and Submitted June 6, 2019
review from the Court of Appeals, (CC 15CR52393), (CA
A164152), (CC 16CR33772), (CA A163979). [*]
Krohn, Deputy Public Defender, Office of Public Defense
Services, Salem, argued the cause and fled the briefs for
petitioners on review. Also on the briefs was Ernest G.
Lannet, Chief Defender.
M. Wilsey, Assistant Attorney General, Salem, argued the
cause and fled the briefs for respondent on review. Also on
the briefs were Ellen F. Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Or. 19] In State v. Guzman, S066328, the decision of
the Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit
court for further proceedings. In State v. Heckler,
S066373, the decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case
is remanded to the circuit court for further proceedings.
unsuccessfully moved to exclude certain prior convictions,
arguing that those convictions were not "statutory
counterparts" to ORS 813.010 that could raise the
seriousness of their present driving under the influence of
intoxicants offense under ORS 813.011. The Court of Appeals
affirmed in both cases. Held: (1) For a foreign
conviction to be a statutory counterpart to ORS 813.010 for
the purposes of ORS 813.011 the conviction must be for an
offense with elements that closely match those of ORS
813.010; (2) defendant Guzman's Kansas conviction was not
under a statutory counterpart to ORS 813.010; (3) defendant
Heckler's Colorado convictions were not under a statutory
counterpart to ORS 813.010.
Or. 20]NELSON, J.
consolidated cases concern two defendants who were convicted
of driving under the influence of intoxicants (DUII), a crime
that is ordinarily a misdemeanor but that, in each case, was
elevated to a felony based on the defendant's two prior
convictions from other jurisdictions. See ORS
813.011 (DUII is a Class C felony if the person has been
convicted at least two times in the past ten years of DUII in
violation of ORS 813.010 or its statutory counterpart in
another jurisdiction). The question before us is whether the
foreign laws under which defendants were convicted are
"statutory counterparts" to ORS 813.010, the
statute criminalizing DUII in Oregon. After analyzing the
relevant statutes, we conclude that the appropriate inquiry
requires "close element matching," State v.
Carlton, 361 Or. 29, 42, 388 P.3d 1093 (2017), between
ORS 813.010 and the foreign offense, an approach that we have
previously employed in giving legal effect to convictions
from other jurisdictions. Applying that standard to
defendants' foreign convictions, we conclude that none of
the convictions at issue in this case were under a statutory
counterpart to ORS 813.010.
State v. Guzman
Guzman was charged by indictment with felony DUII and other
crimes. With respect to the DUII charge, the indictment
alleged that Guzman had two prior convictions for DUII from
other jurisdictions, including a 2015 Kansas conviction.
Guzman moved to exclude the Kansas conviction, contending
that it was not a "statutory counterpart" to ORS
813.010 and therefore could not be a basis for treating his
Oregon offense as a felony.
argued that the statute under which he had been convicted,
Kan.Stat Ann § 8-1567(a), was broader than ORS 813.010
in two respects: it applied to "attempting to operate
any vehicle" and it allowed conviction based on a blood
alcohol concentration of .08 "as measured within three
hours of the time of operating or attempting to operate a
vehicle." Both, he argued, made Kan.Stat Ann §
8-1567(a) meaningfully broader than ORS 813.010, with the
result [366 Or. 21] that it could not be a statutory
counterpart. The state argued, relying on State v.
Mersman, 216 Or.App. 194, 172 P.3d 654 (2007), rev
den, 344 Or. 390 (2008), that those differences in
statutory elements did not matter, because Kan.Stat Ann
§ 8-1567(a) shared a "use, role, or
characteristics" with ORS 813.010.
trial court denied Guzman's motion and ruled that the
Kansas conviction was admissible to prove that defendant had
two prior convictions for DUII or a statutory counterpart in
another jurisdiction. Guzman was tried by a jury. At trial,
the state introduced records of Guzman's foreign
convictions, including his Kansas conviction, as exhibits,
and the jury found him guilty of felony DUII based on those
appealed, assigning error to the trial court's denial of
his motion to exclude the Kansas conviction. He argued that
Mersman, and subsequent Court of Appeals cases, had
been overruled by this court's decision in
Carlton, 361 Or. 29, which had been decided after
Guzman's trial. In light of Carlton, Guzman
argued, the term "statutory counterpart" in ORS
813.011 applied only to foreign offenses virtually identical
to ORS 813.010.
