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State v. Rafeh

Supreme Court of Oregon

May 4, 2017

STATE OF OREGON, Respondent on Review,
v.
DOROTHY ELIZABETH RAFEH, aka Dorothy Elizabeth Barnett, Petitioner on Review.

          Argued and Submitted January 13, 2017

         On review from the Court of Appeals Argued and Submitted January 13, 2017.[*]

          John Evans, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

          Joanna L. Jenkins, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Balmer, Chief Justice, and Kistler, Walters, Landau, Brewer, Nakamoto, and Flynn, Justices. [**]

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

         Case Summary: At defendant's trial for driving while suspended (DWS), defendant argued that the federal Confrontation Clause prohibits the admission of an earlier certification that defendant had been given notice that the state intended to suspend her driver's license. The trial court admitted the certification over defendant's objection, and the jury found her guilty of DWS. The court of appeals affirmed the resulting judgment without opinion. Held: (1) to qualify as a testimonial statement under the federal Confrontation Clause, the statement must be made with the primary purpose of creating evidence for a criminal prosecution; (2) the primary purpose of the certification in this case was to confirm to DMV that the administrative hearing could go forward because defendant had received constitutionally required notice that her license was subject to suspension unless she requested an administrative hearing.

         The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

          KISTLER, J.

         In 2012, the Driver and Motor Vehicle Services Division (DMV) of the Department of Transportation suspended defendant's driver's license for three years for refusing to submit voluntarily to a blood alcohol test. Approximately two and one-half years later, defendant was stopped while driving without a license, and the state charged her with driving while suspended (DWS). See ORS 811.182 (defining that crime). The question that this case presents is whether the federal Confrontation Clause prohibits the admission, in defendant's DWS trial, of an earlier certification that defendant had been given notice that the state intended to suspend her driver's license.[1] The trial court admitted the certification over defendant's objection, and the jury found her guilty of DWS. The Court of Appeals summarily affirmed the resulting judgment. Having allowed defendant's petition for review, we now affirm the Court of Appeals decision and the trial court's judgment.

         Before turning to the facts of this case, we set out the statutory framework under which this issue arises. When an officer stops a person for driving under the influence of intoxicants, two consequences can flow from the stop. One is criminal; the other, civil. If the officer has probable cause to believe that the person has been driving under the influence of intoxicants (DUII), the officer can arrest the person for that offense and ask the person to take a breath or blood alcohol test. ORS 813.100(1). Depending on the results of those tests, the state may initiate a criminal prosecution for DUII. See ORS 813.010 (defining that crime).

         The other consequence is civil. Every person who operates a motor vehicle on the state highways impliedly consents to a breath or blood test to determine the person's blood alcohol content if the person is arrested for DUII. ORS 813.100(1). A person who is arrested for DUII can always refuse to take a breath or blood alcohol test. ORS 813.100(2). However, doing so can result in the person's driver's license being suspended administratively pursuant to ORS 813.410. ORS 813.100(3). That is true even if the person is not charged with or convicted of DUII. See ORS 813.130(2)(c) (stating that an administrative license suspension for refusing to take a breath or blood alcohol test is independent of a criminal charge for DUII).

         If a driver who is arrested for DUII refuses to take a breath or blood alcohol test, ORS 813.100(3) directs the officer to take immediate custody of the person's driver's license, "provide the person with a written notice of intent to suspend, on forms prepared and provided by the Department of Transportation, " and report to the department certain information set out in ORS 813.120. To comply with those statutory directives, the department has promulgated a form captioned the Implied Consent Combined Report. That report both provides notice to the driver that DMV intends to suspend his or her driving privileges and also sets out preprinted information, required by ORS 813.120, that establishes the statutory prerequisites for suspending a person's driver's license.[2]

         Sending a copy of the report to the Department of Transportation initiates an administrative suspension of the person's driver's license. ORS 813.410(1). Once the department receives the report, ORS 813.410(1) directs the department to suspend the person's driver's license "on the 30th day after the date of arrest * * * unless, at a hearing described under this section, the department determines that the suspension would not be valid as described in this section." Id. The report provides that, "[i]f no hearing is requested, the allegations contained in this document will be accepted as fact" and that the report will serve as the administrative order suspending the person's driver's license.

         With that statutory background in mind, we turn to the facts of this case. On September 8, 2012, defendant was involved in a serious car accident and taken to the hospital. She refused to consent to a voluntary blood draw. After she refused consent, Deputy Cereghino with the Marion County Sheriff's Office filled out and signed the Implied Consent Combined Report. The report lists the date of defendant's arrest as September 8, 2012. It states that her driver's license will be suspended "at 12:01 a.m. on the 30th day after the date of arrest * * * for the period of time and for the reason indicated below." Below that statement, two boxes are checked. The first checked box states that defendant "refused to submit to a blood test when receiving medical care in a health facility immediately after a motor vehicle accident." See ORS 813.100(1) (stating that a person in those circumstances impliedly consents to a voluntary blood draw). The second checked box states that, as a result of her refusal, the period of suspension is for three years. The form states that "[y]ou were given a copy of this form * * * as written notice." The reverse side of the form lists a driver's rights and responsibilities. Among other things, it describes how a person can request an administrative hearing to challenge the suspension of the person's driver's license; it also specifies the time in which the request for a hearing must be filed, the contents that the request should include, and the address of the agency (DMV) where the request should be sent.

         Defendant did not request a hearing, and DMV suspended her license on October 8, 2012. Less than three years later, another officer stopped defendant in Multnomah County for a traffic violation. When he asked to see her driver's license, defendant produced an identity card but no license. The officer checked defendant's driving status, learned that her ...


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