*1 August January en banc affirmed Argued resubmitted and submitted 19,2007 December OREGON, STATE OF Plaintiff-Respondent, v. RODRIGUEZ, E.
RUBEN Defendant-Appellant. Court County
Malheur Circuit 04065087C; A126339 P3d 471 *2 Leland R. Berger argued cause for With appellant. Anthony him on the brief was L. Johnson. Anderson, General, Attorney
Laura S. Senior Assistant the cause for With her on the brief were argued respondent. General, Williams, and H. Hardy Myers, Attorney Mary Solicitor General. filed the amicus curiae for
Jesse Wm. Barton brief Alan and Criminal Defense Gregory Oregon Lawyers Robben Association. Brewer, Edmonds, Landau, and Judge,
Before Chief Wollheim, Schuman, Haselton, Ortega, Armstrong, Rosenblum, Sercombe, Judges.
LANDAU, J.
Sercombe, J., dissenting.
LANDAU, J. At issue this case is the 809.235(l)(b) (2003), § l,1 amended Or Laws ch provides person’s driving which that a court order a must privileges felony revoked either if the is convicted of (DUII) driving while under the influence of intoxicants or “if is convicted of misdemeanor while under the influence of under ORS 813.010 a third intoxicants for added.) (Emphasis pleaded case, time.” guilty In defendant this happens to misdemeanor DUII. It his mis be fourth question demeanor DUII. The is whether ORS requires driving privileges. the court to revoke his The trial requires court concluded that the statute the revocation of driving privileges. appeals, defendant’s Defendant contend ing construing that the trial court erred in the statute. We agree with the trial court and affirm. August dispute. are In relevant facts not pleaded guilty subsequently
2004, defendant and was con- victed of DUII when he drove with a blood alcohol content of percent. previously of DUII in .27 1976 and He had been convicted *3 Oregon. He had convicted ofDUII also been in 1989 in California. sentencing, argued that,
At under the state 809.235(l)(b), required permanently the trial court was driving privileges. argued revoke Defendant defendant’s According apply defendant, the the statute does not to him. only applies person statute when a has been convicted ofmis- time,” and fourth such demeanor DUII “for a third this his agreed perma- conviction. The trial court with the state and nently driving privileges. revoked defendant’s
1The
amended in 2005. It now reads:
statute was
permanently
person’s driving privileges be
“The court shall order that a
person
felony driving
if
while under the influence of
revoked
the
is convicted of
if
of misde-
intoxicants in violation of ORS 813.010 or
the
is convicted
in violation of ORS
meanor
while under the influence of intoxicants
statutory counterpart
jurisdiction
a third or sub-
813.010 or its
other
for
sequent time.”
added).
809.235(l)(b) (2005)
party disputes
(emphasis
that the cur-
Neither
opin-
apply. All
in this
rent version of the statute does not
references to
statute
version of the statute.
ion are to the 2003
appeal,
that the
On
defendant renews his contention
apply
his fourth —and not his
statute does not
because this is
According
for misdemeanor DUII.
to defen-
third —conviction
meaning
plain
dant,
of the reference to a “third” means
only
prior
two,
two,
that there must be
convictions.
response,
In
that defendant’s
the state first contends
appeal
justiciable.
argues that,
is not
The state
under ORS
138.050(1),
pleaded guilty
a defendant who has
or no contest
may appeal only
pertaining
a limited
of issues
to the
number
argues,
In
case,
lawfulness of
sentence.
this
the state
driving privileges pur
trial court’s revocation of defendant’s
technically,
part
is,
suant to ORS 809.325
not
of a “sentence”
rejected
within the
of the statute. We
that conten
Nave,
tion in State v.
327-28,
On the the state contends that the trial court concluding applies. According was correct in that the statute applies state, the statute when there has been third plausibly apply conviction, which could either to a defendant prior who has two DUII convictions or to a defendant urges who has at least two such convictions. The state ter construction as the one that the the lat legislature likely more support, legis than not In intended. the state notes that the employed lature the indefinite article —“a third time”— ordinarily which is taken to be an indefinite determiner with an indefinite reference. The state also notes that defendant’s proposed produce implausible construction would result greater prior that a with a number of DUII convictions penalty. assuming would be entitled to a lesser Even that the ambiguous, statute contends, the state his tory interpretation pro makes clear that the that defendant poses is not what the intended.
