State v. Stroup

185 1980, 9, Argued and submitted October affirmed December rehearing January denied OREGON, STATE OF Respondent, v. STROUP, LEE

RANDY Petitioner. 27010)

(NO. 78-32999, SC CA P2d

186-a Attorney, Baldwin, Elizabeth A. Staff Public Defender County, Eugene, argued Inc., Services of Lane the cause petitioner. and filed the brief for Bradley, Attorney General,

John C. Salem, Assistant argued respondent. the cause for him on the brief With was Attorney Redden, James A. General, Barrie, L. and Walter General, Solicitor Salem.

TONGUE, J.

TONGUE, J.

Defendant was convicted of a motor vehicle driving in viola suspended, while his license had been operator’s 487.560CL).1 tion of ORS He Court of appealed contending, among things, other the evidence Appeals was state support insufficient his conviction had failed to the Motor Vehicle Division had prove mailed to the defendant that his previously notice operator’s required by license had been its suspended, rules, 482.570,2 own by ORS and also as a matter of con process. stitutional due it was contended the state that response, by 487.560(1)

under the provisions of ORS it had the burden (1) in its case that defendant opening was (2) driving upon highway and that at the time his license was suspended; under provisions ORS 487.560(2)(b) it defense, is an affirmative by to be proved defendant, that he had not received notice of his suspens ion,3 that, event, in any of due requirements process 487.560(1) provides: person "A commits the crime of if he drives a to, highway during period permit

motor vehicle when his license or right apply drive a motor vehicle or his for a license to drive a motor vehicle * * suspended by by in this state has been a court or the division provides: ORS 482.570 division, required, suspends, "When the as authorized revokes or right apply vehicles, operate cancels a license or the for a license to motor give person right shall notice of such action to the whose license or is affected. and, The notice shall state the nature and reason for the action in the case of a suspension, whether it was ordered a court. Service of the notice is accomplished by mailing either the notice certified mail restricted delivery, receipt requested, person’s return to the address as shown records, or, by personal division service in the same manner as a summons is served in an action at law.” 487.560(2) provides: (1) prosecution section, "In a under subsection of this it is an affirmative defense that: ^[******] "(b) The defendant had not notice received of his or revoca- (c) required by provided paragraph

tion as ORS 482.570 or in the manner (3) subsection of this section.” this were satisfied because the license of defendant had for "failure to in court” under ORS suspended appear been a Uniform Traffic receiving by 484.2104 after notice 484.150(7), Citation, to the effect required by as then subject if he failed to in court his license was appear defendant’s The Court of affirmed suspension.5 Appeals peti conviction without We allowed defendant’s opinion. the of the importance questions tion for review because of by conflicting raised these contentions. provides: ORS 484.210 "(1) hearing, pursuant requests If the defendant or if to ORS 484.220 had, hearing fix a date and time for the court directs that a be the court shall and, waived, hearing days in unless notice is shall at least five advance of hearing The mail to the defendant notice of the date and time so fixed. hearing warning appear notice shall set forth a that for failure to for the subject deposited defendant’s license is unless bail in the amount set in the summons. "(2) appear hearing place If the at the time and defendant fails to for the by deposited, may notify fixed the court court and no bail has been appear. Motor Vehicles Division of the defendant’s failure to In the notifica- certify given prescribed

tion the defendant as the court shall that notice was (1) by appear subsection of this section and that the defendant failed to for the $5, hearing. notification, Upon receipt together of such with a fee of suspend period. If the division shall the defendant’s license for an indefinite court, appearance defendant thereafter makes his before the the court shall notify thereupon the division of the fact and the division shall terminate pursuant ordered this the court to subsection. Notifications prescribed by the division shall be in a the division. A form any subsequent ordered under this section shall not be used the division in consideration under ORS 482.450. the defendant’s record "(3) section, meaning given As used in this term license’ has the ORS 482.010.” 484.150(7) provided: As of the time of defendant’s arrest person "The summons shall also contain a notice to the cited that complaint will filed. The reverse the summons shall contain the side of following: "(a) substantially A form as follows: "READ CAREFULLY you if "You must in court at the time mentioned in this citation charged any following are offenses: driving. "1. Reckless Driving

"2. intoxicants. while under the influence of Leaving "3. the scene of an accident. Operating your "4. driver’s license was a motor vehicle while

or revoked. Facts Record state notice in Prior to trial defendant gave defense of lack of of his intention to on the writing rely A and the case was suspension. jury notice of was waived the state offered the tried to the court. its case opening on October testimony police of a officer who testified that the steering he observed defendant over slumped lot; a car in a defendant parking wheel of that he asked identification, and that then an ex- produced driver’s license address. pired with an incorrect

A tape recording exchange of an between defendant and the officer was admitted into evidence in the Attempting police

