*1 Argued September reversed October BROWN, Petitioner, MULTNOMAH DISTRICT COUNTY al, Respondents.

COURT et (CA 25407) 7893, SC

570 P2d 52 *3 [ ] 96-a Rosenthal, Attorney, Elden M. ACLU Cooperating Portland, the cause and filed a brief argued petitioner. Laue, General, Salem, argued

Al J. Solicitor Michael were W. cause for On the brief respondents. (former A. General), and James Gillette Solicitor Redden, Attorney General. McGavic, (P.C.), Eugene,

J. P. Graff of Gildea & Association Lawyers filed a brief for Trial amicus curiea. C. Babcock, Defender, D. and Robert Public

Gary filed a brief Defender, Salem, Public Cannon, Deputy amicus Defender as for the Office of State Public curiae.

LINDE, J. J., concurring.

Tongue, specially Holman, J., dissenting.

[ ] 96-b LINDE, J. Code Vehicle revising of

In the course 451) assembly (Or legislative L ch vehicle a motor driving of offense the first placed (DUII) into intoxicants influence of under as distin- infractions” "traffic statutory category 484.365. ORS "traffic crimes.” from guished the entire whether, in the light before us question without be tried scheme, this offense statutory defendants guaranteed safeguards the constitutional in criminal prosecutions. DUII, with a first offense district court

Charged counsel for moved for an order petitioner appointing and by jury, him as an him trial indigent, granting reason- the state to its case prove beyond requiring in the excluded rights expressly able doubt. These code, under ORS trial of traffic infractions 484.390(1), 484.375(1), (2), the district court and writ of review the circuit denied all three demands. On under the influence of driving court concluded intoxicants, offense, even as a first retains sufficient com- charge characteristics of a criminal to require with the constitutional pliance guarantees trial ordered the district court to conduct petitioner’s accordingly. conclu- contrary reached Appeals

The Court 917, 566 P2d order, 29 Or App sion and reversed the the impor- review to resolve We granted has involved. The case tant questions constitutional amici parties briefed thoroughly been the able opinion benefit of curiae, and we have the effec- the legislature Whether the Court of Appeals. "decriminalize” its purpose carried out tively intoxi- influence of under offense of first follow, the reasons For question. cants is a close of the from that assessment at a different we arrive reverse. accordingly Court of Appeals I invoked rights the three constitutional Of *5 petitioner, two—the right to counsel and to a jury trial—are guaranteed specifically "criminal prose cutions.” Section 11 Oregon’s Bill Or Rights, I, 11, § Const art provides: In prosecutions, all criminal the accused shall have right public by trial an impartial jury in the county in which committed; the offense shall have been counsel; to be heard by himself and to demand the nature and cause of him, the accusation against and to have a copy thereof; to meet face, the witnesses face to and to have compulsory process for obtaining witnesses in his favor; however, provided, any person, accused cases, other than capital and with the consent of the trial judge, may elect by jury to waive trial and consent to be judge alone, tried of the court such election to be ,1 in writing; . . The Court concluded, of Appeals upon reviewing our prior cases and the records of the Indiana constitu 1, tion from § which article 11 taken, was right jury to a trial extends to all if they offenses have the character of criminal 924, 29 prosecutions.2 at App 5, and note 566 P2d at 526. We agree. same is true of the to be right counsel, heard by although right to appointed counsel at public expense requires sepa rate discussion.

The third guarantee—proof beyond a reasonable doubt—is constitution, in the expressed though

1 I, § See also Or Const art 16: whatever, jury right . . . In all criminal shall have the cases law,

determine the and the facts under the direction of Court as to law, trial, and the of new as in civil cases. If it is determined that law and do not a state’s own constitution provide necessary safeguards, the claimed to consider the then becomes corresponding guarantees that bind the state of the federal 6th amendment 145, 88 Louisiana, the 14th virtue of amendment. See Duncan v. 391 US 1444, 20 Hamlin, 25, 92 (1968), Argersinger S Ct L Ed 2d 491 v. 407 US S Ct 2006, 32 L Ed 2d 530 Erickson, 1, 62 (1900), Wong distinguishing 2Portland v. 39 Or P 753 Gilmore, Astoria, (1886); City Gillespie v. 307 11 P 295 Or cf. ordinance) (Ind 1974) (violation city App and cases there cited. NE2d 480 (1976), Jordan, jury Compare P2d 736 in which Behnke v. 275 Or jury the civil sections of trial was claimed under a statute and constitution, I, § not art. 11. may well be in the of a "criminal implicit concept when the was prosecution” understood constitution in 1859. It adopted statutory has been law (L §203) 1864; from 1864 Crim. Code to the Deady 17.250(5), 136.415, see present, and we may reasonably infer from the legislature’s unchanged adherence to this standard of for traffic "crimes” proof the legislature would it to continue to expect govern a trial of an offense as as it long remains event, "criminal In prosecution.” any safeguard due required by under the federal 14th amend- process *6 ment not in only criminal but prosecutions other of similar proceedings character. In re 397 Winship, (1970) 358, US 1068, 90 S Ct 25 L Ed 2d 368 (juvenile court determination of delinquency).

