State v. Thomas , 34 Or. App. 187 ( 1978 )

JOHNSON, J.

The state appeals from a trial court order sustaining defendant’s demurrer to a uniform traffic citation and complaint. In our former opinion, we held that "[a]n order which merely sustains a demurrer and does not dismiss or set aside the complaint is not an appealable order under ORS 157.091 [sic — 157.081] and ORS 138.060.” 32 Or App at 187. We were in error.

ORS 138.060 provides in part:

"The state may take an appeal from the circuit court to the Court of Appeals from:

"(1) An order made prior to trial dismissing or setting aside the accusatory instrument;

"* * * * (Emphasis supplied.)

The history of ORS 138.060 indicates a clear intent to broaden the state’s right to appeal in criminal cases to include appeals from orders sustaining demurrers to accusatory instruments. As we noted in our former opinion, under ORS 138.060 before amendment, it was well established that the state could not appeal from an order which merely sustained a demurrer to an accusatory instrument. See e.g., State v. Cloran, 233 Or 400, 374 P2d 748, 377 P2d 911, 378 P2d 961 (1963). At the time Cloran was decided, ORS 138.060 provided:

"The state may take an appeal to the Supreme Court from a judgment for the defendant on a demurrer to the indictment or from an order of the court arresting judgment.” (Emphasis supplied.)

ORS 138.060, before amendment, restricted the state to appealing only from a judgment which was entered after a demurrer was sustained, thus effectively preventing the state from appealing from a pretrial order granting a motion to dismiss the accusatory instrument.

In 1971,¹ ORS 138.060 was amended to read:

"The state may take an appeal to the Court of Appeals from:

"(1) An order made prior to trial dismissing the indictment.” (Emphasis supplied.)

The legislative history of this amendment indicates that the change in language was intended to broaden the state’s right to appeal in criminal cases by eliminating the requirement that the state obtain a judgment before filing an appeal following the sustaining of a demurrer to the accusatory instrument. See State v. Cannon, 17 Or App 379, 381-383, 521 P2d 1326, rev den (1974). However, it was not clear from this new language whether the state could appeal from an order sustaining a demurrer to an accusatory instrument if the order did not also dismiss the instrument.

In 1973,² ORS 138.060 was further amended to provide that the state may take an appeal from an order "dismissing or setting aside” an accusatory instrument. (Emphasis supplied.) An order sustaining a demurrer to an accusatory instrument clearly sets it aside and is thus an order from which an appeal will lie under ORS 138.060(1).

On the merits, defendant was charged by uniform traffic citation and complaint with driving while under the influence of intoxicants, ORS 487.540. The complaint alleged:

"That on the 8 day of May, 1977 at 10:10 PM * * * Thomas, David Wayne * * * did unlawfully operate vehicle, lie. No. MGM-327 * * * on a public highway, to-wit Lancaster at or near Center * * * and then and there commit the following traffic crime * * * DUII (prior conv. 04-02-76DUII State of Calif.) in violation of state statute in such case made and provided * * (Emphasis supplied).

ORS 487.540 designates driving while under the influence of intoxicants as a Class A traffic infraction. ORS 484.365 provides:

"(1) Any offense that would otherwise be punishable as a Class A traffic infraction shall be prosecuted and be punishable as a Class A misdemeanor if the defendant has been convicted of any class A traffic infraction or traffic crime within a five-year period immediately preceding the commission of the offense, and the previous conviction or dismissal was not part of the same transaction as the present offense.

"(2) In applying subsection (1) of this section, any conviction of a Class A infraction or a traffic crime as described in subsections (3) and (4) of this section, or a conviction before June 27, 1975, of any of the statutory counterparts of these offenses which occurred within the immediate five-year period before the commission of the present offense, shall be included whether the previous conviction occurred before or after June 27, 1975.

"(3) As used in this section, 'Class A traffic infraction’ includes:

"(a) Driving while under the influence of intoxicants.

"(b) Failure to perform the duties of a driver involved in an accident or collision which results only in damage to the property of another.

"(4) As used in this section, 'traffic crime’ includes:

"(a) Reckless driving.

"(b) Driving a motor vehicle while suspended or revoked.

"(c) Failure to perform the duties of a driver involved in an accident or collision which results in injury or death to any person.

"(d) Fleeing or attempting to elude a police officer.” (Emphasis supplied).

