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State v. Werner

Court of Appeals of Oregon

June 13, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL WERNER, aka Michael Joseph Werner, Defendant-Appellant.

          Submitted December 18, 2017

          Multnomah County Circuit Court 16CR08563; Stephen K. Bushong, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erin J. Snyder Severe, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals a judgment convicting him of felony driving under the influence of intoxicants (DUII) under ORS 813.011(1). He assigns error to the trial court's denial of his motion in limine to exclude evidence of a prior 2015 DUII conviction that resulted from a 2005 driving incident. Under that statute, which was enacted by the voters through a ballot measure, DUII becomes a Class C felony if the defendant has been convicted of DUII at least two times in the 10 years prior to the date of the current offense. Defendant contends that the date of the commission of the prior offense is the relevant date for determining if there has been a predicate offense within the prior 10 years, not the date of conviction. Held: The trial court did not err when it denied defendant's motion to exclude evidence of his 2015 DUII conviction. The text and legislative history of ORS 813.011(1) demonstrate that the prior conviction date, not the commission date, is the pertinent date for determining whether a prior DUII conviction can serve as a predicate conviction under that statute.

         Affirmed.

         [292 Or.App. 398]SHORR, J.

         Defendant appeals a judgment convicting him of felony driving under the influence of intoxicants (DUII), ORS 813.011, as well as other crimes. Under ORS 813.011(1), DUII becomes a Class C felony if the defendant has been convicted of DUII at least two times in the 10 years prior to the date of the current offense. On appeal, defendant assigns error to the trial court's denial of his motion in limine to exclude evidence of his prior 2015 DUII conviction that resulted from a 2005 driving incident. Defendant contends that, under ORS 813.011(1), the date of the commission of the prior offense is the relevant date for determining if there has been a predicate offense within the prior 10 years, not the date of the conviction. We disagree and, for the reasons discussed below, conclude that the trial court did not err when it denied defendant's motion. Accordingly, we affirm.

         The relevant facts in this case are procedural and undisputed. The state charged defendant with felony DUII pursuant to ORS 813.011 because defendant had two prior DUII convictions within 10 years of the current offense, which occurred on February 14, 2016. Before trial, defendant moved in limine to exclude from evidence a 2015 DUII conviction that resulted from a 2005 driving incident.[1]Defendant argued that ORS 813.011(1) prohibits the use of the 2015 DUII conviction as a predicate conviction because it arose from conduct that was committed in 2005, more than 10 years prior to the current offense. The trial court denied defendant's motion and admitted the evidence of the prior conviction. Defendant entered a conditional guilty plea to all charges, reserving the right to appeal the court's denial of his motion in limine.

         On appeal, defendant reiterates the argument that he made to the trial court. In response, the state contends that the text and context of ORS 813.011(1) support the trial court's conclusion that the 2015 conviction can serve as a predicate conviction under ORS 813.011, even though it [292 Or.App. 399] arose from conduct that occurred in 2005, because it is the date of conviction of the prior offense that controls. Thus, in the state's view, the trial court correctly denied defendant's motion in limine.

         We review a trial court's construction of a statute for legal error. State v. Olive,259 Or.App. 104, 107, 312 P.3d 588 (2013). Because this case concerns ORS 813.011(1), which was initiated and enacted directly by the voters through a ballot measure, our task is to determine the voters' intention in enacting the law by using the approach outlined in PGE v. Bureau of Labor and Industries,317 Or. 606, 610-12, 859 P.2d 1143 (1993), as later modified by State v. Gaines,346 Or. 160, 171-72, 206 P.3d 1042 (2009). See State v. Guzek,322 Or. 245, 265, 906 P.2d 272 (1995) (holding that, in interpreting a statute enacted by initiative, the ...


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