State v. Jackson ( 2022 )

370
Argued and submitted August 7, 2020, affirmed March 16, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARCUS JASON JACKSON,
Defendant-Appellant.
Milwaukie Municipal Court
EU034385; A170358
507 P3d 727
Defendant appeals a judgment of the City of Milwaukie Municipal Court
upholding his citation for driving over the speed limit. He contends that the
municipal court erred in denying his motion to dismiss the citation pursuant
to ORS 810.420(2), because there was no evidence that the officer issuing the
citation had “taken and passed” a training course in the use of the specific make
and model of radar device that the officer used to measure defendant’s speed.
Held: Based on the text and legislative history of ORS 810.420(2), the court did
not err in interpreting the statute to require that the officer be trained in the
type of speed measuring device used—be it radar, lidar, or something else—and
not necessarily the specific make or model of that device. Because the record con-
tains evidence that the officer “went through” a training program regarding the
use of radar, and he was on duty as a patrol and traffic supervisor using a radar
device to enforce the motor vehicle laws when he cited defendant, the court did
not err in denying defendant’s motion to dismiss.
Affirmed.
Kimberly M. Graves, Judge.
Blake Dore argued the cause for appellant. Also on the brief
was Dore Law Firm, LLC.
Dashiell L. Farewell, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeHoog, Judge pro tempore.*
DeHOOG, J. pro tempore.
Affirmed.
______________
* Pagán, J., vice DeVore, S. J.
Cite as 318 Or App 370 (2022) 371
DeHOOG, J. pro tempore
Using a radar speed measuring device, a police
officer clocked defendant driving over the speed limit and
cited him for violating ORS 811.111.1 Defendant pleaded not
guilty and went to trial in the City of Milwaukie Municipal
Court. The municipal court upheld the citation and entered
a judgment imposing a fine of $265. Defendant appeals
that judgment, ORS 138.057, assigning error to the court’s
denial of his motion to dismiss the citation based on ORS
810.420(2). That statute provides:
“A police officer may not issue a citation based on a speed
measuring device unless the officer has taken and passed
a training course, approved by the law enforcement agency
that employs the officer, in the use of the speed measuring
device.”
For the reasons that follow, we affirm.
The parties do not dispute the pertinent facts, which
are few. In October 2018, Sergeant Marl, “a patrol supervi-
sor and the traffic supervisor” with the Milwaukie Police
Department, observed defendant driving 54 miles per hour
in a 30 mile-per-hour speed zone. Marl measured defen-
dant’s speed using a “Decatur Genesis” model handheld
radar device. Based on that reading, Marl issued defen-
dant a traffic citation for violating the posted speed limit.
Defendant entered a not guilty plea and the case went to
trial.
Marl was the state’s only witness at trial. He tes-
tified that, after completing the police academy in 1995, he
“went through a second radar-specific course in 2001,” which
included training in the use of radar and lidar.2 The train-
ing course was hosted by the City of Tigard and approved by
1
ORS 811.111(1)(d) provides, in part, that a person commits the offense of
violating a speed limit if the person, “[e]xcept as otherwise provided in this sec-
tion, drives a vehicle upon a highway at a speed greater than a speed posted
by authority granted under ORS 810.180.” The statute has been amended since
defendant was cited in this case; however, because those amendments do not
affect our analysis, we cite the current version here.
2
Although the words radar and lidar are capitalized in various ways in the
transcript, those words do not need capitalization. See State v. Branch, 243 Or
App 309, 311 n 1, 259 P3d 103, rev den, 351 Or 216 (2011) (so noting). We have
modified the capitalization accordingly when quoting from the transcript.
372 State v. Jackson
the Department of Public Safety Standards and Training.
Marl testified that he did not remember whether the train-
ing course had specifically used a Decatur Genesis brand or
model of speed measurement device, but he “d[idn’t] believe
so.” As to defendant’s alleged violation, he testified that he
had tested the radar device according to his training before
going on patrol that morning and again at the end of his
shift, and that it had been working properly.
