ORS 801.555(2), defendant points to various cases where this court and the
Supreme Court have held that suspension or revocation of driving privileges
is not a “punishment” for purposes of various provisions of the state and fed-
eral constitutions. See generally State v. Phillips, 138 Or App 468, 909 P2d 882,
rev den, 323 Or 114 (1996) (federal double jeopardy); Mannelin v. DMV, 176 Or App
9, 31 P3d 438 (2001), aff’d sub nom McNutt v. DMV, 336 Or 147, 82 P3d 162 (2003)
Cite as 317 Or App 76 (2022) 85
But that a license suspension under ORS 809.411 is
a “penalty” does not end our analysis; under ORS 801.555(2),
for the convictions at issue in this case to be “traffic offenses,”
the “penalty” provided in the Vehicle Code, namely, the sus-
pension of driving privileges for those convictions, must be
a “criminal penalty” or a “traffic violation penalty.” See ORS
801.555(2) (defining traffic offense as “[a]ny provision of law
for which a criminal or traffic violation penalty is provided in
the vehicle code” (emphases added)).
For the reasons that follow, we conclude that sus-
pension of driving privileges under ORS 809.411 for third-
degree assault and recklessly endangering another person
is neither a “criminal” nor “traffic violation” penalty, as
those terms are used in ORS 801.555(2).
2. Suspension of driving privileges pursuant to ORS
809.411 for third-degree assault and recklessly
endangering another person is not a “criminal pen-
alty” within the meaning of ORS 801.555(2).
We first consider whether suspension of driving
privileges under ORS 809.411 for third-degree assault
and recklessly endangering another person is a “criminal
penalty” within the meaning of ORS 801.555(2). Neither
“criminal” nor “criminal penalty” is defined in the Vehicle
Code, but third-degree assault and recklessly endangering
another person are, undoubtedly, criminal offenses.
It does not follow from that, however, that suspen-
sion of driving privileges for committing those crimes is a
“criminal penalty.” To the contrary, “[w]e have held that
suspension of driving privileges is civil and administrative,
rather than criminal, in nature.” State v. Phillips, 138 Or
App 468, 471, 909 P2d 882, rev den, 323 Or 114 (1996); see
(state and federal ex post facto); State v. Vazquez-Escobar, 211 Or App 115, 153
P3d 168 (2007) (state and federal ex post facto). Defendant contends that there is
“overlap” between the word “penalty” and the word “punishment.”
We reject defendant’s argument. In our view, that a suspension or revocation
of driving privileges is not a “punishment” for the purpose of various provisions
of the state and federal constitutions does not indicate that the legislature did
not consider a license suspension to be a “penalty” as that term is used in ORS
801.555. That is so principally due to the numerous statutes in the Vehicle Code,
cited above, which refer to suspension of driving privileges as a “penalty.”
86 State v. Pohle
also Mannelin v. DMV, 176 Or App 9, 19, 31 P3d 438 (2001),
aff’d sub nom McNutt v. DMV, 336 Or 147 , 82 P3d 162 (2003)
(noting that courts “traditionally have regarded the suspen-
sion and revocation of a driver’s license as nonpunitive” and
that such suspension or revocation has not historically been
regarded as “punishment”).
Consistent with that understanding of the nature
of the “penalty” of suspension of driving privileges, we high-
light that the legislature has referred in another statute to
suspension of a license as a “civil penalty”—as opposed to a
“criminal penalty”—even when that suspension is ordered
by a court in a judgment of conviction. ORS 137.010(8)
(“This section does not deprive the court of any authority
conferred by law to enter a judgment for the forfeiture of
property, suspend or cancel a license, remove a person from
office or impose any other civil penalty. An order exercising
that authority may be included as part of the judgment of
conviction.”). That indicates to us that the legislature views
license suspensions as being a civil penalty—as opposed to a
criminal penalty—even when included in a judgment of con-
viction. Cf. State v. Curran, 291 Or 119, 126, 628 P2d 1198(1981) (inclusion of “forfeiture” in ORS 137.010(8) “indicates
that the legislature viewed the remedy of forfeiture as being
a civil penalty”).