"5. to flee or elude a officer. offense, you charged any you "If are with MUST do ONE of the OTHER following: Appear request "1. in court at in this summons and the time mentioned hearing. hearing. The court will then set a time for a summons, together money "2. Mail to the court this with a check or order in the amount of the bail on the side of this summons and tell indicated other you request hearing. the court This summons and bail reach you appear before the If court you time when this summons court. side, hearing, your your explanation explain don’t want a but wish to send your explanation the summons and with bail. The court will then consider bail, may your it, your explanation part forfeit or and on basis what the officer tells the court. Sign court, plea guilty "3. below and send this summons to the together money with check or order in the amount of bail indicated on the side, your you may you explain of this other side summons. If send wish your explanation guilty plea, bail. summons and "This summons and the the time bail must reach the court before when this requires you summons in court. you already given security your appear- "NOTE: If have bail or other for ance, proceed any as mentioned above but do not send in additional sum purpose determining grounds revoking For the bail. whether exist for license, suspending your operator’s or chauffeur’s an unvacated forfeiture equals a bail conviction. INSTRUCTIONS, "IF YOU FAIL THE TO COMPLY WITH THESE IS AUTHORIZED A FOR YOUR ARREST COURT TO ISSUE WARRANT BY THE TO CAUSE YOUR OR NOTICE TO MOTORVEHICLE DIVISION SUSPENDED, OPERATOR’S TO BE OR BOTH. LICENSE NOTICE, CASE, REQUIRE "THE YOU COURT MAY ANY AFTER IN A TO APPEAR FOR HEARING.” if officer asked defendant case in chief in which the state’s mail; told "Yeah” being his that receiving upon he had been (his) that if he was "aware the officer asked defendant (was) said "No.” and that defendant license suspended,” from that he had moved told the officer (1978); he in March or Eugene April Springfield changed on having to” the address "just got never around was he had not done so why his license and that the reason It days a week. was working he had been six to seven public on a that defendant had been stipulated street. copy in evidence a certified

The state offered dated August which was suspension, order effective "suspended, stated that defendant’s license was * ** 1978) based an indefinite period (August * * * court,” may request and that "You failure to appear representative before a on this order hearing attached to Division.” The certificate of the Motor Vehicles copy, a true but it was copy certified 10-07-78 in full effect on records reveal this was "Our as recorded address of record and was mailed to the official Defendant’s records.” the Motor Vehicle Division on St., order, Main Gen. address, in the "4980 as stated was objected Defendant Del., Oregon, 97477.” Springfield, had that no evidence ground order on the mailed as it had been offered the state to show been was overruled. objection That by ORS 482.570.6 en- also offered in evidence The state mailed order had been suspension velope to show order. Defendant as shown on that to defendant’s address The address. the correctness objected, challenging relevant until exhibit was not court then ruled that not he had defense that his affirmative put defendant on then withdrew The state suspension. notice of the received that exhibit. judg- for a rested, moved the state defendant

When no evidence there was on the ground ment of acquittal defendant as order had been mailed the suspension rule, statute, due process agency required by 6 note 2. provisions see For the 487.560(2) ground That that ORS was unconstitutional. motion was denied. wife

Defendant’s then testified that she and Street, had "had Main defendant never an address of 4980 Springfield, suspension Del., Ore.,” Gen. as shown on admitted, however, order. She 4980 Main had at lived Springfield, Oregon.

Street also Defendant offered evidence a motor vehicle registration showing an defendant’s name address (without Springfield, Oregon, Street, Main Delivery). reference to an General The court sustained objection by ground the state on the of relevance. Defen- testify. dant himself did not guilty,

The trial court found the defendant to be proved. and held that the affirmative defense had not been Judgment, Defendant then filed a Motion Arrest which was denied. Contentions

Defendant’s suspension Defendant contends that a of a driver’s license under ORS 487.560 not valid has until notice required by been mailed as ORS 482.570. Defendant also proof necessary contends that in order for prove the state to its chief; case in that failure of the state mailing proved of notice it has not means that necessary "driving an element the crime while sus- pended” and that the defendant must therefore be found guilty. urges separate grounds support Defendant three (1) those contentions: Motor Vehicles Division must (2) comply agency require with rules, notice; its which comply statutory provi Motor Vehicles Division governing require it, sions which notice of agency and failure to in do so makes action (3) process requires suspen valid; and due of a notice sion be mailed before is valid.7 contentions, sepa- Defendant also some made other related discussed rately below. Entry the an

1. Agency Require No Rules Notice of of is Valid Suspension Order the Suspension of Before Divi the Vehicles Defendant contends that Motor aof regulations require suspension sion that notice of to those be and that failure follow provided driver’s license However, rule a the cited rules makes invalid. suspension defendant, 137-03-000, to OAR does not require us That of rule entry notice of the an order of suspension. provides:

"(1) A case contested exists whenever:

"(a) agency enabling provision A constitutional or an action, hearing act or "(b) or agency suspend The to revoke has discretion * * right privilege person, or a of a *. "(c) agency give parties all in a shall notice to * * * case. contested

"(d) regis- byor personally The notice shall be served tered or certified mail.” notice of a contested

The rule states (one be sus might hearing right privilege which a or revoked) pended given. be In this case the driver’s license appear” of this defendant was "for failure to suspended might license court. such case notice that the driver’s provided be for to be suspended appear” "failure would 484.210, as dis of a notice to ORS mailing pursuant of require cussed below.8 The rule does not of and there entry notice after the an order of suspension of that notice fore does not defendant’s contention support of must be mailed to entry suspension of order valid. order for driver provisions in this For the of ORS see note 4. The order suspended appear for "failure court.” case states that defendant’s license was appear specifically suspended at for failure It does not state defendant was hearing pursuant provisions That defendant was to the of ORS 484.210. hearing logically appear such flows from ORS for failure to at 484.220(2) 484.220(2), provides: however. "A driver’s license for defendant’s recommendation ordered, hearing but the failure of the not unless a been shall be made has hearing preclude such a recom- at shall

mendation.” that Notice Require Not 2. ORS482.570 and487.560Do Failure Entry Suspension an Order a Driver’s a Suspension be Mailed Appear Before License is Valid must act agency

Defendant also contends that an do it; that failure to in statutes governing accordance with invalid, statutory makes an action agency so re- 482.570 scheme as set out in ORS 487.560 and ORS be suspension that notice of the of an order of quires entry suspending an order driver’s mailed to driver before Thus, it is contended that license can become a valid order. (1978), Lawrence, P2d State v. 36 Or 585 727 App contrary, which to hold to the must be "overruled” appears because that when a driver’s license ORS 482.570 "give is Division it shall suspended by Motor Vehicles Therefore, notice of such action” to the driver. the failure the Motor do so makes the suspension Vehicles Division to invalid, in prove and it therefore follows that order to valid under ORS the state must suspension 487.560 mailing of such a notice accordance with ORS 482.570.

The principal upon by case relied support Fogle, of this contention is State v. 254 Or 275) (1969). (at P2d 873 In that this held page case court the results of a breath test were inadmissible negligent arising homicide case out of an automobile acci- dent because the had tested the properly equip- state not ment, required by reasoning, statute. the same it is By contended that unless the Division proves Motor Vehicles with of a compliance ORS 482.570 the driver’s license should also be held invalid. however,

Fogle, clearly distinguishable. case, 483.644(1), (2)(c), statute construed in pro- analysis vided in order for the specifically chemical be breath be must person’s equipment "to valid” Board by the State Board of Health and that approved There every days. shall make tests of the equipment no such that for an order language stating ORS 487.560 valid,” license "to be notice of suspending driver’s must mailed to ORS subsequently pursuant 482.570. Leathers, 271 Or relies on State v.

Defendant also (at held (1975), page in which this court P2d 901 240) its governing not "in with conformity that a sentence contends, by Defendant legal is "without effect.” statute” Division to of the Motor Vehicles failure analogy, 482.570 makes of ORS mailing provisions with comply of Leathers Analysis ineffective. an order of clear, however, of a imposition it was makes statute that made different from that allowed sentence case, comply failure to invalid in that the sentences requirements. with notice to the question

The more proper approach license is invalid an order a driver’s suspending whether has Division 487.560 unless the Motor Vehicles under ORS 482.570, is of ORS the mailing requirements complied that an order intended legislature whether inquire order, license, a valid if otherwise a driver’s suspending there can be a the driver before then be mailed to in a for prosecution his license and that of suspension valid must prove license the state with a suspended of its case part as a of the order of mailing Rev., 278 Or v. Company Dept. Anaconda chief. of Cf. (1977). P2d 1084 question on this contention strongest Defendant’s provided the affirmative defense is that 487.560(2)(b) failure to receive defendant’s concerns the mailing of notice, concerns while ORS 482.570 actual must legislature that Thus, defendant contends notice. a valid sus- there to be in order for intended that have notice, but that of mailing must prove the state pension defense that as an affirmative can still raise the defendant had no actual no- and thus the notice did not receive he tice. distinction, a we make such the statutes

Although the legisla- that follows necessarily not believe do had Division Vehicles that after the Motor intended ture a driver’s suspending valid order an otherwise entered to the driver that order mail a of license, copy it must then the state and the order is a valid order before its case in chief.9 this as a of part prove require all, does not First of ORS 487.560 "Driving the offense That statute defines such a result. as follows: suspended” "(1) driving while the crime of A commits person highway upon vehicle if he drives a motor suspended a motor to drive permit license or during period when his drive a motor license to right apply his for a vehicle or byor by a court state has been vehicle this if drives a he by the division the division or revoked issued of a license the restrictions motor vehicle outside ORS 482.475 or 482.477.” under held Lawrence, it was supra, v. State that: Appeals

