STATE OF OREGON, Plаintiff-Respondent, υ. JOSE SANCHEZ-CACATZUN, Defendant-Appellant.
Washington County Circuit Court 17CR01224; A165184
Court of Appeals of Oregon
Argued and submitted January 17, 2019, affirmed June 17, 2020
304 Or App 650 (2020); 468 P3d 964
Defendant appeals a judgment of conviction for criminal driving while suspended or revoked. Defendant assigns error to the trial court‘s refusal to let him argue to the jury that he did not receive adequate notice of the suspension because the oral notice that he received of the suspension was given to him in a language that he did not understand. Defendant also assigns error to the trial court‘s refusal to provide a jury instruction that would have defined “notice” for purposes of
Affirmed.
Eric Butterfield, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Christopher A. Perdue, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Powers, Presiding Judge, and Egan, Chief Judge, and James, Judge.
EGAN, C. J.
Affirmed.
EGAN, C.
Defendant appeals a judgment of conviction for criminal driving while suspended
We begin by providing a brief overview of the relevant statutes to provide context to the parties’ arguments. When a “person *** operates a motor vehicle upon premises open to the public or the highways [in Oregon, the person] shall be deemed to have given consent, subject to the implied consent law, to a chemical test of the person‘s breath” if the person is arrested for driving under the influence of intoxicants (DUII).
“if a breath test under this section discloses that the person, at the time of the test, had a level of alcohol in the person‘s blood that constitutes being under the influence of intoxicating liquor under
ORS 813.300 and the person has been informed of rights and consequences as provided underORS 813.130 , the person‘s driving privileges are subject to suspension ***”
Before the breath test is administered, the person “shall be informed of [the] [rights and consequences] as described under
DWS is a strict liability offense—the statute does not require proof of аny culpable mental state—but “drivers who were not notified of the suspension may raise an affirmative defense under
“The defendant had not received notice of the defendant‘s suspension or revocation or been informed of the suspension or revocation by a trial judge who ordered a suspension or revocation of the defendant‘s driving privileges or right to apply.”
Because the notice of intent to suspend form is particularly relevant to the analysis in this case, we set out the form in some detail below. The notice of intent to suspend form, or Implied Consent Combined Report, is a standardized, two-page form. The first page of the form provides information that, as relevant to this appeal, if the person has failed the breath test, the person‘s “driving privileges will be suspended at 12:01 A.M. on the 30th day after the date of arrest.” The first page also indicates the reason for the suspension (breath test refusal or failure) and the duration of the suspension. The second page of the form conveys the informatiоn that is required under
The only relevant part of the second page of the implied consent form is Section I, which is further classified by subsections (a) through (i). Those subsections include information about how a person can fail a breath test, that the person‘s license is “subject to suspension” if the person fails a breath test, and that, if the person fails a breath test, the person is entitled to a hearing to challenge the suspension before the suspension takes effect and the eligibility requirements for a hardship permit. The rights and consequences related to the license suspension on the second page of Section I of the form read:
“SECTION I (Read to driver in ALL cases)
*****
“(c) Your driving privileges will not be suspended if you submit to any test requested and do not fail. If you refuse a test or fail a breath or blood test, your driving privileges are subject to suspension for each test refusal or failure. The outcome of a criminal charge for driving while under the influence of intoxicants will not affect the implied consent suspension(s). Suspension for refusing a test is substantially longer than suspension for failing a test.”
(Boldface and uppercase in original; emphasis added.) The purpose of informing the person of the rights and consequences of failing or refusing a breath test before it is administered is to “coerce a driver‘s submission to take the tests; it is not to inform the driver of the specifics of the law.” State v. Cabanilla, 351 Or 622, 633, 273 P3d 125 (2012).
We now turn to the facts, which, unless otherwise noted, are undisputed. Defendant‘s native language is K‘iche‘, and he also speaks Spanish. Defendant‘s comprehension of and ability to speak English is limited.
On October 29, 2016, Officer McCarver arrested defendant for driving under the influence of intoxicants. Defendant failed a breath test, and his license was subsequently suspended. In December, Officer Wolf stopped defendant for a traffic violation and learned that his license was suspended. Defendant was subsequently charged with criminal DWS pursuant to
Before trial, defendant filed a notice of intent to rely upon the affirmative defense that he did not receive notice that his license was suspended because he received the notice in English, a language that he did not understand.
The state objected to defendant‘s special instruction and his request to argue lack of notice based on the language barrier. The state argued that, because defendant‘s affirmative defense based on lack of notice was only available if defendant did not receive the implied consent form,
At trial, the factual dispute between the parties cеntered on whether McCarver provided defendant with either verbal or written notice that his license would be suspended because he failed a breath test. McCarver testified that, after defendant was arrested for DUII, McCarver transported defendant to the jail and asked defendant if he would take a breath test. Before administering the test, McCarver read “[(a) through (i)]” of Section I on the second page of the implied consent form.5 McCarver read Section I on page two of the form “verbatim” in English.
