and submitted October 17, 2017, at Baker City High School.
review from the Court of Appeals. [*] (CC C142425CR) (CA
P. Seltzer, Deputy Public Defender, Offce of Public Defense
Services, Salem, argued the cause and fled the briefs for
petitioner on review. Also on the briefs was Ernest G.
Lannet, Chief Defender.
L. Smith, Deputy Solicitor General, Salem, argued the cause
and fled the brief for respondent on review. Also on the
brief were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Walters, Chief Justice, and Balmer, Kistler, Nakamoto, Flynn,
Duncan, and Nelson, Justices. [**]
Or. 265] Case Summary: Defendant was convicted of driving
under the influence of intoxicants (DUII) for the third time
in a 10-year period. Based on that third conviction, the
circuit court permanently revoked defendant's driving
privileges as required by ORS 809.235(1)(b), and the Court of
Appeals affirmed. However, defendant had proved that one of
the prior convictions had been obtained in violation of his
right to counsel under the Sixth Amendment of the United
States Constitution and Article I, section 11, of the Oregon
Constitution. Held: The circuit court correctly
relied on the uncounseled DUII conviction to permanently
revoke defendant's driving privileges. The revocation of
driving privileges is consistent with defendant's right
to counsel under Sixth Amendment jurisprudence because the
revocation constitutes a civil disability, not a criminal
punishment. Defendant's argument under Article I, section
11, of the Oregon Constitution was not sufficiently
developed, so the Court does not address it.
decision of the Court of Appeals and the judgment of the
circuit court are affirmed.
Or. 266] NAKAMOTO, J.
defendant has been convicted of driving under the influence
of intoxicants (DUII) three times in a 10-year period, the
third DUII offense becomes a felony. ORS 813.010(5). In this
case, defendant was charged with felony DUII based on his two
prior convictions in the preceding ten years, but he
successfully asserted a statutory challenge to one of them, a
Georgia conviction, because it had been obtained in violation
of his right to legal counsel. See ORS 813.328(1) (a
defendant may challenge "the validity of prior
convictions alleged by the state" as an element of
felony DUII). As a result, defendant was convicted of
misdemeanor rather than felony DUII. However, the trial court
counted the Georgia conviction when it permanently revoked
defendant's driving privileges. See ORS
809.235(1)(b) (court shall permanently revoke a
defendant's driving privileges when convicted for a third
time of DUII). The Court of Appeals affirmed without
opinion. State v. Hamann, 282 Or.App. 369, 385 P.3d
review, defendant reasserts that, once he proved that the
Georgia conviction was constitutionally invalid, the trial
court's imposition of any additional consequence on him
based on that conviction was inconsistent with his right to
counsel, as articulated in City of Pendleton v.
Standerfer, 297 Or. 725, 688 P.2d 68 (1984) (applying
Sixth Amendment right to counsel). We conclude that the trial
court correctly relied on the Georgia conviction to revoke
defendant's driving privileges as a civil disability-not
a criminal punishment-and that the revocation was consistent
with defendant's right to counsel under the Sixth
Amendment to the United States Constitution. Therefore, we
affirm the judgment of the trial court and the decision of
the Court of Appeals.
relevant facts are undisputed. Defendant drove while under
the influence of alcohol and was arrested. The [363 Or. 267]
state charged him with felony DUII because defendant had two
previous DUII convictions. See ORS 813.010(5) (a
person's third DUII within a 10-year period is a Class C
felony). Defendant had been convicted of DUII in Georgia in
2007, and then again in Clackamas County, Oregon in 2010.
trial, defendant moved to prohibit the use of the 2007
Georgia DUII conviction to aggravate the DUII from a
misdemeanor to a felony. During the hearing on that motion,
defendant testified that he had pleaded guilty to the Georgia
DUII, but that he did not have an attorney at the time of his
plea and was not advised about the benefits of having an
attorney or the risks of proceeding without one. He also
testified that, at the time of his arraignment in Georgia, he
did not know that he had a right to counsel.
hearing evidence about the Georgia proceeding, the trial
court in this case determined that the Georgia conviction
could not be used against defendant to aggravate the DUII
from a misdemeanor to a felony, noting that the record from
the Georgia case did not contain any indication that there
had been a valid waiver of the right to counsel. The court
proceeded with a stipulated facts trial and found defendant
guilty. Accordingly, the trial court convicted defendant of
misdemeanor DUII as a lesser-included offense.
sentencing, defendant moved to prohibit the use of the 2007
Georgia DUII conviction to permanently revoke his driving
privileges under ORS 809.235(1)(b). Defendant argued that the
court's determination that the Georgia conviction was
obtained in violation of Article I, section 11, of the Oregon
Constitution and the Sixth Amendment of the United States
Constitution meant that the Georgia conviction was invalid as
a matter of Oregon law and could not be used for any purpose.