Court of Appeals disagreed, stating without explanation that
Carlton did not overrule Mersman and
concluding that Guzman's Kansas conviction was properly
considered a conviction under a statutory counterpart.
State v. Guzman, 294 Or.App. 552, 432 P.3d 387
petitioned for review, which we allowed.
State v. Heckler
Heckler was charged by indictment with felony DUII and
reckless driving. With respect to the DUII offense, the
indictment alleged that he had previously been
"convicted of driving while under the influence of
intoxicants in violation of the laws of this state or another
jurisdiction at least two times in the ten years prior to the
date [366 Or. 22] of the current offense." The
indictment listed two separate Colorado convictions, which
occurred in 2006 and 2010.
to trial, Heckler moved to exclude both prior convictions. He
noted that both convictions had been for violations of Colo
Rev Stat § 42-4-1301(1)(b), which defines the offense of
"driving while ability impaired." That offense, he
argued, was a lesser included offense of Colorado's
principal offense of "driving under the influence,"
Colo Rev Stat § 42-4-1301(1)(a), and was therefore not a
"statutory counterpart" to ORS 813.010. Relying on
Mersman, the state responded by arguing that the
Colorado offense had the same "use, role, or
characteristics" as ORS 813.010 and was therefore a
statutory counterpart. The trial court ruled for the state
and did not exclude the convictions.
entered a conditional no contest plea to felony DUII,
reserving his right to challenge the trial court's
pretrial ruling on appeal. See ORS 135.335(3)
(authorizing conditional pleas). After the trial court
entered a judgment of conviction based on that guilty plea,
Heckler appealed, assigning error to the denial of his motion
and arguing that neither of his Colorado convictions involved
a violation of a "statutory counterpart" to ORS
813.010. The Court of Appeals affirmed, relying on its
decisions in State v. Donovan, 243 Or.App. 187, 256
P.3d 196 (2011), and Mersman. State v. Heckler, 294
Or.App. 142, 430 P.3d 224 (2018).
petitioned for review, which we allowed.
case turns on the meaning of the term "statutory
counterpart" in ORS 813.011, a statute enacted by the
voters through a ballot measure approved in 2010. In
pertinent part, that statute provides that the crime of DUII
will be a felony "if the defendant has been convicted of
driving under the influence of intoxicants in violation of
ORS 813.010, or its statutory counterpart in another
jurisdiction, at least two times in the 10 years prior to the
date of the current offense." ORS 813.011(1). The
parties approach that interpretive question differently.
Defendants' primary argument is that "statutory
counterpart" should be read narrowly, to include only
foreign offenses with elements [366 Or. 23] the same or
nearly the same as ORS 813.010. Defendants argue that the
text and context of ORS 813.011 support that reading. They
also rely on Carlton, where we addressed the meaning
of "statutory counterpart" in several statutes-
although not ORS 813.011-in the course of interpreting the
term "comparable offenses." Defendants argue that
Carlton, as precedent of this court construing the
term "statutory counterpart," should guide, if not
govern, our interpretation of "statutory
counterpart" in ORS 813.011. Defendants also argue that
a narrow interpretation of ORS 813.011 is required in order
to avoid two constitutional problems: a violation of
principles of nondelegation and a potential conflict with the
Supreme Court's decision in Apprendi v. New
Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435
state, by contrast, focuses on a single piece of context. The
state argues that, when ORS 813.011 was enacted in 2010, two
decisions of the Court of Appeals-Mersman and
State v. Rawleigh, 222 Or.App. 121, 192 P.3d 292
(2008)-had interpreted the term "statutory
counterpart" to include foreign offenses with the same
"use, role, or characteristics" as ORS 813.010 and
that those decisions had not required close element matching.
The state argues that the voters who enacted ORS 813.011
would have had their understanding informed primarily by that
approach this case using our ordinary interpretive
methodology. See State v. Gaines, 346 Or. 160, 206
P.3d 1042 (2009); Burke v. DLCD, 352 Or. 428,
432-33, 290 P.3d 790 (2012) (applying that methodology to a
law enacted by the people). Although it is neither
party's focus, we begin our analysis by examining the
text of ORS 813.011. We then turn to Carlton.
Although we agree with defendants that Carlton is
relevant precedent concerning the meaning of the term
"statutory counterpart," we conclude that it does
not control the construction of ORS 813.011. Finally, we turn
to the Court of Appeals decisions that the state relies on
and to defendants' constitutional arguments.