Defendant failed the breath test and, as a result, McCarver filled out page one of the implied consent form, also in English, indicating that defendant had failed a breath test аnd that his license would be suspended at 12:01 a.m., on the 30th day after the date of arrest, for a period of 90 days.
McCarver testified that he physically provided both pages of the implied consent form to defendant. McCarver stated that he did not remember whether he had physically handed defendant the form, but he was “absolutely sure” that he had “provided it” to him. McCarver testified that, when an arrestee is in handcuffs, he “bring[s] the form over to them and *** explain[s] what it is and that it was the form that [he] had just read to them a few minutes prior,” and that he would be placing it with their property that gets placed in a bin. McCarver also noted in his report documenting the incident that he had “provided [defendant] with a copy of the Implied Consent form.”
Defendant, on the other hand, testified through an interpreter that McCarver did not read the implied consent form to him, tell him that his driver‘s license would be suspended for 90 days at 12:01 a.m. on the 30th day after the date of his arrest, or show him any form indicating that his license would be suspended. Defendant testified that the only documents that he received when he left the jail were “a white piece of paper that said the date [he] had to go to court” and a paper that “stated the balance of the money on *** the card” they gave him, which included the amount of money he had with him when he arrived at the jail.
Although the trial court had ruled that evidence оf the language barrier issue was not admissible, on direct examination, the state elicited testimony from Wolf that there had been “a language barrier” between Wolf
During closing arguments, defendant explained that the only issue that the defense was contesting was whether defendant had received notice that his license was suspended. In summarizing the evidence, defendant argued that notice was insufficient because McCarver had read the implied consent form to defendant at 3:30 a.m., and he highlighted the conflicting evidence on whether McCarver had physically given defendant the written notice of intent to suspend. Defendant then argued:
“I think it‘s also important that we look at another reason to doubt, which is going to December 30th, the second time that Mr. Sanchez-Cacatzun was arrested. You heard Officer Wolf testify, and you heard how there were language barriers.
“*****
“You can use your common sense and reason to consider those language barriers in determining whether Mr. Sanchez-Cactzun ever—
“*****
“*** [H]ow that could impact the [inaudible] in this case.”6
The jury was given the standard jury instruction for the affirmative defense of lack of notice, including when the affirmative defense was not available, which largely mirrored the language of the statute. The jury convicted defendant of driving while suspended.
On appeal, defendant argues that the trial court erred in failing to give defendant‘s requested jury instruction and limiting defendant‘s argument because notice under
The state disagrees that the statute requires actual notice, contending that we need only look to subsection (2) of the same statute for evidence of what “notice” in subsection (1) means. And, under
The state disagrees that the statute incorporates the due process standard for notice. The state contends that, nonetheless, due process does not require the state to translate notice of license suspensions into a language that the person understands.8 The state also argues that, even if the court erred, any error was harmless because defendant was nonetheless able to аrgue the language barrier issue to the jury.
As a preliminary issue, we understand defendant to be arguing only that the term “notice” in
We begin by addressing whether the trial court erred in prohibiting defendant from arguing to the jury that he did not receive adequate notice of his suspension due to the language barrier. Generally, we review a trial court‘s ruling to limit argument for abusе of discretion. State v. Fletcher, 263 Or App 630, 631, 300 P3d 235 (2014). However, when the court‘s decision to limit argument is based on a legal determination, as it was in this case, we review the court‘s decision for legal error. See State v. Rogers, 330 Or 282, 310-12, 4 P3d 1261 (2000) (applying legal error standard of review instead of abuse of discretion when challenge was to the trial court‘s legal ruling to exclude evidence and explaining that discretion “refers to the authority of a trial court to choose among several legally correct outcomes. If there is only one legally correct outcome, then ‘discretion’ is an inapplicable concept“); State v. Hunt, 270 Or App 206, 210, 346 P3d 1285 (2015) (“Statutory construction presents a question of law *** which we review for legal error[.]” (Citatiоns omitted.)); see also Rogers, 330 Or at 312 (“If the trial court‘s decision was within the range of legally
The dispute between the parties centers on the meaning of the phrase “received notice” under
Under Article VII (Amended), section 3, of the Oregon Constitution, an appellate court must affirm a conviction, notwithstanding any error, if there is “little likelihood that the particular error affected the verdict.” State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). The court‘s inquiry
“must focus on the possible influence of the error on the verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial and compelling.’ *** That inquiry requires us to examine the nature of the error that occurred below and the context of that error. *** If the particular issue to which the error pertains has no relationship to the jury‘s determination of its verdict, then there is little likelihood that the error affected the verdict.”
State v. Gibson, 338 Or 560, 576, 113 P3d 423 (2005), cert den, 546 US 1044 (2005) (citations omitted).
In this case, the nature of the error alleged is that the trial court erroneously prevented defendant from presenting an argument to the jury. Specifically, defendant sought to argue that the affirmative defense of
The problem with defendant‘s argument is that it is based on an incorrect premise—that the oral information that the officer gave him could constitute “notice” under the statute that defendant‘s license was suspended. However, the record shows that the information that the officer gave to defendant orally did not include the fact that defendant‘s license was suspended.