Court (1) prove the state is "Under subsection 1) driving upon defendant was in its case in chief 2) sus- his license was at the time highway 736) (36 App Or at pended.” Commentary on the to the defendant’s reference We have not overlooked 1975). (Committee Judiciary, January Code, Oregon § Proposed on the Vehicle Commentary proposing the interim is now OES notes that in what That Appeals upon case of prepared the recent Court the code relied committee that (1973). App contends that Buen Buen, Defendant 13 Or 509 P2d 865 v. State mailing is valid and therefore notice before requirement. legislature also make that intended ORS 487.560 First, rejected Buen did not reasons. must be for several This contention valid, stated clearly to be but must mailed for a state that notice compliance unnecessary with ORS in order to that it is 482.570, to show actual notice followed, requirement statutory such as that when duties are complied notice, process with. presumed has been it is that due § Second, Commentary’s 92 is primary Buen is to show reliance despite the defen- allowing cases in some with Buen a conviction consistent notice. that he did not receive actual dant’s assertion preparation of the legislative history subsequent importantly, More contrary legislative that contended defen- Commentary than intent shows Code, Oregon Paillette, Proposed Vehicle Project Director of the Donald dant. Mr. explained Judiciary On Committee. provisions proposed to the code the explain- Judiciary and testifying Committee January the Senate before ing § Mr. Paillette stated: going to be the burden is being put is that forth in this section is "What suspension that showing is a long there that so as there has been shifted the defendant suspended or driving he was question time when at a was 23,1975, January page Judiciary, 5. Minutes, Senate Committee on revoked.” need legislature that the state intended supports that the the conclusion This an intent that suspended, than suspension rather only prove proof while in chief. by its case mailing state in also be shown the of controlling on this Although that decision is not court, it to in support we believe be of some of significance of in ORS analysis the mention notice (2)(b), provides is in the 487.560 subsection which the fact may raise as an affirmative defense by has not as ORS 482.570. he received notice required is controlling, not the fact that notice not Although perhaps as an affirm- any way except mentioned in ORS 487.560 did legislature is some indication that the not ative defense mailing intend to to of notice as require prove state facie prima of its in chief in order make case part case to "driving suspended.” offense to of making find significant We also it defense, the legisla- an failure receive notice affirmative 487.560(2)(b) with a provided ture has defendants with ORS 482.570. remedy when the state fails comply argued be provided, Had not such a defense been could of mailing that the notice effectively more the defendant otherwise the for a valid because necessary was could that section’s notice arbitrarily state follow ignore requirements.

Furthermore, statute so the notice defendant, to make the relied heavily upon by appears separate an "action” from subsequent giving notice act or It provides: that of the of a driver’s license. * * * * * * * * *, it suspends a license "When the division give person whose license shall notice such action * ** added) (Emphasis is affected.” least some "such at

The reference action” the sus- considered legislature further indication that complete "action” a driver’s license to be an pension action.” of such apart giving itself from "notice A intent final indication of legislative to ORS 482.570 pursuant of notice subsequent is that cases a valid order have been this, licenses involving whose persons such had al- legislature appear,” for "failure to hearing satisfy sufficient ready for notice and provided below, process due As process. due discussed constitutional before a provided hearing that notice and may require suspend- case those license is terminated. driver’s a traffic hearing on in court for a for failure to ed by is ORS offense, hearing such and notice hearing to such a provides prior 484.210. That section shall the to defendant which "set court is to mail notice the hearing the for failure to for warning appear forth a to unless bail subject suspension the license is defendant’s in the summons.” the amount set deposited in view of We it reasonable to assume believe statutory to a by legislature provide these efforts the the process requirements scheme consistent due with the being suspended, to a license hearing prior notice and the of an order validity did also intend that legislature notice also dependent upon a driver’s license be suspending Such an suspended. driver his license has been the after to be both constitu- requirement additional would also unnecessary duplication and an tionally unnecessary of effort.

In our it more reasonable to conclude opinion, by ORS 484.210 is hearing provided the notice and satisfy the constitu provision by legislature intended a driver’s process tional of due before such requirements cases suspended, involving persons license is at least case, suspended for "failure to as this and appear,” the an order of subsequent mailing copy of a such re legislature was the to be suspension by not intended for the order of to be valid. For these quired reasons, statutes, including we do not these interpret 487.560(1), the prove state to require chief, its at under as case part notice ORS 482.570 involving least in cases orders of for "failure to as in this case.10 appear,” Entry Require

3. Due Process Does Not that Notice of Mailed Failure to be Suspension Appear an Order of for License is Valid Suspension Driver’s Before in a prosecution Defendant contends that driv process 487.560 due ing under ORS including analysis by concurring opinion, proposed its reliance by party argued suggested in this either case. was not by Indeed, by concurring opinion, the contentions submitted noted case, quite by parties opinion, different. For that this were in this decided by reason, concurring questions opinion, raised as also stated argued. they left an occasion when are briefed and the state must prove compliance mailing requirements of ORS in order 482.570 valid suspension. Defendant this contention supports v. citing Burson, 535, 540, Bell 402 US 29 LEd 2d 91 S (1971), Ct 1586 Oregon decisions Court of Appeals. Burson,