Furthermore, in 1983, when ORS 801.555 was enacted
and made a part of the Vehicle Code, a license suspension
was described as a civil penalty, rather than a criminal
penalty, in statutes related to traffic infractions. See former
ORS 153.505 (1983), repealed by Or Laws 1999, ch 1051, § 32
(defining “traffic infraction” as including an “offense” that
“is punishable only by a fine, forfeiture, suspension or revo-
cation of a license or privilege or other civil penalty”); Or
Laws 1983, ch 338, § 101.
Consequently, we conclude that suspension of driv-
ing privileges pursuant to ORS 809.411 for third-degree
assault and recklessly endangering another person—
although third-degree assault and recklessly endangering
another person are undoubtedly crimes—is not a “criminal
penalty” within the meaning of ORS 801.555(2).
Cite as 317 Or App 76 (2022) 87
3. Suspension of driving privileges pursuant to ORS
809.411 for third-degree assault and recklessly
endangering another person is not a “traffic viola-
tion penalty” within the meaning of ORS 801.555(2).
We now turn to whether suspension of driving priv-
ileges under ORS 809.411 is a “traffic violation penalty”
within the meaning of ORS 801.555(2).
The Vehicle Code defines “traffic violation” as “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
801.557. Neither third-degree assault nor recklessly endan-
gering another person is designated as a traffic violation
in the statute defining the offense, nor are those offenses
defined in the Vehicle Code. ORS 163.165 (defining third-
degree assault and designating it as a felony); ORS 163.195
(defining recklessly endangering another person and desig-
nating it as a misdemeanor).
Consequently, neither third-degree assault nor reck-
lessly endangering another person is a “traffic violation”
under ORS 801.555(2). To us that indicates that suspen-
sion of driving privileges pursuant to ORS 809.411(2) and
9(a)—i.e., penalties imposed for committing the criminal
offenses of third-degree assault and recklessly endanger-
ing another person—are, therefore, not “traffic violation
penalties” within the meaning of ORS 801.555(2); they are
not penalties imposed for committing a “traffic violation.”
Nor are we aware of any other sense in which suspension
of driving privileges pursuant to ORS 809.411(2) and (9)(a)
for third-degree assault or recklessly endangering another
person could be considered to be a “traffic violation penalty.”
Consequently, we conclude such a suspension is not a “traffic
violation penalty” within the meaning of ORS 801.555(2).
4. The legislative history of the set aside statute, ORS
137.225, is consistent with our conclusion.
As a final point, we note that we have reviewed the
legislative history relevant to both the set aside statute,
ORS 137.225, and the statute defining “traffic offense,” ORS
88 State v. Pohle
801.555. Although we have found nothing in the legislative
history of ORS 801.555 that aids in our analysis in this case,
as noted above, the legislature intended ORS 137.225 to
combat the stigma associated with an arrest or conviction,
but exempted “traffic offenses” from set aside based on the
notion that traffic violations do not carry the same stigma as
criminal convictions and the concern that, due to the high
number of “moving violations,” allowing set aside of traffic
offenses would burden the courts. We do not understand a
conviction for third-degree assault or recklessly endanger-
ing another person to lack the sort of stigma that motivated
the legislature to enact ORS 137.225. Likewise, we do not
believe that such offenses are of the type that motivated the
legislature’s concern about imposing a “tremendous load” of
additional work upon the courts. Thus, the legislative his-
tory of ORS 137.225 is consistent with our conclusion that
third-degree assault and recklessly endangering another
person are not “traffic offenses,” and, therefore, exempt
from set aside pursuant to ORS 137.225(7), even when such
offenses result “from the operation of a motor vehicle.”
III. CONCLUSION
In sum, we conclude that third-degree assault and
recklessly endangering another person are not “traffic
offenses” as that term is used in ORS 137.225(7)(a), and are
not ineligible for set aside under ORS 137.225(1), even when
such offenses result “from the operation of a motor vehi-
cle.” That is so because such offenses do not fall within the
definition of “traffic offense” provided in ORS 801.555. The
trial court erred in concluding otherwise. We reverse and
remand.
Reversed and remanded.