Resolving parties’ dispute requires application an principles statutory of familiar construction. Familiar as they may are, it be worthwhile to review some of the basics. *4 object possible, First, the ascertain, the exercise is to if 174.020(l)(a) (“In legislature. intention of the the con pursue statute, struction of a a court shall the intention ofthe legislature possible.”). legisla if Second, the intention of the by examining language ture is ascertained of the statute sequential steps in three described in PGE v.Bureau Labor (1993). Industries, 606, 610-12, P2d 1143 At 317 Or analysis, the initial level of the we are to examine the words disputed of the statute in context to determine whether the provision “ambiguous,” provision is, is whether the is capable is, of more than one reasonable construction. If it we proceed legislative history, if and, then history to the ambiguity, we relevant
does not resolve that
resort to
emphasize
important
It
canons of construction. Id.
is
to
how
“ambiguous.”
little it
to demonstrate that a statute is
takes
Godfrey
Meyer
explained
Stores,
Or
As we
v. Fred
(2006):
(2005),
686, 124
den,
P3d 621
rev
In
is what the
intended
this
person having
misde-
the reference to a
been convicted of
question
precisely, meanor DUII “for a third time.” More
initially
there is more than one con-
is—at least
struction of that
—whether
“wholly implausible.”
provision that is not
The answer to that ordinary speech, ambiguous. In references statute is at least variety things. According sequences numeric can mean a ordinary meaning, Third New to the usual source of Webster’s 2002), example, Dictionary (unabridged ed for Int’l 2377-78 may “being adjective in a refer to number three “third” “being place series,” next the second in or or countable group “being series,” of three in a time,” or the last each among things. definitions —the middle other One of those *5 one —is consistent with defendant’s construction. proposed But the other two are consistent with the state’s.
That is not the surprising, as of numeric ambiguity references is a common feature of ordinary To a speech. pick do that one when tell “if silly example, you your child, you time, more are that you grounded,” admonition does not nec- mean that will essarily follow one —and grounding only one —offense. To cite another, to tell the child that he or she have “seconds” does not may necessarily mean that the child cannot have a third or fourth helping. The precise meaning the numeric reference on the context in it depends which employed.
More to the point, legislature references employs to ordinal numbers the same For way. example, 468.939(2) provides that the crime of unlawful air pollution in the first is a B degree felony. Class The statute on to goes say that, a second “upon conviction” of the offense within a five-year period, may court a impose $200,000 fine of addition to other sentence. The statute says nothing about subsequent convictions. It clear seems the legis- lature did not intend that of the availability additional fine to limited be to the second —and only second —convic- that, tion and a upon third or fourth conviction within the requisite five-year period, the offense reverts to the lesser sentence, and it does no violence to the to particular language read the statute understanding. See with that consistently 468.946(3) also a second conviction (“Upon for unlawful water in the pollution degree first within a five-year period,” a court a fine in may impose addition to other allowable sentence.).
So, to return to the wording 809.235(l)(b), there is nothing to a phrasing provision referring defendant a having been convicted of misdemeanor DUII “for third time” that means that the statute to necessarily applies a third —and the statute to only Reading third —conviction. to a third subsequent is, words, convictions in other apply not wholly implausible. course, is not determined reference
Ambiguity,
See,
County
Lane
e.g.,
of statute
isolation.
phrasing
(1997) (“[W]e
LCDC,
v.
569, 578,
Or
If resort to other ofthe stat- muddy precisely proverbial as serves to waters it referred to a defendant what the intended when having been convicted of misdemeanor DUII “for a third time.” *6 example, provision in the
For
another
same bill from
originated
disputed language in
which the
this case
refers
(emphasis
§
346,
ch
1
“the third” conviction. Or Laws
added). Specifically,
portion
ofthe
that was codifiedat
bill
813.400(2),
authority
pertaining
Depart
of the
driving privileges, provides
Transportation
ment of
to revoke
driving
that “a
convicted ofmisdemeanor
while under
subject
time[ ]
intoxicants for the third
influence of
driving privileges
provided in
revocation of
as
ORS 809.235.”
certainly
Id. It
is true that the use of the definite article often
signify
specific
is understood to
an intention to refer to a
object, e.g.,
Dept.
Transportation,
Inc. v.
Steelman-Duff,
(1996),
220, 227,
Or
P2d
which
tend to
958
would
support
referring
conviction,
in
that,
the notion
to the third
legislature
intended in that case to refer to the third—
sequence.
the third —in a
809.235(l)(b)
problem
is that ORS
does not
employ
phrasing.
employs
the same
It
article
indefinite
person having
“a”
its reference to a
been convicted “for a
Ordinarily,
third time.”
we assume that such differences
statutory phrasing
e.g., Dept.
See,
are intentional.
(2006)
Transportation
Stallcup,
93, 101, 138
v.
341 Or
P3d 9
(determining
that use of different
terms
real estate
appraisal
suggests that each was intended to have a
statute
meaning);
Glaspey,
558, 564-65, 100
different
State v.
