STATE of Oregon, Respondent,
v.
Corinne WEBER, Appellant.
Court of Appeals of Oregon.
*379 Michael E. Rose, Portland, argued the cause for appellant. With him on the brief was Steenson, Schumann, Tewksbury, Later & Rose, P.C.
Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before HASELTON, Presiding Judge, and WOLLHEIM, Judge, and LIPSCOMB, Judge pro tempore.
HASELTON, P.J.
Defendant appeals a judgment of conviction for speeding, ORS 811.100, based on a citation issued pursuant to the рhoto radar statute, ORS 810.438 to ORS 810.439 (1997).[1] She argues that: (1) the photograph and data generated by the photo radar unit were improperly admitted into evidence; (2) the statutory presumption that the registered owner of the vehicle was the driver at the time of the alleged infraction, ORS 810.439(1)(b) (1997), is unconstitutional; and (3) the delay of over a week between the speeding incident and the citation's issuance violated her due process rights. We affirm.
The faсts are undisputed. At approximately 10:00 a.m. on September 23, 1997, Portland Police Officer Frolov was operating a photo radar unit on S.W. Barbur Boulevard and saw a burgundy station wagon that appeared to be speeding. The photo radar unit *380 also detected and photographed the station wagon as speeding, and Frolov contemporaneously noted the color and type of vehicle corresponding to the frame number in his "Photo Radar Visual Observation Log."
At the end of his shift, Frolov placed the exposed film in a box at the police station where the photo radar vendor picks up exposed film for processing. Approximately five or six days later, Frolov received the citations generated from the photo radar data and the developed photographs with the time, date, and vehicle speed imprinted on them. Within that group was а citation alleging that defendant violated the prohibition against speeding, ORS 811.100, by driving 58 miles per hour in a 35 mile per hour zone, and a photograph of a woman driving a burgundy station wagon imprinted with the date, time, and 58 mile per hour speed. Frolov signed the citation on September 30, 1997, and defendant received the citation some time thereafter.
Before trial, defendant filed a demurrer and alternative motion to dismiss the "photo radar citation." Defendant asserted, particularly, that the statutory rebuttable presumption that the registered owner of a vehicle was the driver at the time of the alleged infraction detected by photo radar, ORS 810.439(1)(b) (1997), unconstitutionally shifted the burden of proof and abrogated the presumption of innocence. The court overruled the demurrer and denied the motion.
At trial, Frolov testified that the woman in the photograph was defendant.[2] He also testified that he relied on the information imprinted on the photograph and the citation to attest to the actual speed of defendant's vehicle because he does not make a contemporaneous notation of each vehicle's speed in his observation log. Frolov testified that, while tracking vehicles with the photo radar unit, he is able to visually detect which vehicles are going faster than the speed limit and that, оn the occasion in question, defendant's vehicle "visually appeared to be a vehicle traveling above the posted 35 mile per hour speed limit."
Defendant testified that she had no recollection of the incident and could not explain why she was driving on that road at that time and at that speed. She did not deny that she was the driver in the photograph or that she was the registered owner of the vehicle in the photograph.
At the сlose of the evidence, defendant moved for judgment of acquittal, arguing, inter alia, that the photo radar statutory scheme embodies an unconstitutional delay between the time of the alleged offense and the issuance of the citation. The trial court denied that motion, found defendant guilty, and assessed a $100 fine.
On appeal, defendant raises four assignments of error. In her first and second assignments, defendant argues that the court erred in admitting the photograph and testimony as to defendant's speed that was based on information contained in that photograph. Second, defendant assigns error to the denial of her demurrer and motion to dismiss, which challenged the presumption in ORS 810.439(1)(b) (1997) that the registered owner is the driver of an offending vehicle. Finally, defendant assigns error to the denial of her motion for judgment of acquittal, arguing that the delay of more than a week between the time of the оffense and issuance of the citation impaired her ability to defend herself. We address each assignment in turn.
Defendant first argues that the inscription on the photograph setting forth the speed of the vehicle was inadmissable hearsay and that Frolov's testimony as to the speed of defendant's vehicle, which was based on that inscription, was also inadmissable. The state responds that the inscription at issue is not hearsay as OEC 801 defines that term, аnd that the rationale for excluding hearsay statements does not apply. We agree with the state.
*381 OEC 801 sets out the pertinent definitions for purposes of the hearsay rule:[3]
"(1) A `statement' is:
"(a) An oral or written assertion; or
"(b) Nonverbal conduct of a person, if intended as an assertion.
"(2) A `declarant' is a person who makes a statement.
"(3) `Hearsay' is a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted."
Defendant argues that the speеd notation on the photograph is a "written assertion" under OEC 801(1)(a) and, thus, a statement. The state responds that hearsay is, by definition, a "statement made by [a] declarant," and, under OEC 801(2), a declarant must be a "person," not a machine. (Emphasis added.)