ORS 484.380 further provides in part:

"(1) In a prosecution under ORS 484.365, the state, municipality or political subdivision shall plead and prove the previous conviction unless the defendant stipulates to that fact prior to trial.”

Defendant demurred to the complaint on the ground that it failed to state facts constituting an offense in that the prior conviction pled was a foreign conviction. The trial court sustained the demurrer ruling that a "prior foreign conviction” could not be used to elevate a traffic infraction to a traffic crime under ORS 484.365. We agree, but the trial court erred in sustaining defendant’s demurrer to the complaint insofar as it charged the traffic infraction of driving under the influence of intoxicants.

The provisions of ORS 484.365 neither expressly include nor exclude the use of a prior foreign conviction. The statute, however, speaks in terms of "traffic infraction” and "traffic crime” which are words of art used in the Oregon Vehicle Code to designate particular types of prohibited conduct. The descriptive phrases used to identify the offenses in ORS 484.365(3) and (4) are in fact the statutory titles of those offenses. Although subsection (2) of ORS 484.365 speaks in terms of "statutory counterparts” to the present offenses under the vehicle code, it is clear from the context and the legislative history that "statutory counterparts” refers to offenses defined under the former vehicle code rather than offenses which might be counterparts to the Oregon offenses in a foreign jurisdiction’s statutes. The phrase "statutory counterparts” expressly refers to convictions occurring before June 27, 1975, the effective date of the new vehicle code. The official Commentary to the Proposed Vehicle Code states that "[cjonvictions occurring before the effective date of this Act would be included.” See Proposed Oregon Vehicle Code 101, Commentary, § 134 (1975). There is no reference or suggestion in the code commentary concerning foreign convictions. The implication is that foreign convictions were not to be included.

The state argues that we should construe ORS 484.365 to apply to foreign convictions because the statutory scheme of the vehicle code indicates a legislative intent to distinguish, particularly with respect to punishment, between first offenders and repeat offenders who commit certain serious traffic offenses. However, upon close examination of the statutory scheme, it appears that the legislature made a conscious decision not to enhance punishment under ORS 484.365 on the basis of prior foreign convictions. ORS 484.365 was enacted in 1975 as part of the new vehicle code.³ The 1975 Vehicle Code represented a major revision of existing law as well as the creation of entirely new provisions. Among the existing vehicle code provisions incorporated into, and revised to conform to, the new code provisions were those relating to habitual offenders, ORS 484.700 to 484.750. ORS 484.705, which defines "habitual offender,” refers expressly to persons who have been previously convicted of traffic offenses in other jurisdictions.⁴ The legislature thus had before it at the very time it was engaging in a comprehensive revision of the existing vehicle code a statute expressly providing for the use of a prior foreign conviction. The fact that the legislature did not use such express language in creating the provisions of ORS 484.365 indicates that it did not intend foreign convictions to be included.

The state also maintains that a construction of ORS 484.365 to include prior foreign convictions is supported by an examination of analogous provisions of the criminal code, i.e. the "ex-convict in possession” statute, ORS 166.270, and the "dangerous offender” statute, ORS 161.725. However, as the state acknowledges, both statutes now expressly provide that foreign convictions are included in the terms of the statute.⁵

Prior to 1975, ORS 166.270 did not expressly include foreign convictions. In State v. Jones, 4 Or App 447, 452, 479 P2d 1020 (1971), this court held that a prior conviction of a felony in another state was within the terms of the former statute. However, Jones is distinguishable from the situation here because the issue was the interpretation of what constitutes a prior "felony.” The term "felony” is one of general application which can be defined by resort to the statute of the other jurisdiction. This is in contrast to the terms "traffic infraction” and "traffic crime” used in ORS 484.365 which have neither general application nor are defined in other statutes.