337 Or
(2004) (stating
P3d 730
that use of different terms in assault
provision
statute —“victim” in one
and victim’s “child”
other). And,
other —means that
the same as the
one
not
point,
ordinarily
more to the
we
assume that the use of the
opposed
legal
article,
indefinite
as
to the definite article, has
significance.
e.g.,
Murphy,
See,
Carroll and
(2003) (providing
legislature
68,
provision original bill declares that applies persons the law “to whose third conviction of misde- meanor while under the influence of intoxicants occurs on or after the effective date” of the enactment. Id. To the extent that there are indeed differences between the ref- 813.400(2) erence in ORS to conviction for DUII “forthe third 809.235(l)(b) time,” on the one hand, and in ORS to such con- viction “for time,” a third other, on the it is not at all clear provisions provision which of the two the effective date refers employs way to, as it no article one or the other. nothing
In short, in the context forecloses the state’s referring construction of ORS is, that, in —that person having to a been convicted of misdemeanor DUII “for time,” third intended the statute to refer to having been convicted at least three times. As a result, it is necessary legislative history to consult the to determine *7 among competing which the constructions is the one that the likely most intended. legislative history
In view, our resort to the makes disposition question fairly easy. of that sure, To be there is nothing legislative history speaks directly in the that statutory issue of construction that we confront in this case. repeated purpose legisla- But the tion leave little doubt as to which statements as to the of the
interpretation
legisla-
the
likely
e.g.,
See,
ture most
intended.
State
Shaw,
v.
(2005) (examining legislative
586, 605-06,
In the same bill, of the Driving, principal supporters Drunk one explained: DUII have driven drunk people get stopped
“Most who for stated, they times, before are many previously as has been equates A third conviction for DUII therefore caught. influence than I would driving more incidences of under the driver, driver, think the drunk By about. the time the like to gets conviction, that has established habits a third in a crash. already injured have killed or someone may and * * * we are serious signal will send a clear This bill change In reducing drinking driving. and order about make our driving, and we must drinking attitudes about programs. and continue with educational tougher laws clear strong to receive a Second-time offenders need their third conviction warning consequences about pass after we this House bill.” (statement Pratt). of Bruce
Id. which City Eugene,
A for legislative analyst bill, testified that also supported DUII for “[ajnyone has convicted of misdemeanor who been disregard for the time has demonstrated a callous the third roadway. potential This has the safety of others on the bill from prevent people additional deterrent to to be an will, least, from the influence or at remove while under the driving while persist who road those individuals impaired.”
33 Judiciary, Apr E, Exhibit House Committee on 3, HB (letter Karpinski). 2003 from Seth T. legislative analyst governor’s advisory A for the com- support noting mittee on DUII also testified in bill, of the nearly people that, had been “convicted for the 4th or more times of under the influence of intoxi- cants,” of whom 58 were convicted under the current analyst similarly year, following law. The that, noted in the people “266 were convicted for more,” the 4th time or while approximately only percent, “143, or were convicted under felony the current Judiciary, F, law.” Exhibit House Committee on (letter Apr HB 3, 2003 from Gretchen McKenzie). go gist leg- We could on, but we think that the of the history islative tory is clear. In fact, there are tidbits of that his- tantalizingly Repre- that are close to the issue at hand: applying sentative Barker refers to the bill as a third “after representative governor’s advisory conviction,”and the ofthe actually people committee refers to who have been convicted added.) (Emphasis “for the 4th time or more.” not claim that much from the But we need history. It is sufficient to purpose observe that the ofthe bill, as reflected in statements quoted, legislature’s such as the ones that we have is the con- increasing penalties repeat cern with for DUII offenders. Taking purpose plain leg- account, into it seems that the proposed islature intended the construction of the statute proposed by Indeed, the state. the construction defendant purpose runs counter to the foregoing legislative history. of the statute as in the revealed assuming legislative history Even that the is not suf- ficiently illuminating legislature’s intentions, all that means is that we resort to canons of construction to resolve ambiguity. In our view, number of canons could be service, called into each of which would confirm our conclu- sions as to the intended of the statute. example, immediately
For
the absurd results canon
Vasquez-Rubio,
comes to mind. State
275, 282-83,
v.
(1996).
points out,
The canon
Stoneman,
536, 540
323 Or
mind. State v.
also comes to
issues
(1996);
App
Lanig,
154 Or
State v.