Bell v. supra, does not hold that unless a of an copy order suspending driver’s license is then mailed to the driver order of is invalid. Instead, the court in that addressed the case issue of the right to notice and hearing prior to determination the license should be The court stated that due suspended. process

"* * * requires that when a State seeks to terminate an (driver’s license), interest such as that here involved must afford hearing 'notice and opportunity appropri- for ate to the nature of the case’ the termination be- before comes original). effective.” 402 US at (emphasis 542

The notice Bell is therefore notice required by hearing at which it will be decided whether the license should be At suspended. least for drivers whose licenses are case, for suspended Oregon’s "failure to as in this appear,” statutory scheme provides hearing prior for notice and to 484.210, suspension. noted, As previously the statute for the providing suspension of a driver’s license for "fail offense, ure to at a appear” on a traffic hearing provides the court "shall at least in advance of the days five fixed,” mail hearing notice of the date and time so and that "[t]he notice shall set forth for warning failure to the defendant’s to appear subject license is suspension unless bail is deposited in the amount set in the summ addition, 484.150(7)(a), ons.”11 In repealed in 1979 but in effect at the time of defendant’s arrest convic tion, that a in court provided appear summons shall include language may failure to result in a appear follows, suspension.12 It opinion, statutory our 11 provisions For the of ORS see note 4. 12 484.150(7), provisions For the of ORS see note 5. It should be noted that 484.150(7)(a) although say seemed at an initial court that failure appéarance pursuant might suspension, to a in a we have summons result been any authority grant power

unable to find that would to recommend a a court

199 regarding hearing scheme notice and for those "failing appear” at the time of defendant’s forth in requirements satisfied the of due set Bell. process Oregon Most of the decisions Court of cited on this Appeals by petitioner, although binding court, also have held that must be hearing given notice and that due prior suspension, process but did not hold that notice be itself. given (1977), Figueroa, 803, State v. 30 Or 586 P2d 691 App Court of Appeals holdings summarized its earlier on the issue by stating:

"The process right substance of the due set out in Boykin and Floyd reaffirmed in is that a licensee is entitled to a hearing prior to the and entitled to right.” notice of this App 30 Or at 805. Floyd Div., 41,

See also v. Motor Vehicles Or 554 P2d App 27 (1976); Ott, Boykin v. 498 P2d App Or (1972) Buen, . But see State v. 13 Or 509 P2d App (1973) , Gartzke, and State v. 35 Or 580 P2d 1062 App (1978).

Defendant further contends that "where construc- tive notice is required as a matter of due process, shifting the burden of proof on issue to unconstitutional,” this decisions in State v. citing court’s Stocked, 637, (1977), 278 Or 565 P2d 739 and State v. (1979). 293, Stilling, 285 Or 590 P2d 1223 Stocked, In this court held that under the rule as Mullaney Wilbur, 1881, 44 stated in v. 421 US 95 S Ct (1975), LEd 2d 508 an Oregon statute which placed upon defendant the burden of proving partial responsibility diminished intent was unconstitutional in that it at to shift the tempted proof regarding burden of 484.220(2), suspension in such a case. As discussed in also in footnote arrest, provides effect at the time of defendant’s cannot recommend a court Thus, hearing pursuant unless it has ordered a ORS 484.210. language 484.150(7)(a), despite appears of ORS a court could not it have suspended person’s simply failing license at an for initial court noted, appearance by hearing being set It summons without a though set. should be however, actually suspended that even in driver’s license would not be hearing given pursuant of a further the absence to ORS the notice to a might might provided that his license driver well have purposes process. for with notice of constitutional due This defendant’s mens rea to the defendant. court reasoned in a of the specific intent crime the existence of the mental state was an element” crime "essential not be shifted proof burden element could Stilling, supra, the defendant. 278 at In v. Or 642-43. State statement of quoted this court its approval Stockett rule. case, argument process this defendant’s due dependent upon this under court’s decision in Stockett of the order sus- determination "constructive notice” an "essential ele- defendant’s driver’s license was pending If it was suspended. ment” of the offense of shifting the burden element,” such an "essential then him dis- by requiring on that issue to defendant proof analy- under our prove "notice” would be unconstitutional sis in Stockett. Mullaney, and also to its in

