State v. Rodriguez

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: Landau
• Citation: State v. Rodriguez, 217 Or App 24, 175 P3d 471 (Or. App. 2007)
• Decision Date: 19 December 2007
• Docket Number: 04065087C.,A126339.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Ruben E. RODRIGUEZ, Defendant-Appellant.

175 P.3d 471

217 Or. App. 24

STATE of Oregon, Plaintiff-Respondent, v. Ruben E. RODRIGUEZ, Defendant-Appellant.

04065087C.

A126339.

Court of Appeals of Oregon, En Banc.

Argued and Submitted January 12, 2007.

Resubmitted En Banc August 8, 2007.

Decided December 19, 2007.

Leland R. Berger, Portland, argued the cause for appellant. With him on the brief was Anthony L. Johnson.

Laura S. Anderson, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Jesse Wm. Barton, Salem, filed the brief amicus curiae for Gregory Alan Robben and Oregon Criminal Defense Lawyers Association.

Before BREWER, Chief Judge, and EDMONDS, LANDAU, HASELTON, ARMSTRONG, WOLLHEIM, SCHUMAN, ORTEGA, ROSENBLUM, and SERCOMBE, Judges.

LANDAU, J.

At issue in this case is the meaning of ORS 809.235(1)(b) (2003), amended by Or. Laws 2005, ch. 436, § 1,¹ which provides that a court must order a person's driving privileges revoked either if the person is convicted of felony driving while under the influence of intoxicants (DUII) or "if the person is convicted of misdemeanor driving while under the influence of intoxicants under ORS 813.010 for a third time." (Emphasis added.) In this case, defendant pleaded guilty to misdemeanor DUII. It happens to be his fourth misdemeanor DUII. The question is whether ORS 809.235(1)(b) requires the court to revoke his driving privileges. The trial court concluded that the statute requires the revocation of defendant's driving privileges. Defendant appeals, contending that the trial court erred in construing the statute. We agree with the trial court and affirm.

The relevant facts are not in dispute. In August 2004, defendant pleaded guilty and was subsequently convicted of DUII when he drove with a blood alcohol content of .27 percent. He had previously been convicted of DUII in 1976 and 1980 in Oregon. He also had been convicted of DUII in 1989 in California.

At sentencing, the state argued that, under ORS 809.235(1)(b), the trial court was required to permanently revoke defendant's driving privileges. Defendant argued that the statute does not apply to him. According to defendant, the statute applies only when a person has been convicted of misdemeanor DUII "for a third time," and this is his fourth such conviction. The trial court agreed with the state and permanently revoked defendant's driving privileges.

On appeal, defendant renews his contention that the statute does not apply because this is his fourth — and not his third — conviction for misdemeanor DUII. According to defendant, the plain meaning of the reference to a "third" means that there must be two, and only two, prior convictions.

In response, the state first contends that defendant's appeal is not justiciable. The state argues that, under ORS 138.050(1), a defendant who has pleaded guilty or no contest may appeal only a limited number of issues pertaining to the lawfulness of a sentence. In this case, the state argues, the trial court's revocation of defendant's driving privileges pursuant to ORS 809.235 is, technically, not part of a "sentence" within the meaning of the statute. We rejected that contention in State v. Nave, 214 Or.App. 324, 327-28, 164 P.3d 1219 (2007). We adhere to that holding in this case, as well.

On the merits, the state contends that the trial court was correct in concluding that the statute applies. According to the state, the statute applies when there has been a third conviction, which plausibly could apply either to a defendant who has only two prior DUII convictions or to a defendant who has at least two such convictions. The state urges the latter construction as the one that the legislature more likely than not intended. In support, the state notes that the legislature employed the indefinite article — "a third time" — which ordinarily is taken to be an indefinite determiner with an indefinite reference. The state also notes that defendant's proposed construction would produce the implausible result that a person with a greater number of prior DUII convictions would be entitled to a lesser penalty. Even assuming that the statute is ambiguous, the state contends, the legislative history makes clear that the interpretation that defendant proposes is not what the legislature intended.