Following Marl’s testimony, defendant moved to dis-
miss “under” ORS 810.420(2) based on the state’s purported
failure to establish “that [Marl had] passed that training
course, or that the training course was in the speed measur-
ing device that he used in this particular case.”3 The munic-
ipal court denied defendant’s motion, stating:
“I’ve heard the motion before, and my belief continues to be
that it is not as specifically construed as you would argue
that it is, were they trained in the used [sic] of a radar unit,
the technology in which they’re using, or a lidar unit, the
technology, not the specific manufacturer’s device.
“And so with regard to the taken and passed, I under-
stand that the specific wording was not used. Though, with
the Sergeant here using the equipment, I think it’s the
appropriate conclusion that the officer passed the training
course that he participated in.”
After closing arguments, the court concluded that
the state had established the prima facie elements of the
alleged offense, found defendant guilty, and entered a judg-
ment fining him $265. Defendant now appeals.
Defendant argues on appeal that the trial court
erred in denying his motion to dismiss, because the state
failed to establish the “conditions precedent” to the issuance
of the citation, namely (1) that Marl had taken a training
course in the specific speed measuring device that he had
3
Defense counsel argued, in part:
“[T]his goes beyond just the issue of statutory construction, but instead there
also is the point that Sergeant Marl testified that he went to the radar course,
but there’s no testimony that he passed the radar course.
“The statute is very clear that the officer has to take and pass the train-
ing course. That has to be here in the record, and it’s not in this particular
case.”
Cite as 318 Or App 370 (2022) 373
used—a Decatur Genesis model radar device—and (2) that
he had passed the course. The state disputes both points.
The state first asserts that the municipal court correctly
interpreted ORS 810.420(2) as requiring that an officer be
trained on the type of speed measuring device used—here,
radar, as opposed to lidar or another technology—not the
particular make and model of the device. Second, the state
contends that the trial court could properly infer from the
evidence presented—specifically, that Marl “went through”
the training course and was then permitted by the police
department to use the device—that he had passed the
course.
Before considering those arguments, we pause to
address the procedural posture of this case. As we have
explained with regard to a closely related statute, the con-
ditions set out in ORS 810.420 are “conditions precedent
for the issuance of a citation” using speed measurement
devices as a means of detecting violations of ORS 811.111;
they are not “substantive requirements for the commission
of the offense itself.” 4 See State v. King, 199 Or App 278,
284, 111 P3d 1146, rev den, 339 Or 544 (2005) (construing
ORS 810.439, which provides for the use of photo radar as a
means of detecting violations of former ORS 811.123 (2001),
repealed by Or Laws 2003, ch 819, §§ 19, 21). As a result,
the proper time for a defendant to raise the state’s failure to
establish those conditions precedent “is in a pretrial motion
aimed at the efficacy of the charging instrument.” Id. at
285. Accord State v. Daly, 275 Or App 1012, 1017, 365 P3d
1177 (2015) (holding that trial court erred in concluding that
the defendant’s pretrial motion to dismiss challenging a
4
ORS 810.420 provides in full:
“(1) When the speed of a vehicle has been checked by a speed measuring
device, the driver of the vehicle may be stopped, detained and issued a cita-
tion by a police officer if the officer is in uniform and has either:
“(a) Observed the recording of the speed of the vehicle by the device; or
“(b) Probable cause to detain based upon a description of the vehicle or
other information received from the officer who has observed the speed of the
vehicle recorded.
“(2) A police officer may not issue a citation based on a speed measuring
device unless the officer has taken and passed a training course, approved by
the law enforcement agency that employs the officer, in the use of the speed
measuring device.”
374 State v. Jackson
condition precedent to the issuance of a citation under ORS
810.439 was premature).
Here, defendant did not comport with that proce-
dure and instead moved to dismiss the citation after the
state presented its evidence at trial. However, it is appar-
ent that the parties and the municipal court all understood
defendant’s motion to challenge whether the state had sat-
isfied the conditions required by ORS 810.420(2), and not
the state’s failure to establish the elements of the offense
itself; as a result, the question was fully litigated at trial.
