State v. Benner

NEWMAN, J.

The state indicted defendant for driving while revoked. Former ORS 487.560 (now ORS 811.175). Before trial, defendant moved to dismiss the indictment, arguing that the notice of revocation that the Motor Vehicles Division mailed to him was defective under State v. Tooley, 297 Or 602, 687 P2d 1068 (1984). After receiving evidence, the court dismissed the indictment, and the state appeals. We affirm.

During late 1983, MVD received notification that defendant had been convicted of a felony, a material element of which was the operation of a motor vehicle. On December 12.1983, MVD mailed a notice (dated December 9,1983) that stated that, pursuant to former ORS 486.211 (3) (c) (now ORS 809.410(4)) and other provisions not relevant to this case, defendant’s license would be revoked for an indefinite period beginning December 14,1983. On the reverse side, the notice stated that defendant had the right to a hearing if he requested it within 20 days of the date of the notice. MVD attempted to deliver the notice to defendant by certified mail, but he never received it. He was arrested for driving while revoked on June 12.1984.

The state concedes that, because the notice sent by MVD erroneously stated that the revocation of defendant’s operator’s license would become effective in five days from the date of the notice, it was defective under State v. Tooley, supra. It argues, however, that the defect was harmless, because defendant never received the notice and was, therefore, not misled by it. Defendant, in response, argues that the revocation of his license was invalid, because the notice was defective and that, without a valid revocation, he could not be convicted.

Both parties rely on State v. Tooley, supra. There, as here, MVD sent the defendant a notice which indicated that the revocation would become effective before the time to exercise his statutory right to a pre-revocation hearing had expired. For this reason, the Supreme Court held that the notice was defective under former ORS 486.221¹ (now ORS 809.410; ORS 813.400) and reversed the conviction. We have interpreted Tooley to mean that, “if MVD fails to notify a licensee accurately of his statutory right to a hearing, suspension based on that notice cannot support a DWS or DWR conviction.” State v. Jones, 76 Or App 157, 162, 708 P2d 1168 (1985). (Emphasis in original.)

The Tooley court, however, did not make it clear whether it was MVD’s failure to provide proper notice or defendant’s receipt of defective notice that was critical. We conclude that it was the former. Former ORS 486.221 provided that, “[b]efore the division suspends or revokes the license of any person * * *, [it] shall notify the licensee * * (Emphasis supplied.) The notice that MVD provides cannot merely notify a licensee of his pending suspension or revocation — it must accurately apprise him of his statutory procedural rights. State v. Tooley, supra. Because the notice mailed to defendant was defective in this respect, the revocation of his license cannot support a charge of driving while revoked.

The state argues that any defect in the notice was “harmless,” because defendant never received it and, therefore, was not misled. Under our analysis, however, that argument is beside the point. MVD failed to give the required notice and, accordingly, the dismissal was proper.

Affirmed.

1 Former ORS 486.221(1) provided:

“Before the division suspends or revokes the license of any person or vehicle registration of any employer under ORS 486.046, or continues, modifies or extends a suspension or revocation for any reason set forth in ORS 486.211 or 486.251, the division shall notify the licensee and registrant as set forth in ORS 482.570 and afford the person an opportunity of a hearing before a representative of the division in the county wherein the licensee resides. The hearing shall be conducted as a contested case in accordance with ORS 183.310 to 183.550. Upon such hearing the division, good cause appearing therefor, may continue, modify or extend such a suspension or revocation of the license or the vehicle registration or revoke or suspend such license or vehicle registration.”