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Oregon v. Buen

May 14, 1973

STATE OF OREGON, RESPONDENT,
v.
RICHARD BUEN, APPELLANT



Appeal from Circuit Court, Multnomah County. James R. Ellis, Judge. Nos. C-73-01-0182, C-73-01-0183, C-73-01-0184.

Oscar D. Howlett, Portland, argued the cause and filed the briefs for appellant.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.

Langtry, Judge. Schwab, Chief Judge, and Thornton, Judge.

Langtry

These appeals are separate but present the same question. They were tried separately and successively the same day to the same court, C-73-01-0184 first, C-73-01-0183 second, and C-73-01-0182 last. In none did the defendant produce evidence. They are prosecutions for driving a motor vehicle while operator's license is under suspension in violation of ORS 482.650, each arrest having been by a different traffic

officer on May 17, May 26 and June 23, 1972. (At time of sentence it developed that defendant had had two previous convictions in recent years for driving while operator's license was suspended.)

Each of the cases had been tried in the district court and appeals taken to the circuit court from convictions therein. In case C-73-01-0184 the district court sentenced the defendant to four days' imprisonment and the circuit court 30 days; in case C-73-01-0183 the district court sentenced the defendant to eight days and the circuit court six months; in case C-73-01-0182 the district court sentenced the defendant to 16 days and the circuit court to one year, all sentences to run consecutively.

The defendant contends (1) that there was not proof he had notice that his driver's license was under suspension and by reason of that deficiency he should have been acquitted in each case, and (2) that the circuit court could not sentence the defendant to longer terms of imprisonment than those imposed in the district court.

(1). Evidence introduced in the state's cases concerning notice of suspension was primarily a certified copy of the notice of suspension from the Motor Vehicles Division and a certified copy of the signed return receipt from the post office department evidencing mailing and delivery of the notice of the suspension. The latter showed that the notice was mailed to the defendant at 7014 N. Lancaster, Portland, Oregon and that the return receipt was signed "Mrs. Joe Loctos" on the line providing for "signature of addressee's agent, if any" and that the name "Richard Buen" was written thereunder. Defendant contends that this evidence alone is not sufficient to show he had notice of

the suspension of his driver's license. ORS 482.570 as amended by Oregon Laws 1971, ch 428 provides that "* * * [s]ervice of the notice is accomplished either by mailing the notice by certified mail, return receipt requested, * * *" or by personal service.

Before the 1971 amendment to ORS 482.570 that statute provided that notice was accomplished by a mailing of the notice or personal service, and it provided that "* * * [n]otice by mail is afforded a disputable presumption of receipt * * *." In Hall v. Dept. of Motor Vehicles, 2 Or App 248, 467 P2d 975 (1970), we interpreted the statute as it was before the 1971 amendment; and we discussed the disputable presumption of receipt of mailed notice referred to therein. We held that inasmuch as the presumption was disputable, if a defendant denied on trial that he had received the mailed notice, a question of fact was presented as to whether he actually did have notice. The trial court in that ...


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