"Driving under the influence of intoxicants under ORS
813.010 shall be a Class C felony if the defendant has been
[366 Or. 24] convicted of driving under the influence of
intoxicants in violation of ORS 813.010, or its statutory
counterpart in another jurisdiction, at least two times in
the 10 years prior to the date of the current offense."
first important term in that text is "convicted
of." That phrase immediately and substantially limits
the inquiry created by ORS 813.011(1). The relevant question
is not whether the defendant has, in fact, driven under the
influence of intoxicants; what matters is whether that
conduct formed the basis for a conviction.
next key phrase is "driving under the influence of
intoxicants," which specifies the particular conduct of
which the defendant must have been convicted. Relevant
context for that phrase comes from ORS 813.010(1), which
"A person commits the offense of driving while under the
influence of intoxicants if the person drives a vehicle while
"(a) Has 0.08 percent or more by weight of alcohol in
the blood of the person as shown by chemical analysis of the
breath or blood of the person made under ORS 813.100, 813.140
"(b) Is under the influence of intoxicating liquor,
cannabis, a controlled substance or an inhalant; or
"(c) Is under the influence of any combination of
intoxicating liquor, cannabis, a controlled substance and an
light of that context, "driving under the influence of
intoxicants" could be read to refer to the precise
elements of ORS 813.010. But more immediate context suggests
otherwise: ORS 813.011(1) refers to convictions for
"driving under the influence of intoxicants in violation
of ORS 813.010, or its statutory counterpart in
another jurisdiction." (Emphasis added.) That indicates
that "driving under the influence of intoxicants"
should not necessarily be read to be coextensive with ORS
813.010, at least to the extent that the term "statutory
counterpart" includes offenses that are not identical to
brings us to the term "statutory counterpart." Only
one of the senses of "counterpart" set out in
Webster's [366 Or. 25] Third New Int'l
Dictionary 520 (unabridged ed 2002) seems relevant here:
"3 a: one remarkably similar to another: a person or
thing so like another that it seems a duplicate *** b:
equivalent: something or someone having the same use, role,
or characteristics often in a different sphere or
The listed subsenses have the same core of meaning-a high
degree of similarity. The range from "remarkabl[e]"
similarity to "so like another that it seems a
duplicate" to "same *** characteristics" is
not great. Any ambiguity in the phrase "statutory
counterpart" does not arise from uncertainty about how
similar to ORS 813.010 a foreign offense must be to qualify
as a statutory counterpart- it must be very similar-but from
uncertainty about the respects in which it must be similar.
context, however, that ambiguity is easily resolved. The
phrase "statutory counterpart" refers to a law
under which the defendant was "convicted of driving
under the influence of intoxicants." ORS 813.011. As a
result, a "statutory counterpart" to ORS 813.010
must, like ORS 813.010 itself, be an offense that includes
the elements of "driving under the influence of
intoxicants." It follows that the relevant similarity
between ORS 813.010 and its statutory counterparts is that
they have those elements in common-not that they share some
other "characteristics," "use," or
State v. Carlton
to Carlton, a decision where we discussed other uses
of the term "statutory counterpart," along with
various similar terms throughout our laws. Defendants argue
that this court construed "statutory counterpart"
in Carlton to require close element matching and
that we should adhere to that holding here. They argue that,
even if Carlton is not read that expansively, it at
least established a presumption that "statutory
counterpart" should be read narrowly, in the absence of
context indicating otherwise. The state argues that our
discussion of "statutory counterpart" in
Carlton was dicta and that, in any event,
Carlton does not preclude the argument that it makes
in this case.
Or. 26] In Carlton, we construed ORS 137.719, a
statute providing for presumptive life sentences for
defendants who had previously been sentenced two or more
times for felony sex offenses, including "[s]entences
imposed by any other state or federal court for comparable
offenses." ORS 137.719(3)(b)(B). The defendant in
Carlton had three prior convictions under California
Penal Code § 288(a), which defines an offense that
"may be proved by any touching of a child, even
outwardly innocent touching, if the touch is sexually
motivated." Carlton, 361 Or at 44.
with the term "comparable offenses," we consulted
the dictionary definition of "comparable,"
"the word 'comparable' has two primary senses.
Using the first sense, that word could refer to a degree of
similarity that makes comparison appropriate based on the
commonality of salient features of the things being compared
(meaning that they are alike in substance or essentials).
Alternatively, using the second sense, the word could