Submitted February 25, 2014.
MI112673. Deschutes County Circuit Court. Wells B. Ashby, Judge.
Peter Gartlan, Chief Defender, and Elizabeth G. Daily, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and De Muniz, Senior Judge.
[271 Or.App. 268] ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010. He contends that the court erred in denying his diversion petition on the ground that he was ineligible to enter the diversion program under ORS 813.215(1)(h), which prohibits a person who holds a commercial driver license (CDL) from entering diversion. Defendant asserts that the Oregon Department of Transportation (ODOT) erred in granting him a CDL and, consequently, that he did not hold a CDL for purposes of ORS 813.215(1)(h) and could enter diversion. We conclude that defendant held a CDL and, hence, that the court did not err in denying defendant's diversion petition.
The relevant facts are procedural and uncontested. The state charged defendant with DUII. Defendant responded by petitioning the trial court to allow him to enter Oregon's statutory DUII diversion program. Under that program, a defendant agrees to plead guilty or no contest to DUII and to participate in a drug and alcohol assessment and treatment program. ORS 813.200(4). If the court allows the petition, the court accepts the guilty or no-contest plea but withholds entry of a judgment of conviction pending completion of the terms of the diversion agreement. ORS 813.230. If the defendant fails to fulfill the diversion agreement, the court will terminate the diversion, enter the
guilty or no-contest plea, and sentence the defendant. ORS 813.255. However, the statutory scheme prohibits certain defendants from participating in diversion. As relevant to this case, ORS 813.215(1)(h) prohibits a person from participating in diversion if the person " hold[s] a [CDL] on the date of the commission of the offense."
A person must have a CDL, which in Oregon is issued by ODOT, to operate a commercial motor vehicle. See ORS 807.031. However, a driver also needs to have and carry a medical certificate to operate such a vehicle. See ORS 807.100. Those are separate requirements. See State v. Orueta, 343 Or. 118, 123, 164 P.3d 267 (2007). The authority that a CDL gives a person to operate a commercial vehicle does not depend on the person having a valid medical certificate. Id. (holding that defendant's CDL authorized him [271 Or.App. 269] to operate a commercial vehicle " even though the fact that he did not possess a medical certificate disabled him from exercising the authority the license granted" ).
The trial court held a hearing to determine whether defendant was eligible to enter diversion. The state argued that defendant was ineligible because ODOT had issued a CDL to him that had yet to expire, which, under ORS 813.215(1)(h), precluded him from entering diversion. Defendant testified that he had obtained a valid CDL in 1999 but had soon thereafter stopped using it to drive commercial vehicles. He testified that his medical certificate had expired soon after he had obtained his CDL, and he had not since had a medical certificate. Defendant posited that, because he did not have a medical certificate when he last renewed his CDL, the CDL that ODOT had issued to him was invalid. Consequently, he argued, he did not hold a CDL, and ORS 813.215(1)(h) did not prevent him from entering diversion.
The trial court denied defendant's diversion petition, concluding that, for purposes of ORS 813.215(1)(h), defendant held a CDL and therefore could not enter diversion. Defendant entered a conditional plea of guilty--reserving his right to appeal all issues raised by his diversion petition--and the court accepted the plea and entered a judgment of conviction for DUII. Defendant now appeals, and the parties reprise the arguments that they made to the trial court.
The question that we must resolve is whether a person " holds a [CDL]," as the term is used in ORS 813.215(1)(h), if ODOT renewed the person's CDL when the person did not have a valid medical certificate and, hence, was not eligible to renew his or her CDL. The Supreme Court addressed a similar question in Orueta. The state charged the defendant in Orueta with DUII, and the defendant applied for diversion. The state objected, asserting that the defendant had a CDL at the time of the offense and, therefore, could not enter diversion. The defendant argued that ORS 813.215(1)(h) did not preclude him from entering diversion because he " had no intent[ion] to drive a commercial vehicle." Orueta, 343 Or. at 121. The trial court agreed with the defendant and allowed him to enter diversion. The ...