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State v. Borders

Court of Appeals of Oregon

September 6, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
TYLER RYAN BORDERS, Defendant-Appellant.

          Submitted July 30, 2018

          Lincoln County Circuit Court 15CR26722 Paulette E. Sanders, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stacy M. Du Clos, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a judgment of conviction for driving while suspended, ORS 811.182, assigning error to the imposition of two special conditions of probation. A law enforcement officer stopped defendant while defendant was driving to work. There is no evidence that defendant was intoxicated at the time of the stop, but defendant's driver's license was suspended due to past convictions for driving under the influence of alcohol. After conviction, the court placed defendant on probation and imposed two special conditions of probation: that defendant "not use or possess alcoholic beverages" and that he attend a DUII victim's impact panel. Held: Under ORS 137.540(2), special conditions of probation must be (1) reasonably related to the crime of conviction or the needs of the defendant, and (2) imposed for the protection of the public or reformation of the offender or both. The challenged conditions were not reasonably related to the crime of conviction or the needs of the probationer and therefore exceeded the trial court's discretion under ORS 137.540(2).

          [293 Or.App. 792] AOYAGI, J.

         Defendant was convicted of driving while suspended, ORS 811.182, and placed on probation. The trial court imposed two special conditions of probation: (1) that defendant "not use or possess alcoholic beverages," and (2) that defendant attend a DUII victim's impact panel and pay an attendance fee of $20. Defendant challenges both conditions on appeal. Because we agree with defendant that the conditions do not satisfy the requirements of ORS 137.540(2), we remand for resentencing.

         The relevant facts are undisputed. Defendant's driver's license is suspended for his lifetime due to convictions for driving under the influence of intoxicants (DUII) in 2006, 2007, and 2014. A law enforcement officer stopped defendant in 2015 while defendant was driving to work. There is no evidence that defendant had any alcohol in his system at the time of the stop. As a result of the stop, defendant was convicted of driving while suspended, ORS 811.182, and placed on probation for 24 months. As relevant here, the court imposed two special conditions of probation. First, it required that defendant "not use or possess alcoholic beverages." The court explained that, although defendant was no longer on probation for DUII, "now you're back on probation and they're not going to let you have any alcohol. And because of your history underlying this, I'm not letting you have any alcohol either. That is not your friend." Second, the court required defendant to attend a victim impact panel and pay the $20 attendance fee. The court noted that defendant's prior probation record, from his 2014 DUII conviction, "says that you attended the victim's impact panel and that you never paid the $20. I am going to order-I'm going to have you attend another victim's impact panel." Defendant objected to both special conditions of probation. The court noted the objection, but then reiterated, "As I said, the big issue for this is, you know, you have the three prior Driving Under the Influence."

         Defendant appeals the judgment. In his first assignment of error, he challenges the imposition of the special condition regarding use or possession of alcohol. In his second assignment of error, he challenges the imposition of the [293 Or.App. 793] special condition regarding the DUII victim's impact panel. We review the imposition of probation conditions for errors of law. State v. Maack, 270 Or.App. 400, 401, 348 P.3d 265 (2015).

         ORS 137.540(2) gives the trial court discretion to impose any special conditions of probation "that are reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both." As a preliminary matter, we address the correct construction of that potentially confusing sentence. Prior to 1981, ORS 137.540 did not distinguish between general and special conditions of probation or contain any express limitations on the conditions that could be imposed. The courts recognized, however, that a probation condition "that is not related to the offense or does not promote public safety or rehabilitation" would violate proportionality requirements and therefore was not permitted. State v. Martin, 282 Or. 583, 588, 580 P.2d 536 (1978).

         In 1981, the legislature substantially revised ORS 137.540, including adding subsection (2):

"In addition to the general conditions, the court may impose special conditions of probation for the protection of the public or the reformation of the offender, or both, including but not limited to [twelve enumerated conditions]."

ORS 137.540(2) (1981), amended by Or Laws 1981, ch 671, § 1. Thus, after 1981, the statute expressly authorized special conditions "only 'for the protection of the public or reformation of the offender, or both.'" State v. ...


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