Moreover, the state does not contend that it was prejudiced
by defendant’s failure to address the issue pretrial. We
therefore proceed to consider defendant’s challenge to the
trial court’s denial of his motion to dismiss. See generally
Daly, 275 Or App at 1017 (concluding that the defendant had
not been prejudiced by trial court’s erroneous conclusion
that his pretrial motion to dismiss was premature, where
defendant had had opportunity to litigate the same motion
at trial).
Turning to the merits, the meaning of ORS
810.420(2) presents an issue of statutory construction that
we review for legal error, State v. Robinson, 288 Or App 194,
198, 406 P3d 200 (2017), using the methodology set out in
PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12,
859 P2d 1143 (1993), and State v. Gaines, 346 Or 160, 171-
73, 206 P3d 1042 (2009). Thus, we examine the text of the
statute, in context, along with any useful legislative history
and, where appropriate, canons of construction. Our objec-
tive is to determine the meaning most likely intended by the
enacting legislature. Robinson, 288 Or App at 199.
Beginning with the pertinent text, we again set out
ORS 810.420(2), which provides:
“A police officer may not issue a citation based on a speed
measuring device unless the officer has taken and passed
a training course * * * in the use of the speed measuring
device.”
(Emphases added.) Relying on the statute’s use of the indef-
inite and definite articles “a” and “the,” defendant argues
that the issuing officer must be trained in the use of the
Cite as 318 Or App 370 (2022) 375
specific make and model of speed measuring device that the
officer used to detect the driver’s speed. He contends that, by
using the indefinite article “a” to describe the speed measur-
ing device in the first part of the sentence, followed by the
definite article “the” preceding “speed measuring device” in
the latter part of the sentence, the legislature signaled its
intent to require that the speed measuring device that an
officer actually uses be of the same make and model as the
device on which the officer was trained. As defendant reads
the text, “the” speed measuring device referenced in the
second part of the statute necessarily corresponds with the
speed measuring device referenced in the first part—which,
according to defendant, is the actual speed measuring device
that was used—here, a Genesis Decatur radar device. Thus,
at least in defendant’s view, the state was required to estab-
lish that Marl took and passed a training course regarding
that specific radar device.
Although defendant’s reading of ORS 810.420(2) is
plausible, we are not persuaded that his is the only plausible
reading. We agree that there is a correlation between “the”
device specified in the second part of the sentence and “a”
speed measuring device in the first part. State v. Rodriguez,
217 Or App 24, 30-31, 175 P3d 471 (2007) (citing Carroll and
Murphy, 186 Or App 59, 68, 61 P3d 964 (2003) for the propo-
sition that the legislature generally uses the indefinite arti-
cle “a” to refer to an unidentified, undetermined, or unspec-
ified object and uses the definite article “the” to indicate its
contemplation of a definite object). It is also true that “the
use of the definite article can signify a narrowing intent.”
Wyers v. American Medical Response Northwest, Inc., 360
Or 211, 224, 377 P3d 570 (2016); see also Rodriguez, 217 Or
App at 30 (noting that “the use of the definite article often
is understood to signify an intention to refer to a specific
object”).
However, that does not compel the construction
defendant urges. That is, the definite article “the” in the
second clause could be read to narrow the training require-
ment to the particular make and model of speed measuring
device used by the officer in citing the motorist, as defendant
contends. However, it could also—as the state posits—be
376 State v. Jackson
understood to narrow the reference to the type of speed mea-
suring device—for example, radar or lidar—used by the offi-
cer.5 See Wyers, 360 Or at 223-24 (“On the one hand, the use
of the definite article ‘the’ in reference to ‘physical or finan-
cial abuse’ could refer to the specific incident or incidents of
abuse that the defendant allegedly has permitted another
to commit against the plaintiff or plaintiffs. On the other
hand, it could refer more generally to the type of abuse that
the defendant has permitted another to commit, whether
against the plaintiff or against another vulnerable person.”