5,n
Finally,
that,
all
much-cited canon
when
there is the
likely
legislature
attempt
most
do what the
fails, we
to
else
thought
specific
Carlson
of the
issue.
have done had it
would
(1998).
ques-
Myers,
On that
213, 225,
“[Defendants] resort history is improper when of the text ‘plain’ or ‘unambiguous.’ “This and similar recited, formulations are often but in
practice they do not and should not confine the court to his- torically blind exegesis. When one dispute side to a over the meaning public of a urges law a court not to look at or consider presented by materials the other side for its reading law, this invites doubt whether the might materials show ‘plain that the meaning’ is not so *10 plain after all. That is the case here. also,
“In practice, rarely courts disputes see over inter- pretation when the opposing party possible cannot show a alternative reading words, which it claims to be cor- rect in context.”
(Footnotes omitted.) The court’s in Lipscomb observations apply with force equal arguments this case.2 809.235(l)(b)
In
that
asserting
the
is plain, the dissent places particular
reliance on the provi-
sions of other statutes that we
mentioned,
have
one of which
regard,
perhaps
In that
observing
174.020(l)(b),
it is
worth
that ORS
as
provides
amended in
now
that “to assist a court in its construction
aof
stat
ute,
party may
legislative history
offer the
of a statute.” As we noted in State v.
Rodriguez-Barrera,
56, 61-62,
App
den,
213 Or
159 P3d
rev
refers to provides that ofwhich and the other “the third time” DUII for 809.235(l)(b) apply portions to defen- the relevant effective date after the conviction” occurs “whose third dants provi- that those other insists The dissent of the enactment. legislature said ORS that, when the all doubt sions remove 809.235(l)(b) privileges required is that revocation DUII convicted of misdemeanor has been when a defendant really legislature meant was “for time,” what the a third “for (Sercombe, dissenting). App J., Or at 43 third time.” 217 very already explained, least, the however, at the have As we suggest phrasing some the statutes between differences really legislature intended. doubt about what emphasizes the fact that other stat- The dissent also phrase employ pertaining “third or subse- to DUII utes 813.010(6)(c),thereby giving e.g., rise quent conviction,” say legislature that knows how to an inference that to (Sercombe, App J., dis- Or at 43-45 it so intends. 217 when question senting). there are such exam- but that There is no ples however, there noted, As we have in the DUII statutes. legislature examples in which in other statutes are also employed phrasing in ORS that used similar has 809.235(l)(b) subsequent particular plainly or to refer to a although that the the bare fact that, Aside from conviction. permits phrasing legislature an has used such inference significant, it is to do so in ORS its failure conclusively thing suggest it demonstrates another e.g., wholly implausible. contrary interpretation See, that a (2005) 237, 242, 120 P3d Robison, 202 Or State v. (The phrasing employed certain that the fact permits that the an inference statute, another, not one omission was but say “[b]ut that the text cannot intentional, we *11 regard.”). conclusively speaks in that phrasing that the We conclude history legislative ambiguous and other that resort to but not err trial court did make clear that the construction aids to in require permanent interpreting revocation the statute to prior driving privileges mis- on his three based of defendant’s convictions. demeanor DUII
Affirmed.
dissenting.
SERCOMBE, J.,
majority’s
Oregon
2003,
The
of
construction
Laws
chapter
plain meaning through
346,
ofits
robs
statute
guise
creating ambiguity
wordplay.
of
from
The license revo-
only applies
person
[DUII
cation
a
sanction
“whose third
* * *
January
misdemeanor]
1,
conviction
occurs on or after”
majority
§
2003,
346,
2004. Or Laws
ch
4. The
reads this lim-
opposite
itation to include the exact
the sanction
—that
applies
to a
whose third DUII misdemeanor convic-
January 1,
tion occurs
through misapplication
2004. That result
reached
before
statutory
prin-
a
of
construction
ciples set out in PGE v.
Industries,
Bureau Labor and
of
(1993).