Before administering the test, McCarver testified that he read in English (a) through (i) of Section I of the second page of the implied consent form. Regarding the license suspension, that form states only that a person‘s license is “subject to suspension” if the person fails a breath test. That oral information did not purport to inform defendant that he had failed the breath test and, consequently, that his license had been suspended, nor could it have. As McCarver testified, and as
Further, nothing in the record establishes that, after defendant had failed the test, McCarver orally told him that his license would be suspended. In discussing whether he had physically handed both pages of the implied consent form to defendant, McCarver stated that he did not remember whether he had physically handed defendant the form, but he was “absolutely sure” that he had “provided it” to him. McCarver testified that generally he will bring defendants the form and will “explain what it is and that it was the form that [he] had just read to them a few minutes prior.” Nothing about that testimony indicates that he orally conveyed to defendant that his license was suspended as a result of failing the breath test. Although McCarver stated that he generally tells defendants “what [the form] is,” that information could have included any or all of the information in the form. For example, McCarver could have told defendant that he
Defendant sought to argue that, becаuse it was in English, not Spanish, the oral information from the officer did not constitute adequate notice of the license suspension under the affirmative defense statute. Defendant does not contend that the form should have been in Spanish. Defendant also does not argue that the oral information that the officer provided was insufficient because it did not include information that defendant‘s license was suspended. Defendant argues only that the lack of translation of the officer‘s spoken English into Spanish meant that he lacked notice of the suspension. But the lack of translation could not cause a lack of notice under these circumstances, because, even if the officer‘s spoken English had been translated into Spanish, it still would not have notified defendant that his license had been suspended. Consequently, even if defendant had been able make that argument to the jury, it would not have advanced defendant‘s affirmative defense based on lack of notice. Because defendant does not challenge the sufficiency of the notice afforded by the form or the lack of notice afforded by the officer‘s oral statements—regardless of whether they were in English or in Spanish—defendant could not prevail on his affirmative defense.
For purposes of the affirmative defense, the issue the jury was asked to decide was whethеr defendant had “received notice” of his license suspension under the affirmative defense statute. However, the oral information that the officer provided included only generalized information about a person‘s rights and consequences as required by
We turn to defendant‘s requested jury instruction, which we review for legal error. State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). “A party is entitled to a jury instruction on its theory of the case if the requested instruction correctly states the law, is based on the operative pleadings, and is supported by the evidence.” State v. Williamson, 214 Or App 281, 285, 164 P3d 315 (2007), rev den, 343 Or 554 (2007). We view the facts in the light most favorable to defendant. State v. Oliphant, 347 Or 175, 178, 218 P3d 1281 (2009). “There is no error if the requested instruction is not correct in all respects” or “if the substance of the requested jury instruction, even if correct, was covered fully by other jury instructions given by the trial court.” Hernandez v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998).
We start by сlarifying what is not in dispute. It is undisputed that defendant‘s proposed jury instruction was based on the operative pleadings, there was evidence in the record to support giving that instruction, and no other jury instruction given covered defendant‘s requested instruction. Thus, the only issue for us to resolve is whether defendant‘s jury instruction correctly stated the law under
“Adequate notice is notice that under the circumstances and conditions would apprise the affected individual of an impending action and afford them an opportunity to present their objections.”
Defendant argues that the trial court erred in refusing to give his requested jury instruction because notice under the affirmative defense stаtute must be “reasonably calculated, under all the circumstances, to apprise the defendant of the existence and pendency of the action.” For the following reasons, the trial court did not err in refusing to give the instruction.
There are two components to procedural due process: notice and an opportunity for a hearing. See Mullane, 339 US at 313 (“[T]he Due Process Clause *** require[s] that deprivation of life, liberty or property by adjudication be preceded by notice and opportunity for hearing appropriate to the nature of the case.“). Though the right to a hearing is interrelated to having received adequate notice, those rights are distinct. See Id. at 314 (explaining that the “fundamental requisite of due process of law is the opportunity to be heard[, which] *** has little reality or worth unless one is informed that the matter is pending and can choose for himself whether to appear or default, acquiesce or contest.” (Internal quotations and citation omitted.)).
Here, defendant‘s argument—that the officer‘s oral communication of his license suspension in a language that he did not understand was not adequate notice—is based entirely on the sufficiency of the notice. However, defendant‘s requested jury instruction includes both components of the procedural due process rights—notice and the opportunity for a hearing.
As noted above,
“[t]he defendant had not received notice of the defendant‘s suspension or revocation or been informed of the suspension or revocation by a trial judge who ordered a suspension or revocation of the defendant‘s driving privileges or right to apply.”
The second half of defendant‘s requested jury instruction, which states that a person must be “afford[ed] *** an opportunity to present their objections,” encompasses the right to a hearing. However, defendant provides no argument or legal authority to suggest that “notice” for purposes of
Affirmed.