Subsequent decision Stockett, in to the decision this court subsequent by decided Patterson v. New Supreme United States Court (1977), in York, 2319, 53 LEd 2d 281 432 US 97 S Ct Mullaney. in rule announced greatly which narrowed the not have a due Oregon Constitution does Because this own, its made clause of process any pronouncement Stockett, in discussed concerning court due process, rest due of the Constitution process clause Thus, this court United States.13 because the decision of understanding its require was based upon Stockett Mullaney, the decision ments of due as stated process in Patterson States Supreme Court of United of the rule an on binding application this court its it in nounced Stockett. initi- recognized

In Patterson the Court Supreme that: ally * "* * of the State to normally the power it is 'within out, its are carried regulate procedures under laws which including and the burden producing evidence burden of regard subject is not in this persuasion,’ its decision unless 'it the Due Process Clause proscription under justice so the traditions principle offends rooted some 13 (1970). 125, 145-46, Linde, Process, Or L See Without Due Rev ranked as fundamen- people conscience of our as to be and 201-202) omitted) (432 (Citations at tal.’” US made it clear Patterson The Court also Supreme of a certain just provides proof because statute defense, it not follow an does fact constitutes affirmative the crime with those facts are an element of stated: state. The Court proof upon burden of impera- adopt "We thus decline to constitutional tive, disprove countrywide, that a state operative constituting any and beyond every a reasonable doubt fact an culpability to the all affirmative defenses related * * * not disturb the balance accused. We therefore will Process Clause previous holding struck in cases the Due prosecution prove beyond a reasonable doubt all of the elements included in the definition of the 210) (432 at charged.” offense of which the defendant US See also 432 US at n. 15. it Mullaney Court then noted that Supreme

had shift the may proof held state burden an element of a crime to the defendant. The Court Patterson, however, an defined what constitutes narrowly due as "a process, "element” of the crime for purposes it must be fact which the State deems so important either 432 US at 215. The Court then proved presumed.” Mullaney went on to state that under the facts of such an the Maine shifting of element existed because under statutes "malice "mentioned in the stat- aforethought” was definition of the so as to be an "element of the utory crime” crime,” of malice was yet "presumed that element by proving by could be rebutted the defendant heat of that he acted with preponderance evidence 432 US at 215-16. passion upon provocation.” sudden does not In this case the fact of "notice” suspended,” "driving the definition of the offense 487.560(1) as the act of simply is defined by which ORS the driver’s when during period a motor vehicle Also, although fact license has been suspended. of an order of notice 487.560(2) that it is specifically provided is an affirma- did notice the fact that the driver not receive tive defense. noted,

As previously we do not believe was intent in 487.560 and legislature writing of the ORS of require 482.570 to that notice of the order follows, in opinion, mailed for that order to be It our valid. that of a of the order of proof mailing copy suspen sion, 482.570, as was not intended provided by to be an of the offense of legislature "essential element” 487.560(1). It suspended, while violation of ORS follows, also such our that of notice was opinion, proof either under the rule of Stockett due required by process or under the rule of Patterson.14 stated,

As also this is a case in which previously defendant’s for "failure to suspended driver’s license was follow in appear.” Whether the same result would cases which drivers’ licenses are for other reasons and required by whether in such cases the state would be due to offer evidence notice as a process part of constructive its case in chief is the court for decision in this not before case. Other Contentions

4. Defendant’s rejection by Defendant as error the assigned of a trial court of defendant’s offer in evidence motor registration showing vehicle an address somewhat differ ent from that listed on the order. Defendant was the last registration contends that the motor vehicle address of the the Motor Vehicle official had, Division with the the Motor Vehicle Divi result to a different sion’s the order 482.570, address did not with ORS which properly comply mailed address as person’s notice be "to shown division records.”15 14 process by denied due Defendant has not contended in this case that he is require culpable support state to

the failure of ORS 487.560 to mental "driving making liability suspended,” conviction for thus it a strict crime. language strongly support Supreme Other Court cases on related issues have crimes, "public ing constitutionality liability where welfare of strict at least offenses,” violations, California, such traffic See Lambert v. 355 are involved. (1952). 246, 262 (1957); States, US and n. 20 US 228 Morissette v. United 342 having recognition strong presumption This in contrast to the that crimes origin in See United States their the common law must have a mens rea element. (1978). Co., Gypsum States v. United 438 US 436-38 provisions For the see note 2. the state’s sustaining The trial court’s reason for was that objection admitting registration the vehicle on the defendant’s was irrelevant because the address driver’s license under ORS 482.570. proof relevant process requires Defendant contends that because due notice be in- reasonably person calculated to reach tended, all that would possible records must be considered defendant, provide greatest possibility reaching and that such a the motor record this case was vehicle (1971 Yount, P2d registration, citing v. People Colo.), the order must be mailed proposition the last address found in the Motor Vehicle anywhere records. Division’s

The trial court held registration the vehicle was irrelevant and that only the address on the defendant’s driver’s license is under proof relevant ORS 482.570. As- suming that the correctness of the address to the which case, notice was sent had any to the issues of this relevance we believe that this for ruling the trial court was correct two reasons. (which