majority
610-12,
Or 606,
The substantive are what “for a 809.235(l)(b), by third time” means ORS as amended Oregon chapter 2003, 346, Laws 1, section and whether [DUII misdemeanor] defendant is a third “whose con January viction 1, occurs on or after” 2004, under Oregon chapter January 2003, Laws 1, section 4. Before 2004, the sanction for a third misdemeanor DUII conviction three-year suspension driving privileges. was, most, at 813.400(1) (2001), ORS amended Or ch 346, Laws 809.420(2)(c) (2001), § 1; ORS renumbered as ORS former (2003). 809.235(l)(b) (2001) time, 809.428 At that required person’s a court to order revocation of a driver’s only felony license on conviction of a DUII. Under ORS 813.010(5), felony DUII occurred when a defendant had years been convicted of DUII at least three times in the 10 before the current Thus, offense.1 before certain 813.010(5) felony defined the Class C offense of DUII as follows: “Driving felony while under the influence of intoxicants is a Class C if the defendant has been convicted while under influence *12 38 in a
fourth or in number DUII convictions resulted greater those that occurred within a driving revocation of privileges, time. of 10-year period Bill House Legislative Assembly adopted
The 2003 (HB) and added an additional occasion where a DUII 2885 driving resulted in the loss of permanent privi- conviction amended ORS 2003, Or Laws ch 346. The law leges. 809.235(l)(b) the italicized text: by adding person’s driving privileges
“The court shall order that a felony permanently person revoked if the is convicted of be under ORS driving while under the influence of intoxicants driving is convicted misdemeanor person 813.010 or if of under ORS 813.010 while under the intoxicants influence of 2 a third time.” for provisions. The law enacted two other relevant 813.400(2), HB relating Section 1 of 2885 amended ORS driving privileges by and revocation of suspension the italicized text: Transportation, by adding Department felony driving while under the person “A convicted of intoxicants, misde- influence of or a convicted of intoxicants driving meanor while under the influence of for time, driving privileges subject the third to revocation provided as ORS 809.235.” 1. 2003, 346,
Or Laws ch § of the law set out a second related Finally, provision of law changes applied: the class of to whom persons 809.235,811.182 and 813.400 “The amendments to ORS apply persons Act whose by sections 1 to 3 of this 2003 driving while under the third conviction of misdemeanor statutory counterpart in another or its intoxicants in violation this section years prior current jurisdiction in the to the date of the at least three times in a motor vehicle.” the current offense was committed offense and 2005, respects, Or Laws ch was amended in 2005 two version, 1, 436, appeal. In current the stat- of which is relevant to this its § neither reads, part, ute as follows: driving permanently person’s privileges that a be “The court shall order * ** under the misdemeanor while if the is convicted of revoked statutory counterpart or its in violation of ORS 813.010 influence ofintoxicants subsequent jurisdiction time.” a third or other for added.) (Emphasis influenceofintoxicants occurson or after the effectivedate [January 2004].” ofthis 2003Act § Or Laws ch 4. required
Thus, the 2003 law a license revocation order on conviction of a DUII time,” misdemeanor “fora third penalty *13 restated the occasion of that as one when the DUII applied pen- conviction time,” is “for the third and that new * * * alty only persons [DUII] “whose third conviction January appeal occurs on or 1,2004. after” The issues in this meaning are the of “for a third time” as used in the 2003 809.235(l)(b) question amendment to ORS and the related of meaning “persons of whose third conviction occurs [January 2004].” on or after meaning by applying
We determine the of statutes statutory construction framework set in PGE, out requires construing at 610-12. PGE court, a a statute, to legislature” “discern the intent of the from the statute’s text analysis, and context. At that first level of ers rules of construction of the “the court consid-
statutory text that bear directly legisla- on how to read the text.” Id. at 611. If the ture’s intent is evident from that examination, “further inquiry unnecessary.” Id. If the intent is clear, not “the court will then move to the level, second which is to consider legislative history inquiry legisla- to inform the court’s into tive intent.” Id. at “If, 611-12. after text, consideration of con- legislative history, text, and the intent may general unclear, remains ims then the court resort to max- statutory resolving construction to aid in the remain- ing uncertainty.” Id. at 612. majority, exposition
I differ from the
not in the
of the
to resolve the
application
formula,
familiar PGE
but in its
statutory
questions
appeal. my
construction
raised in this
In
meaning
view, the
of “third time” and “third conviction” can
be determined from the text and context of the statute.
inquiry
Therefore, the court should confine its
to the first
analysis.
Bridgeview Vineyards,
level of the PGE
State Land Board, 211 Or
In
Inc. v.
