Brown v. Multnomah County Dist. Court

Citation570 P.2d 52,280 Or. 95
PartiesHugh Duffy BROWN, Petitioner, v. MULTNOMAH COUNTY DISTRICT COURT, and Anthony L. Casciato, Presiding Judge, Respondents.
Decision Date12 October 1977
CourtSupreme Court of Oregon

Presiding Judge, Respondents.

Supreme Court of Oregon, In Banc.

Argued and Submitted Sept. 9, 1977.

Decided Oct. 12, 1977.

[280 Or. 96-B] Elden M. Rosenthal, ACLU Cooperating Atty., Portland, argued the cause and filed a brief for petitioner.

Al J. Laue, Sol. Gen., Salem, argued the cause for respondents. On the brief were W. Michael Gillette (former Sol. Gen.), and James A. Redden, Atty. Gen.

J. P. Graff, of Gildea & McGavic, P. C., Eugene, filed a brief for Oregon Trial Lawyers Ass'n as amicus curiae.

Gary D. Babcock, Public Defender, and Robert C. Cannon, Deputy Public Defender, Salem, filed a brief for the Office of the State Public Defender as amicus curiae.

LINDE, Justice.

In the course of revising the Oregon Vehicle Code in 1975 (Or.L.1975, ch. 451) the legislative assembly placed the first offense of driving a motor vehicle under the influence of intoxicants (DUII) into a statutory category of "traffic infractions" as distinguished from "traffic crimes." ORS 484.365. The question before us is whether, in the light of the entire statutory scheme, this offense may be tried without the constitutional safeguards guaranteed defendants in criminal prosecutions.

Charged in district court with a first offense DUII, petitioner moved for an order appointing counsel for him as an indigent, granting him trial by jury, and requiring the state to prove its case beyond a reasonable doubt. These rights are expressly excluded in the trial of traffic infractions under the code, ORS 484.390(1), ORS 484.375(1), (2), and the district court denied all three demands. On writ of review the circuit court concluded that driving under the influence of intoxicants, even as a first offense, retains sufficient characteristics of a criminal charge to require compliance with the constitutional guarantees and ordered the district court to conduct petitioner's trial accordingly.

The Court of Appeals reached the contrary conclusion and reversed the order, 29 Or.App. 917, 566 P.2d 522 (1977). We granted review to resolve the important constitutional questions involved. The case has been thoroughly briefed by the parties and amici curiae, and we have the benefit of the able opinion of the Court of Appeals. Whether the legislature effectively carried out its purpose to "decriminalize" the first offense of driving under the influence of intoxicants is a close question. For the reasons that follow, we arrive at a different assessment from that of the Court of Appeals and accordingly reverse.

I

Of the three constitutional rights invoked by petitioner, two the right to counsel and to a jury trial are guaranteed specifically in "criminal prosecutions." Section 11 of Oregon's Bill of Rights, Or.Const. art. I, § 11, provides:

In all criminal prosecutions, the accused shall have the right to public trial by an impartial jury in the county in which the offense shall have been committed; to be heard by himself and counsel; to demand the nature and cause of the accusation against him, and to have a copy thereof; to meet the witnesses face to face, and to have compulsory process for obtaining witnesses in his favor; provided, however, that any accused person, in other than capital cases, and with the consent of the trial judge, may elect to waive trial by jury and consent to be tried by the judge of the court alone, such election to be in writing; . . . 1

The Court of Appeals concluded, upon reviewing our prior cases and the records of the Indiana constitution from which article 1, § 11 was taken, that the right to a jury trial extends to all offenses if they have the character of criminal prosecutions. 2 29 Or.App. at 924, and note 5, 566 P.2d at 526. We agree. The same is true of the right to be heard by counsel, although the right to appointed counsel at public expense requires separate discussion.

The third guarantee proof beyond a reasonable doubt is not expressed in the constitution, though it may well be implicit in the concept of a "criminal prosecution" as understood when the constitution was adopted in 1859. It has been statutory law in Oregon from 1864 (L.1864; Deady Crim. Code § 203) to the present, see ORS 17.250(5), 136.415, and we may reasonably infer from the legislature's unchanged adherence to this standard of proof for traffic "crimes" that the legislature would expect it to continue to govern a trial of an offense as long as it remains a "criminal prosecution." In any event, this safeguard is required by due process under the federal 14th amendment not only in criminal prosecutions but in other proceedings of similar character. In re Winship, 397 U.S. 358, 90 S.Ct. 1068, 25 L.Ed.2d 368 (1970) (juvenile court determination of delinquency).