Perhaps the most compelling reason to believe that the legislature did not intend to include foreign convictions under ORS 484.365 lies in an analysis of the nature of traffic offense convictions throughout the country and the potential problems posed by the attempted incorporation of the provisions of another state’s law into Oregon’s. When it enacted ORS 484.365 and the other provisions of the 1975 Vehicle Code, the legislature undoubtedly was aware that each of the fifty states has adopted its own substantive and procedural standards for traffic convictions in general, and driving-while-under-the-influence convictions in particular, with respect to the classifications and elements of the offenses, burden of proof, level of prohibited blood-alcohol content, penalties for violation, etc. While many states’ systems are similar to Oregon’s, many are different to some degree. In view of the differences, it is reasonable to assume that the legislature did not expressly include foreign convictions in ORS 484.365 in order to avoid a potentially unmanageable system in which trial courts would be called upon to determine to what extent the foreign conviction was comparable to a conviction for a similar offense in Oregon, or indeed, whether the offenses are similar. This difficulty is compounded by the fact that ORS 484.365 speaks in the criminal law term of "conviction” of a traffic crime or a Class A traffic infraction, but under the Oregon Vehicle Code, a Class A traffic infraction is civil, not criminal. However, the Class A traffic infraction of driving while under the influence of intoxicants has been judicially declared to be criminal in nature. Brown v. Multnomah County, 280 Or 95, 570 P2d 52 (1977).

ORS 484.365 is a penal statute. The common law rule with respect to penal statutes is strict construction. Under this rule, the fact that the statute does not expressly provide for the use of prior foreign convictions precludes the construction urged by the state. However, the common law rule has been abrogated with respect to the Oregon Criminal Code and replaced by ORS 161.025, which provides:

"* * * Chapter 743, Oregon Laws 1971, shall be construed according to the fair import of its terms * * * »

ORS 484.365 is not a part of Chapter 743, and thus does not fall within the terms of the quoted statute. However, assuming arguendo that the rule embodied in the statute applies to all penal statutes, whether or not found in the Criminal Code, the construction of ORS 484.365 we adopt here is according to the fair import of its terms.

While the trial court was thus correct in ruling that a prior foreign conviction is not included in the terms of ORS 484.365, the court erred in sustaining the demurrer to the complaint. The complaint was sufficient to charge the traffic infraction of driving under the influence of intoxicants with or without an allegation of a prior conviction. State v. Carpenter, 29 Or App 879, 565 P2d 768 (1977); ORS 484.170.

Petition for reconsideration allowed; former opinion withdrawn; reversed and remanded.

1 1971 Oregon Laws, chapter 644, § 1.

2 1973 Oregon Laws, chapter 836, § 276.

3 1975 Oregon Laws, chapter 451, § 134.

4 ORS 484.705 provides in pertinent part:

"(1) As used in ORS 484.700 to 484.750, unless the context requires otherwise, 'habitual offender’ means any person, resident or nonresident, who within a five-year period, has been convicted of or forfeited bail for the number and kinds of traffic offenses described by paragraphs (a) and (b) of this subsection, as evidenced by the records maintained by the division.

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"(2) The offenses included in paragraphs (a) and (b) of subsection (1) of this section include city traffic offenses, as defined by ORS 484.010, and offenses under any federal law, or any law of another state, including subdivisions thereof, substantially conforming thereto but do not include nonmoving offenses as defined in ORS 483.380 to 483.545, 487.895, 487.900, 487.905 and 487.915 to 487.925.

"(3) As used in ORS 484.700 to 484.750, 'division’ means the Motor Vehicles Division of the Department of Transportation or a similar agency of another state.” (Emphasis supplied).

5 ORS 161.725 provides in pertinent part:

"The maximum term of an indeterminate sentence of imprisonment for a dangerous offender is 30 years, if the court finds that because of the dangerousness of the defendant an extended period of confined correctional treatment or custody is required for the protection of the public and if it further finds, as provided in ORS 161.735, that one or more of the following grounds exist:

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"(2) The defendant is being sentenced for a felony that seriously endangered the life or safety of another, has been previously convicted of a felony not related to the instant crime as a single criminal episode, and the court finds that he is suffering from a severe personality disorder indicating a propensity toward criminal activity.

"(3) As used in this section, 'previously convicted of a felony’ means:

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"(c) Previous conviction by a general court-martial of the United States or in a court of any other state or territory of the United States, or of the Commonwealth of Puerto Rico, of an offense which at the time of conviction of the offense was punishable by death or by imprisonment in a penitentiary, prison or similar institution for a term of one year or more and which offense also at the time of conviction of the instant crime would have been a felony if committed in this state.” (Emphasis supplied).

ORS 166.270 provides in part:

"(1) Any person who has been convicted of a felony under the law of this state or any other state, or who has been convicted of a felony under the laws of the Government of the United States, who owns, or has in his possession or under his custody or control any pistol, revolver, or other firearms capable of being concealed upon the person, or machine gun, commits the crime of exconvict in possession of a firearm.” (Emphasis supplied).