State v. Allen
| Decision Date | 01 August 1977 |
| Citation | 567 P.2d 552,30 Or.App. 275 |
| Parties | STATE of Oregon, Appellant, v. Luke ALLEN, Respondent. |
| Court | Oregon Court of Appeals |
Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for appellant. With him on the brief were James A. Redden, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for respondent. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Before SCHWAB, C. J., and THORNTON and LEE, J.
The state appeals from an order sustaining defendant's demurrer to an information for driving while suspended or revoked. ORS 487.560. 1 The issue presented is whether the information may properly contain an allegation that defendant's operator's license had been suspended as a result of a prior conviction for driving under the influence of intoxicants.
Count I of the information alleged:
"The said defendant, on or about December 3, 1976, in the County of Multnomah, State of Oregon, did unlawfully and with criminal negligence drive a motor vehicle upon a public street or highway during a period when the said defendant's license was suspended by the Motor Vehicles Division of the Department of Transportation as a result of a prior conviction for Driving Under the Influence of Intoxicants, to-wit: DRIVING UNDER THE INFLUENCE OF INTOXICATING LIQUOR, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."
The statutory sanction for driving while suspended is bifurcated. The crime of driving while suspended is a Class A misdemeanor unless the original suspension was the result of a conviction for any one of a series of serious traffic offenses, including driving while under the influence of intoxicants (DUII). If the suspension was for a serious traffic offense, the crime is a Class C felony. In this case defendant's license suspension arose out of a prior conviction for DUII.
Defendant demurred to the information on the ground that ORS 132.540(2) prohibits the allegation of a previous conviction. ORS 132.540(2) provides:
"The indictment shall not contain allegations that the defendant has previously been convicted of the violation of any statute which may subject him to enhanced penalties, except where the conviction constitutes a material element of the crime charged."
The demurrer was sustained.
The parties both below and on appeal have assumed that ORS 132.540(2) is the appropriate statute on which to base a demurrer in this case. As the accusatory instrument was an information and not an indictment, ORS 132.540(2) does not apply. The appropriate basis for demurrer is ORS 133.007(2), which provides:
"The information or complaint shall not contain allegations that the defendant has previously been convicted of any offense which might subject him to enhanced penalties."
Since the prohibitions against allegations of prior convictions in ORS 132.540(2) and 133.007(2) are substantially the same and serve identical purposes, we perceive no sound reason to reverse for this technical error.
At common law a prior conviction was regarded as a part of an indictment which must be established when the Crown sought to invoke an enhanced penalty for the crime charged. State v. Hoffman, 236 Or. 98, 385 P.2d 741 (1963). The prohibition against alleging a prior conviction is designed to avoid prejudice to defendant. State v. Waterhouse, 209 Or. 424, 307 P.2d 327 (1957); State v. Stevens, 11 Or.App. 303, 502 P.2d 612 (1972).
In State v. Stevens, supra, we held that the predecessor to ORS 132.540(2) required sustaining a demurrer to an indictment which alleged a prior conviction for a narcotic drug offense in order to charge a felony criminal activity in drugs on the second offense. The statutory scheme for criminal activity in drugs in Stevens, like the statutory scheme here, set up a two- tiered penalty system which enhanced the degree and potential penalty for the crime from Class A misdemeanor to Class B felony when the defendant had been previously convicted for any narcotic or drug offense. The predecessor to ORS 132.540(2) was similar to what is now ORS 133.007(2) except that it prohibited allegations of prior convictions in indictments and not informations. In Stevens we observed that
" * * * it is at the sentencing stage that the matter of previous convictions for narcotic or drug offenses should be raised and determined * * *." 11 Or.App. at 306, 502 P.2d at 613.
The state concedes that "(i)t might well be argued that State v. Stevens, supra, is dispositive of the issue," but points out that the failure to allege the prior conviction when a felony is charged raises a problem of notice to the defendant. Perhaps a statute like ORS 484.380(1) 2 would be the most straightforward way to accommodate both defendant's statutory right...
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...assaulting the same victim.1 Defendant insists that, under State v. Stevens, 11 Or.App. 303, 502 P.2d 612 (1972), and State v. Allen, 30 Or.App. 275, 567 P.2d 552 (1977), we are required to conclude that it is impermissible to include the allegation of his prior conviction. Defendant is mis......
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...suspended. ORS 487.560(6) 3 provides for enhancing the penalty from a Class A Misdemeanor to a Class C Felony. In State v. Allen, 30 Or.App. 275, 567 P.2d 552 (1977), we explained that ORS 487.560(6) merely enhances the penalty; it is not a separate crime. To avoid prejudice to the defendan......
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Pinto v. Superior Court In and For Cochise County, Division III
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...is irrelevant to whether a defendant committed the crime of DWS; the reason is only germane at sentencing. We so held in State v. Allen, Or.App., 567 P.2d 552 (1977). The specific question in Allen was whether an accusatory instrument charging felony DWS could allege the reason for the susp......