State v. Heckler

• Decision Date: 19 September 2018
• Docket Number: A163979
• Citation: 430 P.3d 224,294 Or.App. 142
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Timothy James HECKLER, Defendant-Appellant.
• Court: Oregon Court of Appeals

294 Or.App. 142
430 P.3d 224

STATE of Oregon, Plaintiff-Respondent,
v.
Timothy James HECKLER, Defendant-Appellant.

A163979

Court of Appeals of Oregon.

September 19, 2018
Submitted August 2, 2018.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anna Belais, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and DeVore, Judge, and Landau, Senior Judge.

LAGESEN, P. J.

294 Or.App. 143

Defendant appeals a judgment of conviction for felony driving while under the influence of intoxicants (DUII), ORS 813.010, and reckless driving, ORS 811.140. The offense of DUII becomes a felony if the defendant has been convicted of DUII in violation of ORS 813.010 or "its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense." ORS 813.011(1). Defendant was convicted twice in Colorado for "driving while ability impaired" (DWAI). See Colo Rev Stat (CRS) § 42-4-1301(1)(b) (2006), (2010).¹ Defendant argues that his prior convictions under CRS section 42-4-1301 (1)(b)"do not qualify as predicates to enhance defendant's current DUII to a felony because the Colorado DWAI [statute] is not the statutory counterpart to ORS 813.010" and that the trial court erred in holding otherwise. Because we conclude, applying the analysis of State v. Donovan , 243 Or. App. 187, 256 P.3d 196 (2011), that Colorado's DWAI statute, CRS section 42-4-1301(1)(b), is a statutory counterpart to ORS 813.010, we affirm.

Defendant, who had previously twice been convicted of DWAI under CRS section 42-4-1301(1)(b), was charged with DUII for driving while intoxicated in Bend, Oregon. At trial, defendant filed a motion to exclude both of his prior Colorado convictions on the ground that CRS section 42-4-1301(1)(b) is not the statutory counterpart to the Oregon DUII statute under which he was convicted, ORS 813.010. The trial court denied the motion. Pursuant to a conditional guilty plea, defendant was convicted of DUII, ORS 813.010, which was treated as a felony based on the Colorado convictions, and reckless driving, ORS 811.140. On appeal, defendant challenges the court's reliance on the Colorado convictions, contending that CRS section 42-4-1301(1)(b) is not the statutory counterpart to ORS 813.010.

We review a trial court's determination that a statute in another jurisdiction is a "statutory counterpart" to

294 Or.App. 144

ORS 813.010

430 P.3d 226

for legal error. Donovan , 243 Or. App. at 191, 256 P.3d 196. The question in this case is whether CRS section 42-4-1301(1)(b) is a statutory counterpart to ORS 813.010. ORS 813.010, Oregon's DUII statute, provides, in relevant part:

"(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

"(a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150 ;

"(b) Is under the influence of intoxicating liquor, cannabis, a controlled substance or an inhalant; or

"(c) Is under the influence of any combination of intoxicating liquor, cannabis, a controlled substance and an inhalant."

CRS section 42-4-1301 is Colorado's general driving while intoxicated statute. It identifies a number of alternative means of proving the offense, including, as is relevant for our purposes, driving while ability impaired, CRS section 42-4-1301(1)(b), the provision under which defendant was...