First, ORS includes the statu Chapter 482.570) tory provision now in dispute, contains provisions licenses; concerning and chauffeurs’ operators’ provisions concerning vehicle are found in an registration entirely separate It chapter, ORS 481. is reason Chapter able to assume that by the term "division records” in ORS 482.570, the legislature meant those records the relating to subject matter of the statutory within which ORS chapter found, 482.570 is which would be driver’s license records and not vehicle registration records. 482.290(3)

Second, ORS that hold- requires persons ing driver’s any change licenses must the division of notify of residence from that on their license as issued by noted the Motor an Vehicles Division. This indicates requirement intent that driver’s license current and that kept records they be a current It reliable source of information. would be unreasonable to the Motor Vehicles Divi- require sion to search out other records immaterial to driver’s license the has set out a legislature when to scheme make driver’s license records themselves current light

and reliable. This is true in of the fact particularly that Motor license records the Vehicles Division’s driver’s fails to comply will be current and reliable unless driver 482.290(3), to notify with ORS which drivers of in address. our change Motor Vehicles Division upon this court an extra burden opinion, place should not search out other records Motor Vehicles Division to neglect. own solely compensate to driver’s reasons, reject the of reasoning For these same we Yount, the Colorado Court in which defendant supra, his that the Motor Vehicles support relies in of contention records, including vehicle regis- Division must search all records, tration ORS 482.570. comply to the evidence was

Defendant also contends (1) the to because: guilty insufficient verdict support prove mailing required state failed to notice (2) 482.570; suspen- state to prove failed arrest for sion order was effect at the time defendant’s (3) if the is not even state driving while suspended; chief, in its case but prove mailing notice required an of notice as receipt the defendant can assert lack defense, at trial was sufficient affirmative evidence of proof had carried the burden prove establish defense. state failed to

Defendant’s contention that disposed byof already of notice has been prove our in this the state was holding case mailing of notice its case chief. prove do second contention We not consider defendant’s that the suspen evidence there insufficient was in effect at time defendant’s sion order still it that such contention arrest because does appeal trial on to was made either at the time of Harris, 703, Or 609 288 But see State v. Appeals. Court of (1980), this case. the trial of P2d 798 decided after reasons, reject defendant’s For similar we sup was insufficient to final contention that the evidence at trial was the evidence guilty verdict because port had carried burden sufficient to that defendant had not received that he of the affirmative defense proof license. Defendant of his driver’s notice of

205 byor proper has not shown either his for review petition assignment Appeals of error his brief to Court trial court. Both his such contention was made in the any judgment arrest of acquittal motion for and his motion for based other grounds. were 394, (1967),

In State v. Or 425 P2d 528 Long, 246 case, this the defendant contended on as in appeal, finding guilt. evidence was insufficient support (at 396-97): rejecting contention this court said "Since defendant that issue in the trial failed to raise court, he in this court. cannot raise it for the first time As Abel, 465, 467, 406 we reiterated in State v. P2d 902 Or (1965), 'it is still the rule in this state in criminal as civil question preserved cases that "a not raised and in the trial ’ See, also, court will not Moore, appeal.” be considered on State v. (1964); Sanders, 238 Or v. 393 P2d 180 State Avent, (1962); 232 Or P2d State v. 209 Or (1956).” 302 P2d 549 may rule, There this some but not exceptions in this case.16

For all reasons, of these we hold that Court of Appeals properly affirmed defendant’s conviction.

Affirmed.

LINDE, J., concurring.

In order not to the import misconstrue of the hold- ing cases, on this record for other more something needs be said about elements of the crime of a motor vehicle when one’s driver’s license has been the significance of the "affirmative defense” that one has not received the statutory suspension. notice of the

This case has been the issue argued on whether proper mailing of notice of the is a prerequisite of the and an element of the offense of driving suspended. so, If be unconstitutional might failing Defendant also contends that the trial court erred hold that properly Again, defense or affirmative defense of lack of notice had been raised. by any assignment proper defendant has not shown of error in his brief to the Appeals objected Court of that he trial court to to the failure of the make such a finding.

make an affirmative defense to be failure receive notice raised and Even under Patterson proved by the defendant. 2319, York, New S 53 L Ed 2d 281 v. US 97 Ct (1977), the state process 14th amendment due does let an element disproving shift the defendant the burden of is It charged. only permits of the crime with which he or she the show assigning to the burden to "affirmative "mitigating defenses” that are as circum recognized stances,” i.e., 432 US at circumstances mitigate” some conduct specified degree "exculpate or the which otherwise all elements of crime.1 432 US includes the therefore, is an element of at 207. The what question, or cir "exculpatory” "mitigating” offense what an driving under the crime of governing cumstance laws while suspended. following legislature’s answer is found of 161.095(2), the 1971 revision part

statutes. ORS as that criminal Oregon’s law, criminal enacted principle except as stated culpable a mental state guilt requires next section.2 161.105, follows: That is stated as exception, "(1) 161.095, culpable mental a Notwithstanding ORS state is not if:

