Argued and submitted on January 17, 2013.
Multnomah County Circuit Court 100545212 Karin Johana Immergut, Judge.
Jedediah Peterson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jeremy Rice, Assistant Attorney General, argued the cause for respondent. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Samuel A. Kubernick, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.
DE MUNIZ, S. J.
Defendant appeals a judgment of conviction for reckless driving, ORS 811.140, which was based on a unanimous guilty verdict returned by a six-person jury. Defendant first assigns error to the admission into evidence of two Certificates of Accuracy for Alcohol Breath Testing Equipment, claiming that the admission violated his rights under the Confrontation Clause of the Sixth Amendment to the United States Constitution. We reject that argument without further discussion. Second, defendant claims that his rights under Article I, section 11, of the Oregon Constitution were violated when the court empaneled a jury of fewer than 10 persons and accepted a verdict from that jury. For the reasons stated below, we affirm.
The facts are not in dispute. One evening, defendant was found in the driver seat of his car, which was running but stopped in the left turn lane of a public road. He appeared to be asleep or unconscious. When police officers arrived, they smelled alcohol on defendant's breath and noticed that his eyes were watery, his eyelids were droopy, and his speech was slurred. After defendant performed poorly on field sobriety tests, he was arrested and transported to the police station. There, defendant agreed to take an Intoxilyzer alcohol breath test, which revealed that his blood alcohol content was 0.30.
Defendant was charged with driving under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140. Before trial, defendant requested a jury of at least 10 persons. The court denied his request and empaneled a jury of six persons. At the conclusion of the trial, the jury found defendant guilty of reckless driving.
The issue we address in this case is whether, under Article I, section 11, and Article VII (Amended), section 9, of the Oregon Constitution, a defendant in a misdemeanor case has a right to a jury of 10 or more persons. The court empaneled a jury of six persons, as directed by ORS 136.210(2), which provides, "In criminal cases in the circuit courts in which the only charges to be tried are misdemeanors, the trial jury shall consist of six persons." That statute was originally enacted in 1979, under the authority of Article VII (Amended), section 9, which states, "Provision may be made by law for juries consisting of less than 12 but not less than six jurors."
Defendant argues that the enactment of ORS 136.210(2) was not within the authority granted the legislature under Article VII (Amended), section 9, because it is contrary to a criminal defendant's pre-existing right under Article I, section 11, to a jury of at least 10 persons. Article I, section 11, provides, in part:
"In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; * * * provided, however, that in the circuit court ten members of the jury may render a verdict of guilty or not guilty, save and except a verdict of guilty of first degree murder, which shall be found only by a unanimous verdict, and not otherwise[.]"
Defendant interprets Article I, section 11, to mean that any criminal defendant tried in circuit court is entitled to a jury of at least 10 persons because 10 persons are required to return a verdict. He argues that Article VII (Amended), section 9, may apply to criminal cases in other courts, but it does not modify or eliminate the Article I, section 11, requirement of at least 10 jurors for criminal cases in circuit court. Because defendant's trial was held in circuit court, he argues that 10 members of the jury were required to render a verdict; therefore, empaneling a six-person jury was improper, and the verdict returned by that jury is invalid.
Resolution of defendant's claim requires that we interpret certain provisions within Article I, section 11, and Article VII (Amended), section 9, of the Oregon Constitution. Both provisions at issue were added to the Oregon Constitution as referred constitutional amendments, so we seek to determine the voters' intent using the analytical framework set forth in Roseburg School Dist. v. City of Roseburg, 316 Or 374, 378, 851 P.2d 595 (1993), and Ecumenical Ministries v. Oregon State Lottery Comm., 318 Or 551, 559, 871 P.2d 106 (1994). See Stranahan v. Fred Meyer, Inc., 331 Or 38, 57, 11 P.3d 228 (2000) (so holding). First, we consider the text and context of the provision, including relevant case law. Id. at 56, 61. If the voters' intent is not clear from the text and context, we consider the history of the provision, including "sources of information that were available to the voters at the time the measure was adopted and that disclose the public's understanding of the ...