State v. Wells
| Decision Date | 29 November 1976 |
| Citation | 27 Or.App. 537,556 P.2d 727 |
| Parties | STATE of Oregon, Respondent, v. George Gilbert WELLS, Appellant. |
| Court | Oregon Court of Appeals |
Walter T. Aho, Oregon City, argued the cause for appellant. With him on the brief was William E. Schumaker, Oregon City.
Rhidian M. M. Morgan, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.
Before SCHWAB, C.J., and FORT and LEE, JJ.
In this civil proceeding under the Habitual Traffic Offenders Act, ORS 484.700 to 484.750, defendant appeals from the circuit court's ruling that he is a habitual offender within the meaning of ORS 484.705(1)(a). 1 Under this provision a habitual offender is defined as a person who, within a five-year period, accumulates three convictions for any of the traffic offenses listed in ORS 484.705(1)(a). This list includes the crimes of reckless driving and of driving under the influence of intoxicants.
On July 1, 1974, defendant plead guilty to a charge of reckless driving. On June 17, 1975, he plead guilty to a second charge of reckless driving. Finally, on August 15, 1975, the defendant plead guilty to a charge of driving under the influence of intoxicants.
Defendant contends that he never received the notice required by ORS 484.715 and that the giving of such a notice by the state is a condition precedent to a determination that a person is a habitual traffic offender. The state contends that the statutory notice was given and that in any event it is not a condition precedent to a determination that a person is a habitual offender. The only evidence offered on the notice issue has no probative value for that purpose. Suffice it to say that it was a cryptic computer printout offered by the state for another purpose and capable of many interpretations, most of which would not comply with the provisions of ORS 484.715. In view of the posture of this case we need not and do not here consider who has the burden of pleading and who has the burden of proving notice or lack of notice under ORS 484.715.
Thus, the dispositive issue in this case is whether power to adjudge a driver a habitual traffic offender is conditioned upon the state's compliance with the notice requirement.
ORS 484.715 states:
The use of the word 'shall' means that notice is mandatory, absent indications to the contrary. See Stanley, Adm. v. Mueller, 211 Or. 198, 208, 315 P.2d 125, 71 A.L.R.2d 715 (1957). There are no such indications here; indeed, the use of the word 'immediately' reveals the importance the legislature attached to this mandatory notice requirement.
The importance of the notice is inherent in the purpose of the Act. The Act is not intended to punish habitual offenders; there is no such crime as being a habitual offender. The purpose of the Act is to protect the public. ORS 484.710. In order to accomplish this purpose, the legislature decided to rely heavily on deterrence and rehabilitation of habitual offenders. See Minutes, House Judiciary Committee, April 10, 1973, p. 12; Minutes, supra, April 18, 1973, p. 12; See also ORS 484.735(2).
The notice requirement is an important means of accomplishing these objectives. Notice deters potential habitual...
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State v. McCartney
...651 P.2d 1362 (1982); State v. Rhoades, 54 Or.App. 254, 634 P.2d 806, rev. den. 292 Or. 232, 644 P.2d 1126 (1981); State v. Wells, 27 Or.App. 537, 540, 556 P.2d 727 (1976), the purpose of the separate sentencing process, to avoid prejudice to the defendant, remains the same. Here, the infor......
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State v. Norton
...there is no such crime as being a habitual offender. The purpose of the Act is to protect the public. * * * " State v. Wells, 27 Or.App. 537, 540, 556 P.2d 727 (1976). The majority, in concluding that the legislature intended some statute of limitations to apply to proceedings under the Act......
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State v. Dennison, 80-8-99
...charging him. At trial, the state offered no evidence it had complied with the notice requirements of ORS 484.715. In State v. Wells, 27 Or.App. 537, 556 P.2d 727 (1976), we held that the giving of the notice required by ORS 484.715 is a condition precedent to the court's authority to decla......
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State v. Carlile
...less significant: it is only a warning and statement of the availability of remedial driver education programs. See State v. Wells, 27 Or.App. 537, 556 P.2d 727 (1976). A respectable argument can be made that the legislature may have intended more notice under ORS 482.570 than under ORS 484......