"(a) violation, culp- a The offense a unless constitutes able state is in the definition expressly mental included offense; "(b) An offense a outside Ore- defined statute intent to gon clearly legislative Criminal Code indicates requirement dispense any culpable mental state thereof. any the offense or for material element presence pursue or absence of 1 I do not here the conundrum how the making thereby specified can excuse or a defined without fact reduce crime presence this is a guilt that crime. That absence or of that an element of fact guilt plain question the actor’s of the crime conundrum is once we on the focus (for instance, license time notice that one’s at the his act when without However, suspended) procedure time of trial. as been rather at the has than on Supreme word says, the Court this 14th amendment issue we take on Court. 161.095(2): guilty "Except provided person is not of an offense in ORS respect material culpable to each unless acts with a mental state with he culpable necessarily requires state.” mental element of the offense that "(2) law, existing and un- Notwithstanding any other 1, 1972, January less a statute after otherwise enacted provides, outside the Ore- an offense defined a statute gon culpable Criminal mental requires Code that no state constitutes violation.

"(3) Although an a statute outside offense defined Oregon culpable Criminal no mental Code elements, respect state with to one or more its material may alleged and culpable commission of the offense proved, negligence in which case constitutes suf- criminal ficient culpability, and the of the offense and classification by the authorized sentence shall be determined ORS 161.505 to 161.605 and 161.615 161.655.” to recently Wolfe, We discussed these sections State v. 288 (1980). they provide short, Or 605 P2d a culpable except mental state is for all offenses punishable only those that are require violations.3 Violations culpable only expressly a mental state when in cluded in the definition of the When an offense. offense "clearly” created outside the criminal is intended code require culpable punishable state, no mental that offense is designed carry as a violation. These rules are out "general purpose” "limit condemnation of con duct as criminal when it is fault.” ORS without 161.025.4 "driving suspended”

How does fit into this by First, framework? it an is "defined a offense statute Oregon outside the Criminal ORS 487.560. The Code.” question 161.105(l)(b), second above, under ORS is clearly any dispenses culpable whether the statute with requirement. clearly mental state ORS does not 487.560 clearly specify dispense requirement. or a It is such point. However, silent on the the context indicates that a culpable driving mental state is an while sus- element pended. are not "Violations” "crimes.” "An a crime or a violation a offense is either or designated

traffic infraction.” ORS An if it is 161.505. offense is a violation so or punishable only by fine, forfeiture, 161.565, penalty. it if a civil ORS or other 161.575. 161.025(1): ORS general purposes chapter 743, Oregon

"The Laws are: "(d) accompanying To define the act mental state or omission and the that constitute each limit as crimi- offense and the condemnation conduct nal it when is without fault. 487.560(1) provides:

"A person while sus- commits the crime highway during if he drives a pended a motor vehicle a motor vehicle period permit when his license or to drive right his drive a motor vehicle apply license to by court or the division this state has been by the if drives a motor vehicle or revoked division or he under outside the restrictions of a license issued 482.475 or 482.477.” (5) By

It subsections defines offense as "crime.” C (6), the crime A or Class is either a Class misdemeanor in ORS felony. legislative assembly supra, said, assume, not intend ordinarily does has we no reason to know the make a criminal of one who has Wolfe, v. that make his unlawful. State facts conduct Cf. in good faith on a That to one who drives supra. applies to suspect reason license issued state without has or otherwise terminated. It the license been suspended for notice discussed borne out various provisions by the Court.

Moreover, if read to dispense were ORS 487.560 161.105(2), element, then ORS with a mental culpable above, the offense of while quoted would reduce to a it to define purports from crime which If it is that the anything, indicates violation.5 487.560 sus making driving more legislature was intent on any eliminate pended culpable a serious offense than to no have reason element and make violators of who people of their drivers’ licenses. validity doubt the continued does not Nevertheless, the statute though even as an affirmative culpable with a mental state dispense crime, prosecu- matter the element and as a practical likely the most may tion of notice as sending element, not follow that evidence to show that does an affirma- itself is such sending notice of knowledge degree of tive element. Thus the what question status one’s license failure to into the careless inquire is properly the required culpability constitutes element of January enacted after This is so unless ORS which is "a statute expressly provides.” again, "other- But ORS 487.560 does 1972” "otherwise point. provide”; wise it is silent on the It argued.6 left to an occasion when it is briefed case does not present deserves to be out that pointed decide that question. 161.085(6) (10), "culpable defining the different kinds of mental Cf.

state.”

Case Details

Case Name: State v. Stroup

Court Name: Oregon Supreme Court

Date Published: Dec 9, 1980

Citation: 620 P.2d 1359

Docket Number: NO. 78-32999, CA 16139, SC 27010

Court Abbreviation: Or.