If the definition of "statement" in OEC 801 is read in isolation, defendant's argument is not implausible, given the disjunctive "or" at the end of OEC 801(1)(a). However, when read as a whole, OEC 801 indicates that hearsay is an out-of-court statement, offered for the truth of what it asserts, and made by a declarantwho must, by definition, be a person. OEC 801(2). Here, even assuming that the photo radar inscription could be characterized as a "statement," it was generated by a machine, and not made by a person. The inscription here is an assertion not made by a person but by a machine. It is not hearsay.[4]
Defendant next argues that the court should have excluded the photograph on chain-of-custоdy grounds, because the state offered no evidence as to who picked up the film from the station, what happened to the film, how it was handled, or what was done to it prior to the citation and photograph being returned to the police station six days later.
We note initially that, in both civil and criminal proceedings, determining the adequacy of the foundation required to establish a chain of custody rests within the discretion of the trial judge. In American Reciprocal Insurers v. Bessonette,
"The ruling was discretionary. The exactness of a proponent's accounting for the custody of exhibits must, necessаrily, rest in the sound discretion of the trial judge. If the exhibits are of a questionable type, or if the environment from whence they come suggests reasons that would cause the court to have more than a mere captious doubt about the authenticity of the exhibits, or about their identity, or about changes in their condition, then the trial court may very well require a proponent to lay a substantial foundation for the receipt of the evidencе. See Keller v. Coca Cola Bottling Co.,214 Or. 654 , 662,330 P.2d 346 (1958). In the case at bar, however, there is no reason to infer that anyone tampered with the pipe, nor is there any reason seriously to doubt the authenticity of the exhibits. The trial court might have required the plaintiffs to describe in greater detail the chain of custody of the exhibits, but there was no error in receiving them under the circumstances revealed in this case." Id. at 505-06,330 P.2d 346 .
That same reasoning applies in this context as well. Cf. State v. Anderson,
Here, the trial court did not abuse its discretion in admitting the photograph. As noted, Frolov contemporaneously maintained a log of vehicles he perceived to be speeding. Although the photo radar film canistеr was out of police custody for several days while the film was being processed,[5] the photograph here, and the information displayed on that photograph, corresponded to Frolov's contemporaneous observations. The information regarding speed was imprinted on the negative at the moment the film was exposed,[6] and there is no indication that the vendor or anyone else tampered with or in any way alterеd that information during processing.[7] Given the totality of the circumstances, the trial court was well within its discretion in determining that there was no appreciable likelihood of alteration or tampering and that no further foundation was required.
Defendant next assigns error to the trial court's denial of her pretrial demurrer and alternative motion to dismiss. In that demurrer, defendant argued that the photo radar scheme was unconstitutional in its entirety. ORS 810.439 (1997) providеs, in part:
"(1) Notwithstanding any other provision of law, in the jurisdictions authorized to use photo radar:
"(a) A citation for speeding may be issued on the basis of photo radar if the following conditions are met:
"(A) The photo radar equipment is operated by a uniformed police officer.
"(B) The photo radar equipment is operated out of a marked police vehicle.
"(C) An indication of the actual speed of the vehicle is displayed within 150 feet of the location of the photo radar unit.
"(D) Signs indicating that speeds are enforced by photo radar are posted, so far as is practicable, on all major routes entering the jurisdiction.
"(E) The citation is mailed to the registered owner of the vehicle within six business days of the alleged violation.
"(F) The registered owner is given 30 days from the date the citation is mailed to respond to the citation.
"* * * * *
"(b) A rebuttable presumption exists that the registered owner of the vehicle was the driver of the vehicle when the citation is issued and delivered as provided in this section.
"(c) A person issued a citation under this subsection may respond to the citation by submitting a certificate of innocence * * * or any other response allowed by law.
"(2) A citation issued on the basis of photo radar may be delivered by mail or otherwise to the registered owner of the vehicle or tо the driver.
"(3)(a) If a registered owner of a vehicle responds to a citation issued under subsection (1) of this section by submitting a certificate of innocence within 30 days from the mailing of the citation swearing or affirming that the owner was not the *383 driver of the vehicle and a photocopy of the owner's driver license, the citation shall be dismissed." (Emphasis added.)
In support of her demurrer and alternative motion to dismiss, defendant asserted that the statutе unconstitutionally "creates presumptions, shifts the burden of proof, permits a police officer to file an accusatory instrument against a person whom he or she has no reasonable suspicion has committed any offense, compels a suspect to waive his right against self-incrimination and is violative of the separation of powers doctrine." The court denied defendant's demurrer and motion to dismiss.
On appeal, defendant focuses on the rebuttable presumption set out in ORS 810.439(1)(b) (1997) and contends that that presumption unconstitutionally shifts the burden of proof of the identity of the offender. The state responds that, because the traffic violation charged in this case is not a criminal offense, the constitutional protections invoked by defendant do not apply, and that, even if they did, the rebuttable presumption is constitutional.[8] For the reasons that follow, we do nоt reach the merits of defendant's constitutional arguments.
