State v. King
| Decision Date | 28 May 1993 |
| Parties | STATE of Oregon, Respondent on Review, v. Marrion Allison KING, Petitioner on Review. STATE of Oregon, Respondent on Review, v. John Gene LAYTON, Petitioner on Review. DC 90-61827; CA A69804; SC S39537, DC 90-60221; CA A71859; SC S39624, Consolidated for Argument and Opinion. |
| Court | Oregon Supreme Court |
Michael V. Phillips, of Johnson, Clifton, Larson & Bolin, P.C., Eugene, argued the cause and filed the petition for petitioner on review King.
Joseph A. Tripi, of Thorp, Dennett, Purdy, Golden & Jewett, P.C., Springfield, argued the cause for petitioner on review Layton. Richard L. Fredericks filed the petition.
Janet A. Metcalf, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With her on the responses to the petitions for review were Charles S. Crookham, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
In each of these cases, consolidated for oral argument and opinion, the defendant was arrested and tried for Driving Under the Influence of Intoxicants (DUII). The prosecution presented evidence in each case that defendants were driving, that each had a blood alcohol content (BAC) exceeding .08 percent, a violation of subsection (a) of ORS 813.010(1) 1, and that the driving of each was perceptibly impaired by the ingestion of alcohol, a violation of subsection (b) of the same statute. Citing this court's decision in State v. Boots, 308 Or. 371, 780 P.2d 725 (1989), 2 that required jury unanimity The Court of Appeals affirmed, respectively, in State v. King, 114 Or.App. 32, 834 P.2d 463 (1992), and State v. Layton, 114 Or.App. 637, 834 P.2d 553 (1992). We allowed review and consolidated the cases to consider whether this court's decision requiring jury unanimity in State v. Boots applies in the context of a DUII prosecution. 4 We conclude that it does not. We also consider and reject defendants' contention that their federal due process rights were denied by failure to require jury unanimity in this context. Accordingly, we affirm the decisions of the Court of Appeals and the judgments of the trial courts.
on the precise statutory subsection of the aggravated murder statute that a defendant has violated, each defendant requested a jury instruction requiring the jury in his case to agree unanimously as to which of the two DUII subsections he had violated. 3 Both [316 Or. 440] trial courts declined to give an instruction based on Boots. Defendants were convicted, and each appealed
THE BOOTS DECISION
State v. Boots, supra, established that, in order to convict, a jury must agree unanimously upon which statutorily-defined set of factual circumstances made a particular murder an aggravated murder. The defendant in that case was charged with committing Nothing in Boots limits its holding to aggravated murder cases, and we assume for the purposes of our analysis here that its rationale is not necessarily limited to such cases or even to cases requiring jury unanimity. We proceed to defendants' contention that a so-called "Boots instruction" is required in a DUII prosecution.
murder under circumstances implicating two of the 17 separate aggravating factors listed in ORS 163.095. 5 This court held that the trial court erred by not instructing the jury that, to convict, the jury had to agree upon the defendant's guilt under at least one single aggravating factor listed in the aggravated murder statute. It was not sufficient that all members of the jury merely agreed as to defendant's guilt. State v. Boots, supra, 308 Or. at 377, 780 P.2d 725
The basic rationale of State v. Boots, supra, 308 Or. at 375 and 381 n. 9, 780 P.2d 725, is that each of the 17 special circumstances or "aggravating factors" listed in ORS 163.095 is an element of a separate and distinct crime. 6 Each element of each crime must be proven to each juror beyond a reasonable doubt. To further illustrate the court's conclusion in Boots, the elements upon which a jury must agree in a particular aggravated murder case could be murder plus intentional maiming, ORS 163.095(1)(e), or murder plus use of an explosive, ORS 163.095(2)(c), but it would not suffice if the jury agreed to an element defined as "murder plus either intentional maiming or use of an explosive." Said another way, the crime of aggravated murder is composed of the element of murder plus the element of a particular aggravating circumstance.