[4,5] More than these three procedural rights hinges on the characterization of a traffic offense as a "crime" or an "infraction." The Bill of Rights also guarantees a defendant in a criminal case the right to a written accusation, to trial in the county where the offense was committed, to confront the witnesses against him in open court, and to subpoena witnesses. Art. I, § 11, supra. 3 It protects him against double jeopardy and against being compelled to testify against himself. Art. I, § 12. The prohibition against ex post facto laws, art. I, § 21, refers to criminal laws. Fisher v. City of Astoria, 126 Or. 268, 269 P. 853, 60 A.L.R. 260 (1928); In re Idleman's Commitment, 146 Or. 13, 27 P.2d 305 (1934); cf. Calder v. Bull,3 U.S. (3 Dall.) 386, 1 L.Ed. 648 (1798). 4 Of these guarantees, the statute also expressly withdraws the protection against double jeopardy from "traffic infractions," ORS 484.395, and, if the state's argument in this court is accepted, it leaves the other rights within the future discretion of the legislature. Considering that some of these entered the state and federal constitutions as a result of "Abuses and Usurpations" charged against George III in the Declaration of Independence, 5 the question whether the distinction between "criminal prosecutions" and "infractions" is itself wholly in the discretion of the legislature has notable importance.

II

It is beyond dispute that the legislature may define and enforce obligatory conduct by means other than the criminal law, as it does in taxation, or injunctive orders, or in creating private remedies, which may extend beyond compensatory damages. It may employ licenses in effect, exemptions from a prohibition conditioned upon prescribed qualifications and upon adherence to prescribed standards of conduct. It may take custody of persons in involuntary commitment or juvenile proceedings. Since the state has plenary power to devise its laws limited only by the state and federal constitutions, 6 School Dist. No. 12 v. Wasco County, 270 Or. 622, 627, 529 P.2d 386 (1974); Wright v. Blue Mt. Hospital Dist., 214 Or. 141, 145, 328 P.2d 314 (1958) and cases there cited, it may decide to repeal criminal prohibitions, to define civil obligations enforceable by the state and its agencies, and to replace one with the other, so long as constitutional limits are observed.

The Oregon Vehicle Code represents a systematic effort to match legal sanctions and procedures with the types of conduct to be regulated. In some respects it is a hybrid of elements drawn from civil, criminal, and administrative law models. 7 It treats fines, forfeitures, and loss of licenses as "civil penalties," to be imposed for "traffic infractions" either by administrative acceptance of voluntary payment, ORS 484.310 484.320, or by a court upon a trial without a jury and upon proof "by a preponderance of the evidence," the standard used in civil cases. ORS 484.375. It authorizes the judge to suspend a driver's license for non-payment of a fine. ORS 484.415. It allows appeals by the prosecution as well as the defendant. ORS 484.405. It treats as crimes, triable by criminal procedure, all "major," ORS 484.010(5), or "serious," ORS 487.530 et seq., traffic offenses other than DUII. ORS 484.365. But it extends many of the typically criminal procedures of arrest, detention, release on bail or recognizance, and plea to traffic infractions as well as to traffic crimes. ORS 484.100 484.140, 484.350; cf. also ORS 484.435. On the other hand, it excludes infractions as a basis of legal disabilities or disadvantages attached to convictions of crime, ORS 484.350, including impeachment as a witness, ORS 484.400. As we have said, the use of these diverse elements in devising a system of traffic laws is within the state's discretion unless it departs from a constitutional standard, in this case primarily the standards prescribed by article I, § 11.

III

There is no easy test for when the imposition of a sanction is a "criminal prosecution" within the meaning of the constitutional guarantees. The starting point, of course, is the law under which the sanction is imposed. When the legislature has defined conduct as a criminal offense, it is a criminal offense for constitutional purposes even if the same consequences could have been attached to the same conduct by civil or administrative proceedings. But it does not follow that a law can avoid this result simply by avoiding the term "criminal" in defining the conduct to be penalized. Constitutional guarantees have more substance than that.

A number of indicia have been used to determine whether an ostensibly civil penalty proceeding remains a "criminal prosecution" for constitutional purposes. See Charney, The Need for Constitutional Protections for Defendants in Civil Penalty Cases, 59 Corn.L.Rev. 478 (1974), Clark, Civil and Criminal Penalties and Forfeitures: A Framework for Constitutional Analysis, 60 Minn.L.Rev. 379 (1976). All are relevant, but none is conclusive on what we believe is the ultimate determination.

A. Type of offense. On the whole, it is not very helpful to refer to...

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