(Emphasis in original.)). In other words, the plain text of the
statute does not require the level of specificity that defen-
dant urges us to adopt. And, given that the legislature did
not express that requirement in its chosen text, we must
be cautious in finding that such a requirement is implied.
See ORS 174.010 (“In the construction of a statute, the office
of the judge is simply to ascertain and declare what is, in
terms or in substance, contained therein, not to insert what
has been omitted, or to omit what has been inserted[.]”).
The context of ORS 810.420(2) provides no further
clues as to its meaning, so we turn to the legislative history
of that provision. On balance, that history also supports a
broader reading of the statute, that is, a reading that does
not require the state to establish that an officer was trained
on the specific make and model of speed measurement device
that the officer used in issuing a particular citation.
As introduced, Senate Bill (SB) 153 (2001) required
the Oregon State Police (OSP) to develop a training program
for the use of speed measuring devices and included an
undetermined general fund appropriation for that purpose.
It also amended ORS 810.420 to add a new subsection (2),
which provided, “A police officer may not issue a citation
based on a speed measuring device unless the officer has
had _____ hours of training in the use of the device” in the
program developed by OSP. At the first public hearing on the
bill, the Senate General Government and Transportation
Committee considered and adopted the amended “-1” ver-
sion of the introduced bill. The -1 amendments deleted the
5
The case law defendant cites in support of his position is unpersuasive for
similar reasons.
Cite as 318 Or App 370 (2022) 377
requirement that OSP develop a training program and the
associated appropriation, and, by, among other things, elim-
inating the minimum hour requirement, amended ORS
810.420(2) to reflect the present text (set out above, 318 Or
App at 371). Compare SB 153 (2001), with id. (A-Engrossed).
Senator Fisher, the bill’s sponsor, testified that he
had introduced the bill to address a concern raised by a
constituent—a former police officer—who had been pulled
over by an officer using a radar device whose technology
the officer clearly did not understand. The officer admit-
ted that the only training that he had received on the
device was how to turn it on and off. The proposed legis-
lation was intended to ensure that law enforcement offi-
cers in all jurisdictions would receive training in the speed
measuring devices that they used on the road. See Audio
Recording, Senate Committee on General Government and
Transportation, SB 153, Mar 27, 2001, at 0:51:35 (state-
ments of Kevin Campbell, Oregon Association of Chiefs of
Police and Sen Bill Fisher), http://records.sos.state.or.us/
ORSOSWebDrawer/Record/4159457 (accessed Mar 9, 2022);
see also Audio Recording, House Committee on Judiciary,
SB 153A, May 22, 2001, at 0:19:23 (statement of Sen Bill
Fisher), http://records.sos.state.or.us/ORSOSWebDrawer/
Record/4098881 (accessed Mar 9, 2022). The senate com-
mittee also discussed how such training was necessary to
help ensure that citations are upheld in court and to assure
the public that citations are based on accurate measure-
ments. Audio Recording, Senate Committee on General
Government and Transportation, SB 153, Mar 27, 2001, at
1:06:40 (statement of Sen Bill Fisher), http://records.sos.state.
or.us/ORSOSWebDrawer/Record/4159457 (accessed Mar 9,
2022).
Senator Fisher further explained that the -1
amendments had been developed in recognition of the lim-
ited financial resources, especially in rural districts like his
own, to “do a lot of fancy training,” and that “it was not our
intent to cause any real financial burden to any agency.”
Id. at 1:12:57. He noted in particular the expense and dif-
ficulty associated with officers having to attend train-
ing outside their jurisdictions and commented that local
law enforcement agencies would instead be able to do the
378 State v. Jackson
training in house or in cooperation with other agencies.
Id. at 1:02:42; see also Audio Recording, House Committee
on Judiciary, SB 153A, May 22, 2001, at 0:20:50 (statement
of Sen Bill Fisher, in reference to the -1 amendments, that
“we made it as easy as we could”), http://records.sos.state.
or.us/ORSOSWebDrawer/Record/4098881 (accessed Mar 9,
2022).