Central to the Boots decision was a concern for the possibility that, at the close of trial, a jury could agree on guilt by agreeing that some one or another of a number of aggravating factors was proved without agreeing that any particular aggravating factor was proved. State v. Boots, supra, 308 Or. at 379, 780 P.2d 725. Logically, such failure to agree on an aggravating factor (a factor having been defined by the court as an element of the offense) would result in a jury's failing to agree that a defendant had committed a particular crime of aggravated murder at all. The court stressed that jury unanimity is required for "facts that the law (or the indictment) has made essential to a crime," not for "factual details, such as whether a gun was a revolver or a pistol and whether it was held in the right or left hand." Ibid.
ANALYSIS OF THE DUII STATUTE
DUII is defined in ORS 813.010, which provides:
Do those statutory subsections describe essential elements of three separate offenses, as do the 17 aggravating factors that are essential elements of ORS 163.095, or do they establish three sets of circumstances, any or all of which go to prove a single essential element (being under the influence of intoxicants)?
If the language of the statute under consideration is ambiguous, we must attempt to construe the statute. In construing a statute, we must attempt to discern the intent of the legislature. ORS 174.020; State ex rel. Juv. Dept. v. Ashley, 312 Or. 169, 174, 818 P.2d 1270 (1991). To do that, we look first to the text and context of the statute, in an effort to give effect to all provisions. ORS 174.010. See Sanders v. Oregon Pacific States Ins. Co., 314 Or. 521, 840 P.2d 87 (1992) (). If the text and context are not sufficiently illuminating and ambiguity remains, we look to legislative history. Teeny v. Haertl Constructors, Inc., 314 Or. 688, 842 P.2d 788 (1992).
Like the aggravated murder statute, the DUII statute is written in the disjunctive: The offense is committed if a person drives a vehicle while (1) the person has the requisite concentration of alcohol in his or her blood or while (2) the person's mental or physical abilities are affected to a perceptible degree by ingestion of intoxicants. Defendants argue that driving with a BAC of .08 is a different offense from driving while perceptibly affected by intoxicants. The state argues that a .08 BAC level and perceptible impairment are alternative factual circumstances, but that either of them establishes the single element of "being under the influence of intoxicants" of a single offense. The text of the statute can be read to support either of those interpretations.
We next look to context. ORS 813.010 specifically identifies the offense thus: "A person commits the offense of driving while under the influence of intoxicants if * * *." (Emphasis added.) The emphasized phrase is repeated throughout ORS chapter 813 as part of nearly every statute contained therein. The chapter provides for a driver's implied consent to submit to field sobriety tests if a "police officer reasonably suspects the driver has committed the offense of [DUII]," ORS 813.135 (emphasis added) and, if the driver is arrested for DUII, to a breath test to determine his or her BAC, ORS 813.100. ORS 813.300 establishes that BAC test results are admissible in civil or criminal actions. Specifically,
"Not less than .08 percent by weight of alcohol in a person's blood constitutes being under the influence of intoxicating liquor." ORS 813.300(2). 7
The context of ORS 813.010 suggests that there is but a single offense of DUII and that chemical evidence of a .08 percent BAC is a circumstance tending to prove one element of that offense, the element of being under the influence of intoxicating liquor and/or a controlled substance. (BAC tests, of course, do not measure the presence or influence of a controlled substance, although the offense of DUII can be committed by driving under its influence, as well.)
Because there remains some potential for ambiguity, we look to legislative history for insight into legislative intent. As defendants point out, the two subsections at issue were born in different contexts. Driving while under the influence of intoxicating liquor has been forbidden by Oregon law since 1925. 8 Or.Laws 1925, ch. 182. That law was interpreted in 1926 to forbid driving while "under the influence of intoxicating liquor to some perceptible degree." State v. Noble, 119 Or. 674, 678, 250 P. 833 (1926). The first statutory reference to a specified BAC was in a 1965 statute establishing a rebuttable presumption that a blood alcohol level of .15 percent constituted State v. Clark, 35 Or.App. 851, 856, 583 P.2d 1142 (1978), aff'd, 286 Or....
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