State v. Caswell, 78-38195

• Decision Date: 31 August 1981
• Docket Number: No. 78-38195,78-38195
• Citation: 53 Or.App. 693,633 P.2d 24
• Parties: STATE of Oregon, Respondent, v. Todd CASWELL, Appellant. ; CA 18200.
• Court: Oregon Court of Appeals

Page 24

633 P.2d 24

53 Or.App. 693

STATE of Oregon, Respondent, v. Todd CASWELL, Appellant.

No. 78-38195; CA 18200.

Court of Appeals of Oregon.

Argued and Submitted Nov. 26, 1980.

Decided Aug. 31, 1981.

Kathryn A. Wood, Public Defender Services, Eugene, argued the cause and filed the brief for appellant.

John C. Bradley, Asst. Atty. Gen. Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.

Before RICHARDSON, P. J., and THORNTON and BUTTLER, JJ.

RICHARDSON, Presiding Judge.

Defendant appeals his conviction following a jury trial of driving while his operator's license was suspended, a misdemeanor. ORS 487.560. He was also convicted in a consolidated trial on two other charges which are not involved in this appeal. Defendant makes six assignments of error. The first three assignments challenge the admission of three documents relating to the status of defendant's driving privileges. Assignment number four contends his motion for judgment of acquittal should have been granted, and the two remaining assignments relate to jury instructions.

Defendant is not a resident of Oregon and had never obtained an Oregon driver's license. In 1977 defendant was convicted in Oregon of driving while under the influence of intoxicants, which was his second conviction within a five-year period. The Motor Vehicles Division suspended defendant's right to drive in Oregon for one year. The order of suspension was mailed to defendant but was not delivered.

Defendant was subsequently arrested for driving while suspended, a felony. This was not the charge involved in this appeal. At the trial on that charge, defendant was found not guilty on the basis that he did not have notice of the suspension. At the conclusion of the proceedings, the prosecutor handed defendant a copy of the suspension order. Defendant was represented by an attorney who took the suspension order from defendant. The trial judge warned defendant not to drive until he checked with the Motor Vehicles Division. Defendant checked with the Division and was told he could not get a license until he obtained insurance. Defendant did not obtain insurance or an Oregon driver's license.

Defendant was arrested on the present charge on November 17, 1978. He gave the arresting officer a name other than his own. The officer checked the license status of the person defendant named and determined that the physical description in the Motor Vehicles Division records did not match defendant's physical characteristics. When confronted with this information, defendant said he lied because he was suspended and did not want to go to jail. Prior to trial on the present charge, defendant filed a notice of intent to rely on the affirmative defense of lack of notice.

In the first assignment defendant challenges the admission, over his objection, of a suspension order issued by the Motor Vehicles Division. He contends the document is insufficient, because it does not contain a notice of defendant's right to a presuspension hearing. The challenged order of suspension indicates defendant's driving privileges were suspended because of his second conviction for driving under the influence of intoxicants. The identical contention raised here was made in State v. Palomino, 53 Or.App. 194, 631 P.2d 802 (1981), and was rejected. See also, State v. Stroup, 290 Or. 185, 620 P.2d 1359 (1980). The suspension order was properly admitted.

The second assignment of error contends a document entitled "Notice of Service" was improperly admitted. The document is a Motor Vehicles Division form which was filled out by the prosecutor at defendant's previous trial on a charge of driving while suspended. The form reflected that defendant was personally served in open court with a notice of his suspension and was signed by the prosecutor who personally served defendant. On the bottom of the form was a handwritten sentence: "Notified of right to hearing per Floyd v. DMV." Defendant objected to the document on the ground that the handwritten sentence regarding notice of a right to hearing was hearsay and thus could not establish that defendant had been properly notified of his right to a hearing regarding the suspension. The document was offered to establish that defendant had notice of the suspension by personal service. For the reasons expressed in State v. Palomino, supra, the document is admissible.

The third assignment of error concerns admission of a Motor Vehicles Division computer printout of defendant's driving record. Prior to admitting the driving record, the court deleted all references to defendant's prior convictions and left the notations as to the status of his driving privileges. A police officer testified, without objection, as to the meaning of the entries on the driving record, which shows defendant was suspended from May 11, 1977, to April 15, 1978, for his second DUII conviction. Defendant argues that that notation is prejudicial because it discloses to the jury a prior conviction. Assuming that it was error not to delete the reference to defendant's prior conviction, the error was harmless. The suspension order discussed under the first assignment contained a notation that defendant was suspended because of a second conviction for driving under the influence of intoxicants. In addition, a police officer testified, without objection, that defendant had two prior convictions for DUII, and the defendant admitted he had a prior conviction for that offense.

Defendant also argues the driving record was irrelevant because it did not disclose the status of his driving privileges on the day of his arrest, November 17, 1978, and because its recitations are hearsay. In State v. Sherman, 48 Or.App. 881, 618 P.2d 973, rev. den. 290 Or. 211 (1980), we held that the computer printout of a driving record was admissible to establish the status of the defendant's driver's license on the day he was arrested. We concluded that the entries on the record indicating a suspension and no indication of reinstatement were probative of the status of the license on the day of defendant's arrest.

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