State v. Nelson ( 2022 )

230
Submitted February 11; reversed as to permanent revocation of privileges on
Count 1, otherwise affirmed March 9, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEPH ANDREW NELSON,
Defendant-Appellant.
Deschutes County Circuit Court
19CR34501; A174070
505 P3d 1105
Raymond D. Crutchley, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before James, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
PER CURIAM
Reversed as to permanent revocation of privileges on
Count 1; otherwise affirmed.
Cite as 318 Or App 230 (2022) 231
PER CURIAM
Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants (DUII), ORS
813.010(4) (Count 1), and resisting arrest, ORS 162.315
(Count 3), challenging the permanent revocation of his
driving privileges. ORS 809.235 requires a court to perma-
nently revoke a DUII defendant’s driving privileges if the
defendant has two prior convictions for DUII under ORS
813.010 or its “statutory counterpart” in another state. The
trial court found California Vehicle Code section 23152(b) to
be a statutory counterpart.
Under State v. Guzman/Heckler, 366 Or 18, 35,
455 P3d 485 (2019), an out-of-jurisdiction offense is a “stat-
utory counterpart” of Oregon DUII only if the elements
of defendant’s prior convictions are the close equivalent,
or “match,” the elements of the Oregon offense. In State
v. Ramirez, 312 Or App 117, 493 P3d 522 (2021), we held
that elements of a Washington conviction for negligent
driving—which required proof of driving likely to endanger
another person or property and that the driver “exhibits the
effects” of an intoxicant—did not “match” those of Oregon
DUII because a person could commit the Washington
offense even if there was no nexus between the impairment
and the driving. The state concedes that under Ramirez,
California Vehicle Code section 23152(b) is not a statu-
tory counterpart to Oregon DUII, and that concession is
well taken.
The state argues that, despite the concession of
error, we should nevertheless affirm the trial court under
what we understand to be a “right for the wrong reasons”
rationale, as articulated in Outdoor Media Dimensions Inc.
v. State of Oregon, 331 Or 634, 659-60, 20 P3d 180 (2001)
(setting out conditions for affirming on an alternative basis).
The state acknowledges that the trial court erroneously
found that defendant’s prior conviction constituted a statu-
tory counterpart to an Oregon offense under ORS 809.235
(1)(b)(A)(ii), but presents an alternative basis for affirming
the trial court’s erroneous ruling: that the prior conviction
falls under ORS 809.235(1)(b)(C), an argument that the
232 State v. Nelson
state did not raise below. We decline the state’s invitation,
concluding the record may have developed differently.
Reversed as to permanent revocation of privileges
on Count 1; otherwise affirmed.