Appeal from Circuit Court, Columbia County. Donald L. Kalberer, Judge.
Robert P. VanNatta, St. Helens, argued the cause and filed the brief for appellant.
John F. Hunnicutt, Deputy District Attorney, St. Helens, argued the cause for respondent. With him on the brief was Robert A. Lucas, St. Helens.
Schwab, Chief Judge, and Foley and Thornton, Judges.
Defendant was convicted in the district court of driving a motor vehicle upon a highway while having more than .15 percent by weight of alcohol in the blood. ORS 483.999. She appealed to the circuit court and after a trial de novo was convicted by a jury of the same offense. She was sentenced to serve six days in jail and to pay a fine of $155. She appeals from the sentence; specifically, from the imposition of the jail term.
Defendant claims that the trial judge improperly exercised his discretion in imposing sentence because he erroneously interpreted ORS 483.999 as making mandatory the imposition of a jail sentence upon conviction.
The record indicates this probably was the trial judge's interpretation of the statute:
"THE COURT: * * * I, frankly, interpret the six days to mean just what it says and that is not less than six days in jail, and therefore it will be the order of the court that there will be a fine of $155 total and six days in the Columbia County Jail."
"MR. VANNATTA [defendant's counsel]: Your Honor, I have one question for the benefit of clarifying the record. Do I understand that the court's reasoning behind imposing the jail sentence is based solely upon the fact that the court interprets the statute to believe that that's a mandatory provision?
"MR. VANNATTA: And the court would not have imposed that sentence if it had not so ...