State v. Neighbors

640 P.2d 643 (1982) 55 Or.App. 882

STATE of Oregon, Respondent,
v.
Harold Loyd NEIGHBORS, Appellant.

No. 80-13605-K; CA A21786.

Court of Appeals of Oregon.

Submitted on Record and Briefs December 2, 1981. Decided February 8, 1982.

Harold L. Neighbors, filed the brief pro se for appellant.

Dave Frohnmayer, Atty. Gen., William F. Gary, Sol. Gen., and William F. Nessly, Jr., Asst. Atty. Gen., Salem, filed the brief for respondent.

Before RICHARDSON, P.J., and THORNTON and VAN HOOMISSEN, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals his conviction for driving while under the influence of intoxicants. ORS 487.540. He contends that the prosecution is barred on the ground of former jeopardy and that he was denied effective assistance of counsel. We affirm.

Defendant was arrested and transported to the county jail, where he was asked to take an "intoxilyzer" test. He refused to take the test, and his operator's license was suspended for 120 days by the Motor Vehicles Division pursuant to ORS 482.540. He did not appeal that suspension and does not challenge its validity here. Subsequent to the suspension, defendant was tried and convicted on the present charge.

Defendant contends: "The District Court lacked jurisdiction to hear this matter because [defendant] had already paid the penalty prescribed by law of having his driver's license suspended for 120 days, and standing trial put him twice in jeopardy for the same crime." Jurisdictional defects may be raised at any time, but the former jeopardy bar is a personal right, not a jurisdictional matter. See Barnett v. Gladden, 237 Or. 76, 390 P.2d 614, cert. den. 379 U.S. 947, 85 S. Ct. 445, 13 L. Ed. 2d 545 (1964). Therefore, an objection based on former jeopardy must be raised at trial or it is waived. State of Oregon v. Monk, 199 Or. 165, 260 P.2d 474 (1953); ORS 135.470, 135.520.

Defendant may be raising this issue for the first time on appeal. His brief, submitted pro se, does not set out verbatim the pertinent portions of the record as required by our Rule of Appellate Procedure 25.10. The state's brief asserts that no former jeopardy objection was raised at trial. Regardless of the timing of the objection, it has no merit. A driver's license suspension under ORS 482.540 is a civil or administrative matter, not a criminal matter. Burbage v. Dept. of Motor Vehicles, 252 Or. 486, 491, 450 P.2d 775 (1969); Stratikos v. Dept. of Motor Vehicles, 4 Or. App. 313, 315, 477 P.2d 237 (1970), 478 P.2d 654, rev. den. (1971); see State v. Robinson, 235 Or. 524, 532, 385 P.2d 754 (1963). The doctrine of former jeopardy applies only to criminal prosecutions. E.g., Klein v. Real Est. Comm. Holbrook, 19 Or. App. 646, 651-52, 528 P.2d 1355 (1974).

Defendant also contends that he was denied effective assistance of counsel. This issue more properly can be resolved in a post-conviction proceeding, where defendant's challenge may be heard at an evidentiary hearing under ORS 138.510 to 138.680. State v. Chase, 51 Or. App. 289, 624 P.2d 1100 (1981); State v. Robinson, 25 Or. App. 675, 550 P.2d 758 (1976).

Affirmed.