(2007),
251, 262,
for a third In the of conviction. more than one occasion it could refer to any could occur view, a “third time” conviction majority’s “for a third times, is convicted number of when on. Accord- time,” a fifth and so time,” time,” “for a fourth “for one of several any refers to majority, phrase ing “a third time” that conclusion because: convictions. It reaches convictions; number of mean one plausibly could with that is not inconsistent history of the statute majority’s interpretation and the phrase; drunk drivers. about public policy effectuates a sound better I not believe because do majority I differ with the to refer to more be construed reasonably that the can phrase view, can In my than one conviction. particular ** * *14 understanding time” once. That for a third be “convicted time, in is a conviction particular to refer to phrase, of of the 2003 and other meaning portions on its plain based single as a to that same conviction that refer amendments third for the “convicted being in time —as conviction after” a “occurs on or “third conviction” that time” and as the for to a conviction law does not refer time. The particular occur after that or the “third convictions” third time” “any that conviction a particular 2004. It describes January in time. lifetime, the third conviction during occurs a person’s of number to cover differently i.e., To read the statute — meaning. its plain convictions —distorts 809.235(l)(b) are not in ORS “third time” The words derivative of “third” is a Commonly, statute. by defined number “being is something three, and denotes root, in place to the second series,” next “being in countable three a or degree of a grade the second next to time,” “ranking or Int’l Third New Webster’s or authority precedence.” in 2002). ed (unabridged 2377-78 Dictionary majority that, The asserts of those definitions of pro- “third,” the “middle one” is “consistent with defendant’s posed construction. But the other two are consistent with the App statutory interpretation issue, state’s.” 217 Or at 29. The meaning however, is not the abstract of “third.” It is the meaning meaning of “third time.” The obvious of “third time” “being place is next context, second in or time.” In that “being “third time” does not mean in number three a count- “ranking grade able series” or degree next to the second of a or authority precedence.” or ordinary meaning time,” of “third as it refers conviction,” here to the “third third conviction in time. person’s marriage A fourth to a different not would qualify being third as married for “a time.” “Third by base” is the base that must be touched third baseball. No one would call home runner plate the “third base” you begin counting you your because could at If first base. tell may child that cookie, she have a “second” it does not invite a helping. third, fourth, or fifth disagree premise majority “[i]n
I with the that, ordinary speech, sequences references to numeric can mean a variety things.” partic- at A28. reference to a sequence always ular count a numeric means the count beginning. sequence from the “The third number” in a always single beginning number, the third from the of the sequence. It is when the reference refers to more than point sequence pertains one in the that “third” to more than “every ordinary one number, such as third number.” In speech, single then, a reference to the “third conviction” of a person or a conviction for “a third time” means the conviction that follows the first and second convictions in time. likely meaning
That is confirmed the context of guidance the statute. The first contextual Oregon chapter comes from Laws part applicability 346, section 4. That of the law sets out the changes consequences of a “third time” DUII convic- *15 changes “apply tion. It states that the persons to ORS 809.235 to driving whose third conviction of misdemeanor while under the influence of on or after intoxicants occurs [January 2004].” 1, provision presumably that new
That establishes the applied sanction could be to conduct before the effective date that of the law results a conviction afterwards and not just occurring arising to convictions from conduct after January presumed imple- 1, 2004. That intent could be application changes mented the to stated ORS “persons 809.235 to whose conviction ofmisdemeanor under the influence of occurs or after while intoxicants on added.) [January (Emphasis 2004].” There is no need to applicable refer to “third conviction”at all to make the law to Instead, conduct undertaken before the law’s effective date. any the law could have referenced “conviction.” conviction,” The use of “third rather than “convic- particular tion,” intent, reveals an additional and more an timing application intent to limit on the of the law based precludes of the “third conviction.” Section 4 of HB 2885 application 809.235 to a third convic- whose January appli- 1, 2004, and allows that tion occurred before to a whose third conviction occurred that cation after phrase “persons The whose third conviction occurs time. [January particular 2004]” or after and determinate. on It refers to a
single, particular in time. It conviction is not “persons at that same as whose fourth conviction” occurs phrase The construction of the is to time. reasonable 4 of refer to the third-in-time conviction. The intent of section change the law is to confirm the intended effect ofthe 809.235(l)(b), fortify that “for a third time” the intent means the third-in-time conviction. strongest argument a third
The state’s “for any sequence the third conviction in of convic- time” means in the of the indefinite article “a” tions focuses on the use partic- implies phrase. use “a” that “third time” is not sequence specific and could be a third time ular or my argument any previous view, In convictions. two specific con- “A third time” conviction still connotes weak. conviction, If intent to refer to more than one viction. was phrase or “for each third “for third time” would be time.” a third time” as used