Curt Curtis of the Oregon State Police explained that
the bill was meant to apply not only to radar devices, but also
to various other speed measuring devices, including lidar,
aircraft surveillance cameras, and pacing technology. Audio
Recording, Senate Committee on General Government and
Transportation, SB 153, Mar 27, 2001, at 1:08:15 (statement
of Curt Curtis, Oregon State Police), http://records.sos.state.
or.us/ORSOSWebDrawer/Record/4159457 (accessed Mar 9,
2022). He further explained that the approval of training
programs had been purposely left up to individual law
enforcement agencies, partly in recognition that technol-
ogy changes quickly and because the bill’s sponsors wanted
officers to be able to try out new equipment without wait-
ing for OSP to develop new training criteria. Id. There was
no suggestion in the committee hearings that there was or
might be significant operational differences between var-
ious makes and models of a single type of speed measur-
ing device; rather, the thrust of the testimony was more
general—that it was important for officers to be trained in
the equipment they were using to enforce the speed laws
and that the training be accomplished in a cost-effective,
practical manner.
Given that history, we conclude that the legislature’s
most likely intended meaning is that an officer be trained in
the use of the type of speed measuring device—be it radar,
lidar, or something else—that the officer used in issuing a
citation, and not necessarily the specific make or model of
that device. In other words—returning to the parties’ gram-
matical disagreement—we agree with the state that “the
speed measuring device” referenced in the second part of
ORS 810.420(2) means the type of device used by the offi-
cer, not the particular make or model. To conclude that ORS
810.420(2) requires officers to take a new training course for
Cite as 318 Or App 370 (2022) 379
every make and model of a speed measuring device that they
might encounter would undermine the legislature’s express
goals of minimizing the financial impact of the requirement
and making it simple for law enforcement agencies to com-
ply with. We therefore reject defendant’s argument that the
court should have dismissed the indictment because there
was no evidence that Marl was trained specifically in the
use of the Decatur Genesis model radar device.
We turn to defendant’s argument that the court
erred in denying his motion to dismiss the citation because
there is also no evidence in the record that the officer
“passed” the training course, as required by the statute.
Again, we disagree.
ORS 810.420(2) requires that the officer issuing the
citation have “taken and passed a training course” approved
by the employing agency. The term “passed” is not defined
in the statute; we therefore assume that the legislature
intended the plain meaning of the word to apply. Dowell v.
Oregon Mutual Ins. Co., 268 Or App 672, 676, 343 P3d 283,
rev den, 357 Or 324 (2015) (“When a term is defined by a
statute, we look to the statutory definition, but when a term
is not statutorily defined, we look to dictionary definitions to
ascertain the plain meaning of the term.”). Given the con-
text in which it is used here, the most relevant dictionary
definition of the transitive verb “pass” is “to go through suc-
cessfully or satisfactorily : attain the required standard in
: satisfy the requirements of <~ ed the bar examination>
<had ~ed a security check * * * >.” Webster’s Third New Int’l
Dictionary 1650 (unabridged ed 2002).
In this case, Marl testified that, after the police
academy, he “went through a second radar-specific course in
2001,” which included training in radar and lidar technolo-
gies. That is sufficient to establish that Marl had “taken” a
training course in the use of radar; defendant does not argue
otherwise. The record also establishes that, at the time he
cited defendant, Marl was working for the Milwaukie Police
Department as a patrol and traffic supervisor and was on
duty using a radar device to enforce motor vehicle laws.
From that evidence, the municipal court could reasonably
infer that Marl had also “passed” the training course—that
380 State v. Jackson
is, that he had “go[ne] through [it] successfully or satisfacto-
rily.” As discussed above, the legislature intended the train-
ing requirement to be practical and cost effective; it did not
require the officer to attend a definite program, complete
a minimum number of hours, or satisfy any specific profi-
ciency standard. In those circumstances, evidence that Marl
“went through” a training program regarding the use of
radar and later used a radar device while on duty as a police
officer—specifically, as “a patrol supervisor and the traffic
supervisor”—is sufficient to support the inference that Marl
had successfully completed or “passed” the required course.
Affirmed.