State v. Dahl

• Citation: 185 Or.App. 149,57 P.3d 965
• Parties: STATE of Oregon, Respondent, v. Christine DAHL, Appellant.
• Decision Date: 20 November 2002
• Court: Court of Appeals of Oregon

57 P.3d 965

185 Or.App. 149

STATE of Oregon, Respondent, v. Christine DAHL, Appellant.

PR106249; A112549.

Court of Appeals of Oregon.

Argued and Submitted September 4, 2002.

Decided November 20, 2002.

Jeffrey C. Dahl, Lake Oswego, argued the cause and filed the briefs for appellant.

Rolf C. Moan, 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 LANDAU, Presiding Judge, and ARMSTRONG and BREWER, Judges.

BREWER, J.

Defendant appeals from a judgment finding that she violated the maximum speed limit in an urban area. ORS 811.123.¹ A police photo radar unit measured the vehicle's speed and photographed the driver. To prove that defendant was the driver of the vehicle, the state relied solely on ORS 810.439(1)(b), which establishes a rebuttable presumption that the registered owner of a vehicle was its driver when a photo radar citation has been issued and delivered.² Defendant assigns error to the trial court's denial of her motion for judgment of acquittal, arguing that, by relying solely on that presumption, the trial court improperly shifted the burden of persuasion to her and violated her constitutional right to due process. She also contends that a witness's comment on her failure to submit a certificate of innocence pursuant to ORS 810.439(1)(c) violated her constitutional right against self-incrimination and her statutory right not to testify in a traffic violation case. We review for errors of law, State v. Hirsch, 177 Or.App. 441, 34 P.3d 1209 (2001),rev. allowed, 334 Or. 288, 49 P.3d 797 (2002), and affirm.

The facts are undisputed. On March 2, 2000, Officer Frolov operated a photo radar unit that detected and photographed a vehicle exceeding the posted speed limit. Defendant was the only registered owner of the vehicle. Frolov saw the vehicle but did not stop it and did not identify the driver. He mailed defendant a citation for violating the maximum speed limit in an urban area.

At trial, defendant appeared by attorney, rather than in person. Frolov appeared for the state. See ORS 153.083. He submitted a photograph, taken by the radar unit at the time of the offense, showing the driver of the vehicle, but he did not identify the person in the photograph. On cross-examination, Frolov testified that he assumed that defendant was the driver because she did not submit a certificate of innocence pursuant to ORS 810.439(1)(c). The state offered no other evidence that defendant was, in fact, the driver. The trial court found defendant guilty and entered a judgment assessing a fine against her.

On appeal, defendant argues that the judgment in this case is, in essence, a criminal conviction. From that premise, she reasons that the conviction is invalid, because the presumption established by ORS 810.439(1)(b) supplied the sole evidence tending to prove that she was the driver, thereby impermissibly shifting the burden of persuasion to her on that issue. Next, defendant argues that, even if a civil standard for presumptions is applicable in this case, ORS 810.439(1)(b) violates due process requirements. Finally, defendant argues that the state violated her statutory and constitutional rights to remain silent when Frolov commented on her failure to submit a sworn certificate of innocence.³

We begin with defendant's argument that the statutory presumption of ORS 810.439(1)(b) impermissibly shifted the burden of persuasion to her. In a criminal case, the prosecution may not rely on a rebuttable presumption to prove an element of an offense. State v. Rainey, 298 Or. 459, 465-66, 693 P.2d 635 (1985); see also OEC 309. A different rule would improperly shift the burden of persuasion to the defendant. In civil cases, on the other hand, "a presumption imposes on the party against whom it is directed the burden of proving that the nonexistence of the presumed fact is more probable than its existence." OEC 308. Thus, in a civil action, a presumption stands unless rebutted by a preponderance of the evidence. Lawrence v. Clackamas County, 164 Or.App. 462, 468, 992 P.2d 933 (1999); see also Roach v. Jackson County, 151 Or.App. 33, 38, 949 P.2d 1227 (1997),

rev. den., 326 Or. 389, 952 P.2d 62 (1998) (applying OEC 308 to the presumption in ORS 609.157 that a dog found chasing livestock where freshly damaged livestock is found is presumed to have caused the damage).

