State v. Rhoades, C8005-31870

• Decision Date: 12 October 1981
• Docket Number: No. C8005-31870,C8005-31870
• Parties: STATE of Oregon, Respondent, v. Rodney Ray RHOADES, Appellant. ; CA 18714.
• Court: Oregon Court of Appeals

Page 806

634 P.2d 806

54 Or.App. 254

STATE of Oregon, Respondent, v. Rodney Ray RHOADES, Appellant.

No. C8005-31870; CA 18714.

Court of Appeals of Oregon.

Argued and Submitted Feb. 27, 1981.

Decided Oct. 12, 1981.

Brad Johnson, Portland, argued the cause for appellant. On the brief was D. Richard Hammersley, Portland.

James E. Mountain, Jr., 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 BUTTLER, P. J., and WARDEN and WARREN, JJ.

WARDEN, Judge.

Defendant appeals a judgment declaring him to be a habitual traffic offender. ORS 484.705. ¹ His ground for appeal is the court's refusal to appoint an attorney to represent him in that proceeding.

Defendant appeared in response to an Order to Show Cause why he should not be declared a habitual traffic offender. He was accompanied by an attorney. The attorney, having been informed by defendant of his indigent status, moved the court to appoint an attorney for defendant. After the court denied this motion, the attorney removed himself from the counsel table and defendant represented himself. The state, represented by a deputy district attorney, then presented its case. The court questioned defendant and reviewed the abstract of his driving record. On the basis of defendant's three convictions for Driving While Suspended within a five-year period, the court found defendant to be a habitual traffic offender.

We address, first, defendant's argument that Article I, section 11, of the Oregon Constitution, ² as applied in Brown v. Multnomah County Dist. Ct., 280 Or. 95, 570 P.2d 52 (1977), necessitates appointment of counsel for indigents in habitual offender proceedings. In Brown, the Supreme Court determined that a person was entitled to court-appointed counsel when he was indigent and charged with the traffic infraction of Driving Under the Influence of Intoxicants (DUII). ORS 487.540. ³ The court held that, although the legislature had "decriminalized" the first DUII offense, the infraction still "retain(s) too many penal characteristics not to be a 'criminal prosecution' under Article I, section 11, of the Constitution." The court looked at a variety of "indicia" which have been used to determine what is, for constitutional purposes, a criminal prosecution: the type of offense, the prescribed penalty, the collateral consequences, the punitive significance of the sanction, and whether criminal procedures, such as arrest and detention, were involved. It concluded that:

" * * * considering the magnitude of the potential fine, the secondary sanctions in case of non-payment, the relationship of DUII to the other major traffic offenses, the evident legislative desire to emphasize the seriousness of this offense while facilitating its punishment, and the retention of criminal law enforcement procedures, the 1975 code did not free this offense from the punitive traits that characterize a criminal prosecution. Accordingly, petitioner is entitled to the constitutional and statutory protections afforded in the prosecutions of the other major traffic offenses that remained traffic crimes under the code." 280 Or. at 110, 570 P.2d 52.

Defendant points out that the habitual traffic offender proceeding is initiated and prosecuted by the district attorney and that defendant is "charged," according to the language of ORS 484.720(2), with being an offender. While the proceedings do have these aspects of a criminal prosecution, unlike Brown, none of the other criminal procedures, such as arrest or detention, are involved, and the purpose is not punitive but is intended to protect the public. The complaint in this matter is served as a summons in a civil action, ORS 484.725(1), and the appeal is taken as provided in civil cases. ORS 484.750. ⁴

In a habitual traffic offender proceeding sanctions of incarceration or fine are not permitted. Defendant points out that the loss of a driver's license for ten years ⁵ is a serious sanction. ⁶ However, when the sanction is regulatory, rather than punitive, it does not support the characterization of the statute as criminal. In Brown, the Supreme Court stated:

"The offense does not become 'criminal' rather than 'civil' merely because the loss of a license is a great inconvenience, so long as the suspension or revocation reflects a legislative, judicial, or administrative judgment that a traffic offender should not continue to drive." 280 Or. at 105, 570 P.2d 52.

In State v. Jackson, 34 Or.App. 587, 579 P.2d 299 (1978), we discussed the Habitual Traffic Offender Act and concluded that it was "civil," because it did not result in a finding of guilt or the enhancement of a penalty. Commenting on the regulatory nature of the act, this court stated:

"The consequence of a finding that defendant is a habitual traffic offender is suspension of his vehicle operator's license, which reflects a legislative determination that the habitual offender should not continue to drive." 34 Or.App. at 590, 579 P.2d 299.

We reaffirm our conclusion in Jackson that the Habitual Traffic Offender Act is civil in nature; the sanction is regulatory rather than punitive.

We turn now to defendant's reliance on the federal law. Defendant relies on Argersinger v. Hamlin, 407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972), where the Supreme Court held that a defendant facing imprisonment had a right to the assistance of appointed counsel if indigent. Argersinger is not in point here, for defendant is not facing incarceration.

Defendant also argues that because one who drives in violation of an order declaring him to be a habitual offender is subject to criminal prosecution and possible imprisonment, ORS 484.740, ⁷ denial of assistance of counsel in the habitual offender proceeding violates his right to counsel under the Sixth Amendment of the United States Constitution. A similar claim was made in Ferguson v. Gathright, 485 F.2d 504 (4th Cir. 1973), challenging the Virginia Habitual Offender Act. The Virginia act provides procedures closely similar to those in the Oregon act and also provides prosecution and imprisonment for driving during the period of prohibition. In Ferguson, the court held that the Sixth Amendment did not compel the appointment of counsel, and we agree. Distinguishing license revocation proceedings from criminal or quasi-criminal cases, the court said:

"* * * In the (license revocation) situation, the defendant loses simply his right to operate a motor vehicle on the public highways; he suffers no loss of liberty or threat of incarceration. (Footnote omitted.) He is not substantially different in condition from thousands of others, who, for one reason or another, have been denied, or have suffered a loss of, a driving permit. (Footnote omitted.) He comes under the threat of incarceration only if he subsequently determines to take the law into his own hands and to operate a motor vehicle on the public highway without a valid permit.

"His situation, in those circumstances, is substantially similar in principle to that of the person, who, denied a renewal of his license because of impaired vision or other cause, drives a motor vehicle on the public highway. It is his subsequent defiance of the law, and only indirectly his revocation proceedings, that brings into play the criminal processes and places him in peril of imprisonment. * * *" 485 F.2d at 506. (Emphasis in original.)

The court in Ferguson went...