The trial court disagreed and imposed a permanent revocation
of defendant's driving privileges.
appealed, arguing that Article I, section 11, and the Sixth
Amendment both prohibited the use of uncounseled prior
convictions to impose a less favorable disposition in a later
proceeding. The Court of Appeals affirmed without issuing a
Or. 268] ANALYSIS
review, defendant argues that the trial court's use of
the prior uncounseled DUII conviction to permanently revoke
his driving privileges as part of his criminal sentence
violated his right to counsel under Article I, section 11,
and the Sixth Amendment. For the reasons stated below, we
decide only the Sixth Amendment issue, and we begin with that
Sixth Amendment provides that," [i] n all criminal
prosecutions, the accused shall * * * have the Assistance of
Counsel for his [defense]." The Sixth Amendment requires
that a defendant in a criminal prosecution have the benefit
of counsel or that the defendant validly waive counsel.
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9
L.Ed.2d 799 (1963). The right to counsel also extends to plea
proceedings. Padilla v. Kentucky, 559 U.S. 356, 130
S.Ct. 1473, 176 L.Ed.2d 284 (2010). The parties have assumed,
as do we, that defendant's Georgia DUII conviction was
obtained in violation of defendant's Sixth Amendment
right to counsel.
years ago, the United States Supreme Court stated that the
Sixth Amendment prohibits the use of an uncounseled prior
conviction obtained in violation of the right to counsel to
"support guilt or enhance punishment for another
offense." Burgett v. Texas, 389 U.S. 109, 115,
88 S.Ct. 258, 19 L.Ed.2d 319 (1967); accord United States
v. Bryant, ___ US ___, 136 S.Ct. 1954, 1962,
195 L.Ed.2d 317 (2016) (quoting Burgett with
approval). Burgett involved an uncounseled state
felony conviction, which the Court held could not be used to
prove a prior-felony element of a state recidivist statute.
389 U.S. at 115.
since Burgett, the Supreme Court has held that
uncounseled convictions are not invalid for all purposes. In
Lewis v. United States, 445 U.S. 55, 65-67, 100
S.Ct. 915, 63 L.Ed.2d 198 (1980), the Court explained that
use of an uncounseled prior conviction to impose a later
consequence violates the Sixth Amendment if that later
consequence is a punishment enhancement, but the Sixth
Amendment is not violated if that later consequence is only a
civil disability. The Court held that an uncounseled prior
felony conviction [363 Or. 269] could be used to support the
defendant's misdemeanor conviction for violating the
prohibition on felons possessing firearms, when he was not
sentenced to any incarceration. Id. at 65-67. The
Court determined that an uncounseled prior conviction could
be used to enforce an "essentially civil disability
through a criminal sanction," because such a use would
not "'support guilt or enhance
punishment.'" Id. at 67 (quoting
Burgett, 389 U.S. at 115). Thus, whether the Sixth
Amendment prohibits the use of defendant's uncounseled
Georgia conviction to support the permanent revocation of
defendant's driving privileges under ORS 809.235 boils
down to whether the revocation of driving privileges is
essentially a "civil disability" as in
Lewis, which the state urges, or a punishment
enhancement as in Burgett, which defendant urges.
Supreme Court, however, has not stated a test to draw the
line between civil disability and punishment enhancement for
purposes of determining whether an uncounseled conviction can
be used to impose a particular consequence. The Court's
opinion in Lewis set out the distinction between
civil disabilities and criminal penalties, but gave little
indication as to how to differentiate between the two, aside
from the conclusory statement that enforcement of a civil
disability does not "support guilt or enhance
punishment." Lewis, 445 U.S. at 67 (quoting
Burgett, 389 U.S. at 115).
to make that determination in this case, we look beyond Sixth
Amendment right-to-counsel jurisprudence to see how that
distinction plays out in other contexts. The Double Jeopardy
Clause and Ex Post Facto Clause are particularly
useful because they require the same fundamental inquiry as
the Sixth Amendment issue at hand: whether a particular
consequence is a punishment. The Double Jeopardy Clause
requires a determination as to whether a particular
consequence is a criminal punishment because it prohibits
punishing a person twice for the same offense; however,
imposing a punitive sanction and a civil sanction for the
same offense is permitted. See Helvering v.
Mitchell,303 U.S. 391, 399-400, 58 S.Ct. 630, 82 L.Ed.
917 (1938) (stating rule). Thus, some cases involving the
[363 Or. 270] Double Jeopardy Clause analyze whether a
particular consequence is a criminal punishment or merely a
civil sanction. See id. at 399 (stating the issue as
"whether [a statute] imposes a criminal sanction").
Likewise, the Ex Post Facto Clause prohibits
retroactive punishment, so cases applying it may include
consideration of whether the consequence to be imposed is a
criminal punishment. See, e.g., ...