The decisive question is whether criminal or civil standards for presumptions apply in this case. ORS 153.030(1) provides that, "[e]xcept as specifically provided in this chapter, the criminal procedure laws of this state applicable to crimes also apply to violations." However, ORS 153.076(2) provides a specific exception. It requires the state to prove a traffic violation "by a preponderance of the evidence," the ordinary civil standard, rather than "beyond a reasonable doubt," the standard applied in criminal cases. Because the civil standard of proof applies and the presumption in ORS 810.439(1)(b) assists the state in satisfying that standard of proof, the civil standard logically should apply to that presumption.

Defendant remonstrates that criminal standards are applicable because, even though a traffic violation is punishable only by a fine, not by incarceration, ORS 153.018, collateral consequences attach to a traffic violation judgment in the form of increased insurance premiums and more serious penalties for repeat offenses. However, defendant offers no support for the assertion that those risks rise to the level of criminal punishment. See ORS 153.008(2) (providing that "[c]onviction of a violation does not give rise to any disability or legal disadvantage based on conviction of a crime."); cf. Brown v. Multnomah County Dist. Ct., 280 Or. 95, 102-09, 570 P.2d 52 (1977)

(reviewing factors pertinent to whether an offense properly is subject to constitutional safeguards applicable to criminal prosecutions). A violation is not a crime. ORS 161.515. "The state accordingly may use rebuttable presumption to prove traffic violations." State v. Potter, 185 Or. App. 81, 87 n.4, 57 P.3d 944 (2002). Accordingly, we reject defendant's argument that criminal standards for presumptions apply in this case, and, as a consequence, we also reject her argument that ORS 810.439(1)(b) improperly shifted the burden of persuasion to her.

We turn to defendant's contention that, even if the civil standard for presumptions is applicable in this case, ORS 810.439(1)(b) violates the Due Process Clause of the Fourteenth Amendment to the United States Constitution.⁴ In that regard, the United States Supreme Court has said:

"The State, in the exercise of its general power to prescribe rules of evidence, may provide that proof of a particular fact, or of several facts taken collectively, shall be prima facie evidence of another fact when there is some rational connection between the fact proved and the ultimate fact presumed. The legislative presumption is invalid when it is entirely arbitrary, * * * or operates to deprive a party of a reasonable opportunity to present the pertinent facts in his defense."

Bandini Petroleum Co. v. Superior Ct., 284 U.S. 8, 18-19, 52 S.Ct. 103, 76 L.Ed. 136 (1931) (emphasis added). In State Land Board v. United States, 222 Or. 40, 51, 352 P.2d 539 (1960), rev'd on other grounds sub nom, United States v. Oregon, 366 U.S. 643, 81 S.Ct. 1278, 6 L.Ed.2d 575 (1961),

the Oregon Supreme Court quoted what it called "[p]erhaps the clearest and best enunciated statement of the test of rational connection * * *":

"`* * * Under our decisions, a statutory presumption cannot be sustained if there be no rational connection between the fact proved and the ultimate fact presumed, if the inference of the one from proof of the other is arbitrary because of lack of connection between the two in common experience. This is not to say that a valid presumption may not be created upon a view of relation broader than that a jury might take in a specific case. But where the inference is so strained as not to have a reasonable relation to the circumstances of life as we know them it is not competent for the legislature to create it as a rule governing the procedure of courts.'"

(quoting Tot v. United States, 319 U.S. 463, 467-68, 63 S.Ct. 1241, 87 L.Ed. 1519 (1943)) (emphasis added).

We examine, then, whether the statutory presumption that the driver of a vehicle is its registered owner bears some rational connection to vehicle ownership. Defendant urges us to take judicial notice of several facts, including that vehicles usually have more than one key, licensed drivers outnumber registered vehicles, and vehicles commonly are borrowed or stolen, all of which indicate that vehicles are often driven by someone other than their owner. We acknowledge that vehicles often are driven by people other than their registered owners. We further recognize that many vehicles have more than one registered owner, and many vehicles are owned by corporations and other entities that are not individual persons.⁵ But whether we agree that those facts provide valid alternative explanations is irrelevant. Just as we might agree that vehicles are sometimes driven by nonowners, we must also note that it is not irrational for the legislature to presume that vehicles often are driven by owners. Furthermore, we need not decide what facts are more likely to be true; the rational connection test does not require adoption of the best or most persuasive explanation.

In this case, we cannot say that, "in common experience," it is "entirely arbitrary" to presume that the driver of a vehicle is also its owner. The "circumstances of life as we know them" require that we accept the policy choice of the legislature. ORS 810.439(1)(b) does not create an irrational or entirely arbitrary presumption.

Finally, we address defendant's argument that Frolov's comment about her failure...