State v. Vazquez-Escobar

• Decision Date: 21 February 2007
• Docket Number: 031155488,A126694.
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Agustin VAZQUEZ-ESCOBAR, Defendant-Appellant.
• Court: Oregon Court of Appeals

153 P.3d 168

211 Or. App. 115

STATE of Oregon, Plaintiff-Respondent, v. Agustin VAZQUEZ-ESCOBAR, Defendant-Appellant.

031155488

A126694.

Court of Appeals of Oregon.

Submitted on Record and Briefs October 31, 2006.

Decided February 21, 2007.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Stephanie Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Paul L. Smith, Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.

HASELTON, P.J.

Defendant appeals, challenging the permanent revocation of his driving privileges after he pleaded guilty to driving under the influence of intoxicants (DUII). ORS 813.010. The trial court revoked defendant's driving privileges pursuant to ORS 809.235(1)(b), which requires a court to do so when a defendant has been convicted of DUII for a third time. Defendant asserts that the revocation violated the ex post facto provisions of the Oregon and United States constitutions, Or. Const., Art. I, § 21; U.S. Const., Art. I, § 10, because the conduct giving rise to his third DUII conviction occurred before the effective date of ORS 809.235(1)(b). We review for legal error and affirm.

ORS 809.235(1)(b) (2003), amended by Or. Laws 2005, ch. 436, § 1, provides:

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

That permanent revocation provision became effective on January 1, 2004, Or. Laws 2003, ch. 346, and applies "to persons whose third conviction of misdemeanor driving while under the influence of intoxicants occurs on or after the effective date of [the] Act." Or. Laws 2003, ch. 346, § 4 (emphasis added).¹ Before January 1, 2004, a person, upon a third misdemeanor DUII conviction, was subject, at most, to a three-year suspension of driving privileges. ORS 813.400(1) (2001), amended by Or. Laws 2003, ch. 346, § 1; former ORS 809.420(2)(c) (2001), renumbered as ORS 809.428 (2003).

Defendant was convicted of DUII in 1996 and 1997. On April 19, 2003, defendant was arrested for, and charged with, DUII a third time. On April 21, 2004 — a year later — defendant pleaded guilty and was convicted of DUII based on the April 19, 2003, incident. In the interim, ORS 809.235(1)(b) (2003) became effective.

The state sought permanent revocation of defendant's driving privileges based on the intervening amendment because defendant's third DUII conviction occurred after the effective date of the amendment. Defendant responded that, because ORS 809.235(1)(b) (2003) had not been in effect at the time that he committed his third DUII offense, revocation pursuant to that statute would violate the ex post facto provisions of the Oregon and United States constitutions.

The trial court concluded that permanent revocation of defendant's driving privileges did not constitute "punishment" for state and federal ex post facto purposes and, consequently, rejected defendant's constitutional arguments. The court permanently revoked defendant's driving privileges and made that revocation a condition of his sentence of probation.

On appeal, defendant reiterates his constitutional arguments. Under the "first things first" doctrine, we begin with defendant's challenge under Article I, section 21, of the Oregon Constitution. See, e.g., MacPherson v. DAS, 340 Or. 117, 125-26, 130 P.3d 308 (2006) (Oregon courts analyze state constitutional challenges before turning to federal constitutional challenges).

Article I, section 21, of the Oregon Constitution provides that "[n]o ex-post facto law * * * shall ever be passed[.]" As the Supreme Court explained in State v. MacNab, 334 Or. 469, 475, 51 P.3d 1249 (2002):

"[T]he framers of the Oregon Constitution intended for Article I, section 21, to proscribe four categories of penal laws: those that punish acts that were legal before enactment; those that aggravate a crime to a level greater than it was before enactment; those that impose greater or additional punishment than that annexed to the crime before enactment; and those that deprive a defendant of a defense that was available before enactment."

Here, defendant argues that his license revocation under ORS 809.235(1)(b) (2003) falls into the third, "greater or additional punishment," category. The issue in a challenge under that category is whether the challenged law "imposes a form of increased punishment that Article I, section 21, prohibits." MacNab, 334 Or. at 475, 51 P.3d 1249 (emphasis added).