Resolving the parties' dispute requires an application of familiar principles of statutory construction. Familiar as they are, it may be worthwhile to review some of the basics. First, the object of the exercise is to ascertain, if possible, the intention of the legislature. ORS 174.020(1)(a) ("In the construction of a statute, a court shall pursue the intention of the legislature if possible."). Second, the intention of the legislature is ascertained by examining the language of the statute in three sequential steps described in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). At the initial level of the analysis we are to examine the words of the statute in context to determine whether the disputed provision is "ambiguous," that is, whether the provision is capable of more than one reasonable construction. If it is, we then proceed to the legislative history, and, if the legislative history does not resolve that ambiguity, we resort to relevant canons of construction. Id. It is important to emphasize how little it takes to demonstrate that a statute is "ambiguous." As we explained in Godfrey v. Fred Meyer Stores, 202 Or.App. 673, 686, 124 P.3d 621 (2005), rev. den., 340 Or. 672, 136 P.3d 742 (2006):

"[T]he threshold of ambiguity is a low one. It does not require that competing constructions be equally tenable. It requires only that a competing construction not be `wholly implausible.' Owens v. MVD, 319 Or. 259, 268, 875 P.2d 463 (1994)[.]"

With the foregoing principles in mind, we turn to the wording of the statute. ORS 809.235(1)(b) provides:

"The court shall order that a person's driving privileges be permanently revoked if the person is convicted of felony driving while under the influence of intoxicants under ORS 813.010 or if the person is convicted of misdemeanor driving while under the influence of intoxicants under ORS 813.010 for a third time."

In this case, the question is what the legislature intended by the reference to a person having been convicted of misdemeanor DUII "for a third time." More precisely, the question is — at least initially — whether there is more than one construction of that provision that is not "wholly implausible." Owens, 319 Or. at 268, 875 P.2d 463.

The answer to that question is straightforward. The statute is at least ambiguous. In ordinary speech, references to numeric sequences can mean a variety of things. According to the usual source of ordinary meaning, Webster's Third New Int'l Dictionary 2377-78 (unabridged ed. 2002), for example, the adjective "third" may refer to "being number three in a countable series," or "being next to the second in place or time," or "being the last in each group of three in a series," among other things. One of those definitions — the middle one — is consistent with defendant's proposed construction. But the other two are consistent with the state's.

That is not surprising, as the ambiguity of numeric references is a common feature of ordinary speech. To pick a silly example, when you tell your child, "if you do that one more time, you are grounded," that admonition does not necessarily mean that grounding will follow one — and only one — offense. To cite another, to tell the child that he or she may have "seconds" does not necessarily mean that the child cannot have a third or fourth helping. The precise meaning of the numeric reference depends on the context in which it is employed.

More to the point, the legislature employs references to ordinal numbers in the same way. For example, ORS 468.939(2) provides that the crime of unlawful air pollution in the first degree is a Class B felony. The statute goes on to say that, "upon a second conviction" of the offense within a five-year period, the court may impose a fine of $200,000 in addition to any other sentence. The statute says nothing about subsequent convictions. It seems clear that the legislature did not intend that the availability of the additional fine to be limited to the second — and only the second — conviction and that, upon a third or fourth conviction within the requisite five-year period, the offense reverts to the lesser sentence, and it does no particular violence to the language to read the statute consistently with that understanding. See also ORS 468.946(3) ("Upon a second conviction for unlawful water pollution in the first degree within a five-year period," a court may impose a fine in addition to other allowable sentence.)

So, to return to the wording of ORS 809.235(1)(b), there is nothing in the phrasing of the provision referring to a defendant having been convicted of misdemeanor DUII "for a third time" that necessarily means that the statute applies to a third — and only a third — conviction. Reading the statute to apply to a third and subsequent convictions is, in other words, not wholly implausible.

Ambiguity, of course, is not determined by reference to the phrasing of a statute in isolation. See, e.g., Lane County v. LCDC, 325 Or. 569, 578, 942 P.2d 278 (1997) ("[W]e do not look at one subsection of a statute in a vacuum; rather, we construe each part together with the other parts in an attempt to produce a harmonious whole."). The question then becomes whether there is something in the relevant context of ORS 809.235(1)(b) that renders the foregoing construction untenable as a matter of law, that is, wholly implausible. We find no such impediments in the other relevant provisions of the statute. If anything, resort to other provisions of the statute only serves to muddy the proverbial waters as to precisely what...