We know that “for compan- single refers to a conviction because 813.400(2), Oregon change adopted Laws ion to ORS *16 chapter specifies 346, 1, section the conviction to be one for * * * provided (Empha “the third time as in ORS 809.235.”3 added.) parts ses The same “third time” is intended in both of the enactment. phrase use “for the third time” in the
changes 813.400(2), equation to ORS and its to the intended “provided of “for a third time” as in ORS 809.235(l)(b),” argument undercuts the force of the state’s 809.235(l)(b). that relies on the use of the “a” in word ORS part: “The” defined, (1) “2 a used as a functionword with a noun modified adjective by applica- an or an noun attributive to limit the * * *
tion of the modifiednoun beforea noun to limit its c—used as a functionword application specifiedby to that a succeeding clause, esp. sentence, element in the a subordinate prepositionalphrase, phrase[.]” or infinitive Webster’sat 2368-69. 813.400(2)
The word “the” in “the third time” ORS specific particular limits the “time” to the “third time”—a conviction. Under the terms ofthe statute, conviction for “the 813.400(2) thing third time” under ORS tion for “a third time” under ORS is the same as convic- 809.235(l)(b) (“the third 809.235”). provided time as in ORS In cases, both particular conviction is a one, the third conviction time. The context, however, that most illuminates the meaning of “third time” and “third conviction” comes from regu- the text of related statutes on DUII sanctions and the driving privileges. every lation of In other circumstance in chapters relating suspension ORS cation of 809 and and revo-
driving privileges
legisla-
or the DUII offense, the
consequences
tive intent to attach
to the second or third “or
subsequent”
just
DUII conviction is stated in
those words or
general
in similar fashion. Those statutes relate to the same
809.235(l)(b)
subjects
part
as ORS
and are
ofits context. See
(2003)
Murphy,
59, 68,
(using
See Carroll and
186 Or
ORS DUII); conviction” for a ORS subsequent son’s “third or 809.010(l)(b) on registration of vehicle (requiring suspension under the while subsequent charge a “second or 813.010(5) intoxicants”); (authorizing fel influence of DUII “at least conviction if defendant convicted of ony DUII to the date of the current years three times in the 10 prior 809.700(l)(b) a court to or offense”); (allowing impound on a conviction for a “sec a motor vehicle based immobilize DUII in violation of ORS charge ond or subsequent” 813.010).4 failure to describe context, legislature’s In that to “a third or sub as applying ambit to a conviction “for conviction,” rather than applying sequent *17 a and time,” distinguishing third can be assumed to be only a intentional choice.5 4 809.120(l)(b) (allowing suspension of ORS a court to recommend See also relating driving privileges subsequent” a or violation of ORS 818.040 of “second 809.280(7)(b) one-year suspension by limitations); (imposing weight a the ORS receipt subsequent” denying Department Transportation order on of a “second or of 809.407(2)(e) 809.260); juvenile driving privileges under ORS ORS for a convicted crossing (one-year suspension for railroad violations of commercial driver’s license years subsequent” three of two or more convic- if a “third offense occurs within or 809.413(6)(b) 120-day suspension offenses); (imposing separate a for ORS tions for subsequent” traffic violation if convictions arose conviction of a serious a “third or 809.428(l)(c) (imposing years); three- separate a incidents within three ORS out of subsequent
year
where the
suspension
I for a “third or
offense”
under Schedule
years);
separate
plus
within five
present
for
offenses occurs
offense
two convictions
809.428(2)(c)
subsequent”
three-year suspension
(imposing
a “third or
a
for
ORS
separate offense occurs within a
and a conviction for a
offense where that offense
809.600(1) (revoking driving privileges
offend-
five-year period);
for habitual
years);
within five
of “three or more” listed offenses
ers when a
is convicted
809.600(2) (revoking driving privileges
offenders who are con-
for habitual
five-year period).
listed offenses within a
victed of “20 or more”
5
legislature employs
incorrectly
references to
majority
that “the
The
asserts
of,
any
ways.
App
nor
at 29. I am not aware
in
number of
217 Or
ordinal numbers”
to,
statutory
any
reference to a
majority point
where the bare
the
instance
does
more,”
“first,” “second,”
“first or
“second or subse
“third” occurrence means the
or
majority
greater
The
notes the references
quent,”
number” occurrence.
or “third or
468.939(3) (crime
unlaw
in ORS
of
for a “second conviction”
to the enhanced fines
468.946(3) (crime
pol
degree)
of unlawful water
pollution
and ORS
air
in first
ful
only
“the
the
degree)
the additional fine to
second—and
to not limit
lution
first
penalty
App
in both statutes
29. The enhanced
217 Or
at
second—conviction.”
* * *
plain reading
year period.”
of
The
applies
within a five
to “a second conviction
greater in number conviction
augment
penalty
or
the
for a second
the statutes is to
years
time,
of an earlier conviction.
only
within five
if the conviction occurs
but
predicate
existed before
whether or not
convictions
would occur
That enhancement
third conviction
time.
five-year period.
could be the
The “second conviction”
imply
phrase
conviction”
“second
do not state or
But those statutes
companion
All
clues—the text of
of those contextual
809.235(l)(b) and the use of“third or sub
enactments to ORS
sequent”
effect in a
of related
to describe a different
number
point
a
convicted of
to a clear conclusion:
statutes —
a
a third time” under ORS
misdemeanor DUII “for
809.235(l)(b) when the conviction is the third conviction dur
ing
defendant,
the lifetime of the
no more and no less.
Because the
of the statute is clear from its text and
history
legislative
context, there is no need to resort to
analysis.
Rodriguez-Barrera,
inform the
See State v.
