468 P.3d 964
Or. Ct. App.2020Background
- Defendant (native K’iche’, speaks some Spanish; limited English) was arrested for DUII, failed a breath test, and an implied-consent form was completed indicating a 90‑day suspension effective 30 days after arrest.
- Officer McCarver testified he read Section I of the implied‑consent form (the rights/consequences page) aloud in English before the test and that he provided the two‑page form to defendant; defendant testified he was not told his license was suspended and did not receive the form.
- Defendant was later charged with criminal driving while suspended (DWS) and asserted an ORS 811.180(1)(b) affirmative defense that he had not received notice of the suspension because any oral notice was given in English, a language he did not understand.
- At trial the court refused defendant’s requested Mullane‑style jury instruction on “notice” (including an ‘‘opportunity to present objections’’ element) and limited argument about the language barrier; the jury received the standard statutory instruction and convicted defendant of DWS.
- On appeal, the court reviewed whether excluding the language‑barrier argument and denying the requested instruction were legal errors and whether any error was harmless.
Issues
| Issue | State’s Argument | Sanchez‑Cacatzun’s Argument | Held |
|---|---|---|---|
| Whether defendant could argue to the jury that oral notice in English (untranslated) meant he did not "receive notice" of the suspension under ORS 811.180(1)(b) | The affirmative‑defense inquiry is limited to whether defendant received the written notice (the implied‑consent form); oral translation complaints cannot collaterally attack the statutory notice | Actual notice is required; oral English notice that defendant did not understand was inadequate under Mullane due‑process principles | No reversible error: excluding that argument was harmless because the officer’s oral statements (Section I read before the test) did not state that defendant’s license was suspended—only the post‑test form did, so a language issue in the pre‑test oral reading could not negate notice of suspension |
| Whether the court erred in refusing defendant’s requested jury instruction defining adequate notice as one that would "apprise" and "afford an opportunity to present objections" | The statute’s "notice" requirement does not incorporate a right to an administrative hearing; the requested instruction improperly conflates notice and hearing rights | "Notice" should be defined by the Mullane due‑process standard (apprise and afford opportunity to present objections) | Affirmed: requested instruction was legally incorrect because it imported a hearing/opportunity‑to‑be‑heard element not contained in ORS 811.180(1)(b); court properly refused it |
Key Cases Cited
- Mullane v. Central Hanover Bank & Tr. Co., 339 U.S. 306 (established the federal due‑process notice standard)
- State v. Click, 305 Or. 611 (Oregon decision recognizing DWS is strict liability but allowing an affirmative defense for lack of notice)
- State v. Gibson, 338 Or. 560 (harmless‑error standard: affirm if little likelihood the error affected the verdict)
- State v. Cabanilla, 351 Or. 622 (explaining the purpose of pre‑test implied‑consent warnings is to coerce test submission, not to teach statutory law)