In MacNab, the court addressed, and rejected, an ex post facto challenge to a sex offender registration statute. The court began by explaining that, although the word "punishment" is not a part of the text of Article I, section 21, the focus of that section is to prohibit "`punishment' not annexed to the crime at the time of commission." 334 Or. at 476, 51 P.3d 1249. The court then framed the dispositive inquiry:

"[E]ven the most expansive mid-nineteenth century understanding of noncorporal punishment included some form of detriment, restraint, or deprivation intended primarily to deter the offender and others from committing future criminal acts. We conclude that the framers understood punishment to encompass those attributes at the time that they considered Article I, section 21. Accordingly, we examine the 1995 sex offender registration law to determine whether those punitive attributes (detriment, restraint, or deprivation intended to deter the offender and others) are present to such a degree that the application of the law to defendant violates Article I, section 21, of the Oregon Constitution."

Id. at 479, 51 P.3d 1249 (omitted; emphasis added).

Applying that formulation, the court observed that the registration statute's express purpose was to preclude future sex offenses and that, "[a]s a practical matter," the statute's operation "conforms to the legislature's declared purpose." Id. at 480, 51 P.3d 1249. Accordingly, the court concluded that the registration requirement "does not impose any significant detriment, restraint, or deprivation" on defendants constituting increased "punishment" for purposes of Article I, section 21. Id. at 481, 51 P.3d 1249.

Consistently with MacNab's formulation of "punishment," we begin, as did the court in MacNab, with the legislative purpose in enacting ORS 809.235(1)(b) (2003). That is was the imposition of permanent revocation "intended primarily to deter the offender and others from committing future criminal acts"? MacNab, 334 Or. at 479, 51 P.3d 1249 (emphasis added); see also Butler v. Board of Parole, 194 Or.App. 164, 169, 94 P.3d 149, rev. den., 337 Or. 555, 101 P.3d 809 (2004) ("Under [MacNab's] definition [of punishment], it is insufficient merely to show that a legislative or regulatory change has imposed a detriment, restraint, or deprivation on an offender. It also is necessary to show that the action is intended to serve as a deterrent to crime.").

The text of ORS 809.235(1)(b) (2003) itself does not include any statement of legislative purpose. However, ORS 801.020(11), which states the general purposes of the Oregon Vehicle Code, including ORS 809.235, provides:

"It is hereby declared to be the policy of this state:

"(a) To provide maximum safety for all persons who travel or otherwise use the public highways of this state;

"(b) To deny the privilege of operating motor vehicles on the public highways to persons who by their conduct and record have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state, the orders of its courts and the statutorily required acts of its administrative agencies; and

"(c) To discourage repetition of criminal acts by individuals against the peace and dignity of the state and its political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws."

In State v. Phillips, 138 Or.App. 468, 909 P.2d 882, rev. den., 323 Or. 114, 913 P.2d 1384 (1996), we analyzed those purposes in an analogous context. In Phillips, we addressed whether a one-year suspension of privileges pursuant to ORS 813.100 (the implied consent law) was "punishment" for federal double jeopardy purposes. As part of our constitutional analysis, we had to determine whether "deterrence alone [was] the goal" of the suspension, or if, instead, there was "any remedial goal." 138 Or.App. at 473-74, 909 P.2d 882. We observed that the general purposes of the Oregon Vehicle Code, as declared in ORS 801.020(11), are "unquestionably remedial in nature." Id. at 474, 909 P.2d 882. With respect to the purposes of ORS 813.100 specifically, we concluded:

"In order to carry out the purposes of the code, the legislature has enacted a comprehensive program of licensing and license suspension and revocation. The legislature has also determined that a person with a blood alcohol content of .08 or greater who drives a vehicle poses a danger to the public welfare and has prohibited that conduct. ORS 813.010[1](a). Suspending the driving privileges of drivers who drive while intoxicated is a method of removing the danger posed by intoxicated drivers. Even accepting defendant's argument that the threat of administrative suspension of a driver's license may serve to deter drivers from driving under the influence or refusing the breath test, that deterrent consequence does not alter the remedial nature of the statutory scheme."

Id. (emphasis added).

Here, defendant notes correctly that, in Phillips, we were addressing a double jeopardy challenge, not an ex post facto challenge....