213 Or
(2007) (“If
App 56, 62, 159
1201,
den,
P3d
rev
Nonetheless, and based
on the
shades
dictionary meaning
majority jumps
“third,”
into this
analysis.
majority
second level of the PGE
I believe that the
Relying
sets the bar too low.
v. MVD,
on Owens
319 Or
(1994),
Godfrey
Meyer
268, 875 P2d
Stores,
v. Fred
(2005),
687, 124
den,
P2d 621
rev
State,
478,
(1980),
1,
(1981),
aff'd,
1241
46 Md
418 A2d
290 Md
construction of “convicted
for a third time” as not
“wholly
dictionary
implausible”
vagaries
than the
def
Employment
inition of “third.” As the court noted in Steele v.
(1996),
Department,
App 105, 113-14,
143
particular subject purpose statute. The and together statutory language statute, of the surrounds word with the array question, of defi- narrow go nitional choicesthat dictionaries alone affordand far in identifying meaning the intended ofthe wordas used in the statute.” Similarly, County, we observed DLCD v. Yamhill (1997):
App 367, 372-73, P2d linguistictenability profferedinterpretation
“[T]he statutory ofa ofa interpretation ‘plausible’ term doesnot make the interpretation linguistically sup- if a different that is also portable decisively purpose more consistent with sense and surrounding language.”
ofthe statute and its 809.235(l)(b), The actual text of ORS its “surround- every ing language” Oregon chapter Laws statutory chapter other sanction for a DUII offense ORS point to a certain conclusion that the license revocation applies sanction to the third conviction in time. If resort analysis to the second and third levels of the PGE is excused arguably here, because “third” can refer to more than one thing every contexts, in other then almost statute can be dis- linguist produce uncertainty sected a clever some history. inquiry and, thus, to allow into statutory analysis construction then becomes much less leg- rigorous. Many meanings of a statute can be ascribed testimony through islative or discovered canons of construc- judi- that often amount to after-the-fact rationales for a tion cially preferred policy. judicial The risk of amendment of a *19 any uncertainty mean- statute becomes more acute when ing justifies application of the second and third tiers of the justification depend that on Instead, PGE formula. should statutory multiple the existence of constructions of the text purpose that are consistent with the sense and ofthe statute surrounding language. and its That test is not met here. assuming, argument, Even for the sake of that 809.235(l)(b) legislative history examination of the of ORS is justifiable, it limited has relevance this case. Where one likely, given context, construction of statute is and another is its text and merely plausible, likely meaning the should be preferred by legislative history a court unless the of the stat- clearly merely plausible meaning ute shows that the was Assuming majority’s intended. construction of ORS 809.235(l)(b) plausible it because is consistent with the purpose surrounding sense and guage, of the statute and its lan- legislative history ofthe statute does not vindicate majority nothing that construction. The admits that “there is legislative history speaks directly specific in the statutory issue of construction that we confront in this case.” at 31. The obvious intent to increase penalties repeat for certain DUII offenders and to remove roadways imple- those offenders from the earlier in time is 809.235(l)(b) mented no matter how ORS is construed. It is speculative specific infer more intent and to formulate 809.235(l)(b) meaning conjecture. the Because the the based on that legislative history particularly support does not majority’s 809.235(l)(b), construction of ORS the statute likely meaning should be construed to effectuate its —that occurring January the “third time” conviction “on or after” occurring the third in time conviction on or after that date. majority proceeding errs in further to the third analysis. legislative history
level ofthe PGE Unless sheds likely meaning statute, doubt on the of a an alternative merely plausible that is should not be advanced through application judicial of canons of construction. The may uncertainty among compet- canons be useful to resolve ing merely plausible, constructions of a statute that are but likely meaning not to overcome of statute. legisla- made I do not view the classification suggestive of consti- as absurd or
ture in ORS tutional persons difficulty. apply to The 2003 law does not *20 January prior 1,2004, to or more DUII convictions with three likely by preexist- covered offender is because four-time felony penalty. ing The 2003 law license revocation DUII felony penalty expressly kept DUII license revocation consequences preexisting place. for a The retention of the felony, certain four or revocation for DUII greater license perpet- proximate time, that are DUII convictions preexisting policies implemented DUII fel- uates the ony goes permanent revocation of on, time law. As privileges reduce the offenders would for all new third-time persons apply opportunity or with four the sanction more DUII convictions. leg-
Admittedly, had the have been cleaner it would greater imposed for those four or also the sanction islature qualify do not as fel- conviction offenders who number DUII felony ony the DUII text But the retention of offenders. language referencing and the addition of express plainly only particular third-time a nar- convictions I to construe stat- intent. see no reason rower ute ferent construction can be likely meaning simply differently dif- because a than its
barely squeezed the words of from application construed ofthe statute as so statute, and the tidy DUII offenders or would more or harsher to would be majority preference of this court. suit the better joins in this dissent. Wollheim, J.,