We reiterate the procedural posture at trial and on appeal: Defendant attempted to raise the constitutional challenge to the statutory presumption via a demurrer and an alternative "motion to dismiss." On appeal defendant assigns error to the denial of the demurrer and the alternative motion to dismiss.
Defendant could not properly challenge the constitutionality of the presumption contained in ORS 810.439(1)(b) (1997) by way of demurrer. A defendant may demur to an accusatory instrument when, inter alia, "it appears upon the face thereof * * * that the facts stated do not constitute an offense." ORS 135.630. Such a motion challenges the constitutionality of a statute the defendant is accused of violating on the grounds that such a statute is incapable of providing the basis for a conviction. See, e.g., State v. McKenzie,
Here, the accusatory instrument, the traffic citation, simply alleged that defendant violated ORS 811.100, the basic speed rule.[9] The citation does not even refer to the photo radar statutes. Nowhere on the face of the citation is there any indication that the citation was based on evidence obtained by means of photo radar, and it would have been error for the court to consider that fact in ruling on the demurrer. State v. Reed,
Defendant's position here is, thus, analogous to that in State v. Barker,
Similar analysis applies to the denial of defendant's alternative "motion to dismiss." Oregon law provides for motions to dismiss on a range of grounds. See, e.g., ORS 135.470 (former jeopardy); ORS 135.745 to ORS 136.750 (precharge delay and speedy trial); State v. Nelson,
In so holding, we emphasize that there are procedures by which a defendant cаn challenge the constitutionality of a rebuttable presumption. The issue can be raised by motions in limine, seeking to preclude or restrict a presumption's application, or by objections to evidence during trial. Cf. State v. Rainey,
In sum, defendant's demurrer and alternative "motion to dismiss" were insufficient to raise, and preserve, her constitutional challenge to ORS 810.439(1)(b) (1997). Defendant's assignment of error, which is exclusively to the denial of the demurrer and "motion to dismiss" is similarly deficient. Consequently, we affirm the trial court's disposition of those matters without reference to defendant's unpresеrved constitutional challenge.[13]
Defendant finally assigns error to the denial of her motion for judgment of acquittal, arguing that the delay of more than a week between the time of the offense and issuance of the citation violated her due process rights under the Fourteenth Amendment to the United States Constitution. She argues that the delay impaired her ability to defend herself because she could no longer remember where she was going or why she *385 was speeding. That delay, defendant argues, is "inherent in the photo radar process itself" because an alleged offender is not stopped at the time and, thus, has no occasion to fix the incident in her mind by the presence of "lights sirens and [a] looming officer." Defendant's argument is, in essence, that her lack of recollection impairs her ability to defend herself.
For a precharging delay to give rise to due process violation, "a defendant must show both substantial prejudice to his right to a fair trial and that the delay was done intentionally to gain a tactical advantage." State v. Dike,
Affirmed.
NOTES
[1] Oregon Laws 1995, chapter 579 created the Photo Radar Demonstration Project for use in the cities of Portland and Beaverton. The statute was amended аnd permanently adopted by the 1997 Legislature. Or Laws 1997, ch 280; see ORS 810.438 to ORS 810.439 (1997). The statute was further amended in 1999, but the 1999 amendments did not change the relevant language.
[2] Defendant was present at trial at the time of this testimony. Cf. State v. Clay,
[3] Under OEC 802, hearsay is generally inadmissable, subject to exceptions enumerated in OEC 801 to OEC 806.
[4] Accord State v. Harris,
[5] Defendant asserts that that break in custody created an opportunity for tampering. However, the abstract potential for tampering does not
establish that such tampering was likely. See, e.g., State v. Winslow,
[6] There is no evidence of mechanical malfunction or improper operation that would affect the accuracy of the information imprinted on the photograph. Based on Frolov's description of the procedures he used to set up and calibrate the unit, the trial court explicitly found that the photo radar unit "was sеt up according to approved procedures, * * * [and] was operating correctly."
[7] At trial, defendant argued that the vendor had a financial motive to tamper with the photograph because the vendor is paid on a percitation basis. However, that argument is undermined by Frolov's testimony indicating that the photo radar unit only photographs only vehicles that it detects speeding. Every exposed negative sent to the vendor thus provides the basis for a citation, and the vendor has no incentive to do anything other than develop the film and generate a stack of citations based on the information imprinted on that film.
[8] A similar but legally distinct challenge was raised in Clay, where the defendant asserted that, in invoking the statutory presumption, "the
trial court erred by shifting the burden of proof."
[9] ORS 811.100 provides that: "A person commits the offense of violating the basic speed rule if the person drives a vehicle upon a highway at a speed greater than is reasonable and prudent * * *." A speed in excess of any posted speed is "prima facie evidence of a violation of the basic speed rule under ORS 811.100." ORS 811.105.
[10] The complaint alleges that defendant was driving 58 miles per hour where the posted speed limit was 35 miles per hour. The complaint is
facially sufficient if defendant cannot admit the truth of that allegation and still be innocent of the offense of speeding under ORS 811.100.
Barker,