Frasier v. DMV

• Decision Date: 31 January 2001
• Citation: 172 Or. App. 215,17 P.3d 582
• Parties: Benjamin Caleb FRASIER, Petitioner, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Respondent.
• Court: Oregon Court of Appeals

17 P.3d 582

172 Or. App. 215

Benjamin Caleb FRASIER, Petitioner, v. DRIVER AND MOTOR VEHICLE SERVICES BRANCH (DMV), Respondent.

(78205; CA A107147)

Court of Appeals of Oregon.

Argued and Submitted July 6, 2000.

Decided January 31, 2001.

R. Paul Frasier argued the cause and filed the brief for petitioner.

David John Amesbury, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before EDMONDS, Presiding Judge, and ARMSTRONG and KISTLER, Judges.

EDMONDS, P.J.

Petitioner seeks review of an order of the Driver and Motor Vehicle Services Branch (DMV) suspending his driving privileges for one year. ORS 809.410(15). DMV found that petitioner caused or contributed to an accident resulting in the death of two passengers riding in his vehicle, by reason of his unlawful operation of his vehicle in failing to drive within a single lane of travel. ORS 811.370. He raises multiple assignments of error. We reverse and remand.

At dusk, on February 15, 1999, petitioner, age 16, was driving a car on Highway 42 in Coos County. His girlfriend was in the front seat, and his older brother was in the back seat. Petitioner was driving at approximately 55 miles per hour. It was raining heavily, and there was standing water on the roadway. The road was a clearly marked two-lane highway in good repair. After negotiating one turn, petitioner's car failed to negotiate a second turn, left the roadway, scraped a tree in the median and collided with another tree in the median. Both petitioner and the front-seat passenger were wearing safety restraints. The back-seat passenger was not wearing a restraint and may have been lying down in the seat when the accident occurred. Both passengers died soon after the accident. Petitioner was also injured but survived. He submitted to drug and alcohol testing which indicated that he was not under the influence of any intoxicating substances at the time of the accident. He told an investigating officer shortly after the accident that he thought that his vehicle had hydroplaned, but he stated later to another officer that he was tired but not sleepy and might have either hydroplaned or fallen asleep. Petitioner does not have any recollection of the accident itself. An investigation at the accident scene established that petitioner did not take any corrective steering or braking action after his car left the roadway.

Two months after the accident, DMV notified petitioner that his driving privileges would be suspended for one year, beginning one month after the date of notification. Petitioner requested a hearing on the suspension, and the suspension was stayed pending the outcome of the hearing. At the hearing, the administrative law judge (ALJ) admitted into the record an Oregon State Police incident report, a copy of petitioner's driving record, testimony from the investigating officer and testimony from petitioner's father, who drove the same road on which the accident occurred on the same evening as the accident, and who testified that it was raining heavily at the time of the accident. Also, an affidavit was before the ALJ from the chief deputy district attorney for Coos County, which stated that he had concluded that petitioner had not violated any provision of the motor vehicle code and that no criminal charges or traffic citations would be filed against petitioner.

The ALJ upheld the suspension of petitioner's license, ruling that petitioner had violated ORS 811.370(1). DMV once again suspended petitioner's driving privileges. Petitioner seeks reversal of DMV's order of suspension. Because his second and third assignments of error are dispositive, we reach only those two assignments. Petitioner's second assignment of error is that "DMV erred when it concluded that the Petitioner caused or contributed to the accident in question." His third assignment is that "DMV erred when it concluded that the Petitioner caused or contributed to the accident in question through the unlawful operation of a vehicle." As we understand them, petitioner's arguments under those assignments of error are that the order is based on a flawed interpretation of ORS 811.370(1) and that the ALJ failed to make findings of fact that supported his conclusion. Specifically, petitioner takes issue with the ALJ's statement that "[t]he very fact that the vehicle left the road establishes, prima facie, a violation of the statute." He argues that forces unrelated to his driving conduct caused his car to leave his lane of travel and that he, therefore, did not violate the statute. He asserts that because the ALJ did not make a finding about the cause of his leaving his lane of travel, the order is defective. Petitioner also argues that "DMV had the burden of proving that in fact petitioner caused or contributed to this accident."

DMV responds that the ALJ correctly interpreted the statute and that petitioner violated ORS 809.410(15), whether his failure to maintain a single lane was because he fell asleep, he was traveling too fast and lost control, he hydroplaned, or simply because he failed to keep his car within a single lane of travel. DMV concludes that there is substantial evidence to support the ALJ's finding that petitioner's vehicle left its lane in violation of ORS 811.370(1),¹ which in turn justifies a suspension under ORS 809.410(15).

The first step toward resolution of petitioner's arguments involves the interpretation of ORS 811.370(1). In interpreting a statute, we turn first to the text and context of the provision itself. PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993). The text of ORS 811.370(1) places two distinct requirements on a driver. Under section (1)(a), drivers must "operate the vehicle as nearly as practicable within a single lane." Under section (1)(b), the driver must "refrain" from leaving the driver's lane of travel once within it, unless it is safe to do so. DMV has the burden of proving a driver's failure to comply with those statutory requirements.²

We interpret ORS 811.370(1) in accordance with the ordinary meaning of its words. "Practicable" means "possible to practice or perform," "capable of being put into practice, done or accomplished," or "feasible." Webster's Third New Int'l Dictionary, 1780 (unabridged ed 1993). To "refrain," in its common parlance and in its dictionary definition, requires "holding back," "putting a restraint upon," or "checking or inhibiting an inclination or impulse." It means "to keep oneself from doing, feeling, or indulging in something." Id. at 1909. "To refrain" is an act of the will. Thus, under subsection (1)(b), to establish that a driver did not "refrain" from moving from the lane until it was safe to do so, DMV must show that a driver was capable of staying in his or her lane of travel. When read in context, the words "practicable" and "refrain" demonstrate that the legislature intended that the statute would not be violated unless the driver did not stay within the lane because of an act or omission that was within his control.

In that light, we turn to DMV's order. ORS 183.470(2) requires that a final order in a contested case contain findings of fact and conclusions of law. It may be necessary to remand a case if the requisite findings or conclusions are missing from an order. Albertson's, Inc. v. Bureau of Labor and Industries, 128 Or.App. 97, 101, 874 P.2d 1352 (1994). The ALJ found that: (1) that the road...