More than these three procedural on rights hinges the characterization of a traffic offense as a "crime” or an "infraction.” The Bill of also Rights guarantees defendant in a criminal case to a written accusation, to trial in the where the offense county committed, was to confront the witnesses him against court, and open I, 11, § witnesses. Art. subpoena 3 It supra protects him against double jeopardy against being compelled to testify against himself. I, § Art. laws, 12. The prohibition ex against post facto I, 21, § art. refers to criminal laws. Fisher v. City of Astoria, 268, 853, 126 Or P (1928); 269 60 ALR 260 In re Idleman’s Commitment, 13, 146 27 Or P2d 305 (3 Dall.) (1934); Bull, 386, 1 L Calder v. 3 US Ed 648 cf 4 (1798) . Of these guarantees, the statute also expressly withdraws the protection against double jeopardy infractions,” and, from "traffic 484.395, if the state’s argument in this court accepted, 3 1055, 428-430, 38 P2d Biggs, State ex rel 255 Ricco v. 198 Or Cf. (1953). ALR2d 720 4 I, open question guarantee § Another of art. whether inflicted, punishments penalties "[c]ruel and unusual but shall not be all offense”, proportioned depends classifying shall be to the on the "offense” "criminal,” Supreme recently as the United Court has States said of the —US—, comparable Ingraham Wright, clause of the 8th v. amendment. 1401, 1409, S Ct 51 L Ed 2d 711

leaves the other within rights the future discretion of the legislature. that some of these Considering entered the state and federal as a constitutions result "Abuses and Usurpations” III charged against George in the Declaration Independence,5 question the distinction between "criminal prosecu- tions” and "infractions” is itself in the discre- wholly tion of the has importance. notable

n It is beyond dispute that the legislature may define and enforce obligatory conduct means other than law, taxation, criminal as it does in or injuctive orders, remedies, or in creating private may which extend beyond damages. It compensatory may employ effect, licenses—in from a exemptions prohibition— conditioned prescribed upon qualifications upon adherence to standards of conduct. It prescribed may take custody of or persons involuntary commitment juvenile proceedings. Since the state has plenary power to its only devise laws limited the state and constitutions,6 federal Dist. School No. v. Wasco 622, 627, 529 (1974); County, 270 Or P2d 386 Wright Blue (1958) Dist, 141, 145, Mt. 214 Or 328 P2d 314 Hospital cited, there repeal cases decide to civil en prohibitions, to define obligations forceable state by the and its and to agencies, replace *7 other, one with the so as constitutional limits long observed. a systematic Vehicle Code

The Oregon represents misleading usage, enact a valid cates constitutionality,” to our ^[5] to their Acts of cases, Seas to be tried for ence, Congress This is (which "He has combined with others to V Jnls. Cont. constitution, of the sometimes law) 1906). benefits include since but not to the see 29 Or pretended Legislation: and pretended Cong. presumptions properly refer confused with the of Trial the unacknowledged by presumption 1774-1789 at App offences: . legal by Jury:—For at subject us to conclusions . 510 notion of a . . For . .” Declaration of 566 P2d at our the (July 4, transporting laws; depriving at issue. a to jurisdiction the factual giving "presumption of 1776, Library us, many his us Independ- meant an beyond foreign Assent predi often to of

[100] with and legal procedures to match sanctions effort respects In some regulated. conduct to be types of criminal, civil, a elements drawn from hybrid of forfeitures, fines, It law models.7 treats administrative imposed and loss licenses as "civil to penalties,” of ac- by for "traffic infractions” either administrative 484.310-484.320, ORS ceptance voluntary payment, of proof a jury upon or a court trial without a by upon evidence,” the standard a of "by preponderance It cases. ORS 484.375. authorizes used civil of a driver’s license judge suspend non-payment the prosecu- a fine. ORS 484.415. It by allows appeals It treats as tion as well as defendant. ORS 484.405. crimes, "major,” all by triable criminal procedure, 484.010(5), "serious,” et seq., or 487.530 ORS ORS But it traffic offenses than other DUII. ORS 484.365. of extends of the many typically procedures arrest, detention, release on or recognizance, bail infractions as crimes. plea traffic well as traffic 484.100-484.140, 484.350; ORS also 484.435. ORS cf. hand, a of On other infractions as basis excludes or to convic- legal disabilities attached disadvantages crime, 484.350, tions of ORS including impeachment witness, said, a the use of 484.400. As we have traffic system these diverse elements a of devising is within the it departs laws state’s discretion unless standard, in this from constitutional case primarily I, § the standards article 11. prescribed m imposition There no test for when easy legislative prepared the code considered The interim committee states, including procedures the administra the trafffic of several offense tive model used in New York. It concluded: adjudication may Although merit further . . . administrative future, a scheme in the we believe that such consideration state needs, present Oregon’s time.. . . appropriate for least for the is not at which, view, then, position represents while a middle Committee’s many advantages incorporating procedural administrative of an judge adjudication system, role the traffic the traditional retains facing problems him. designed now and is to alleviate the caseload Ass., Judiciary, Report: Proposed Leg. Interim Or. Committee on Code XIV Revision Vehicle *8 sanction is a "criminal prosecution” within the mean ing of the constitutional guarantees. The starting point, course, is the law under which the sanction is imposed. When the legislature has defined conduct as a criminal offense, it is a criminal offense for constitu tional purposes even if the same could consequences have been attached to the same conduct by civil or administrative But it proceedings. does not follow that a law can avoid this result simply by avoiding the term "criminal” in defining the conduct to be penalized. Constitutional guarantees have more substance than that.

A number of indicia have been used to determine an ostensibly civil penalty re proceeding mains a "criminal prosecution” for constitutional pur poses. See Need Constitutional Pro Chamey, for tections in Civil Penalty Cases, 59 Com for Defendants L Rev Civil and Criminal Penalties (1974), Clark, 478 A Framework Constitutional Forfeitures: (1976). Analysis, 60 Minn L Rev 379 relevant, All are but none is conclusive on what we believe is the ultimate determination. A. Type whole, On the it is not very of offense.

helpful refer to the or "gravity” the "nature” of the offense as a criterion,8 since this is the legislative judgment which the state claims to have made in it. "decriminalizing” The offense may have been a crime at law, common or at the time the constitution was adopted, or for a long time thereafter. Similarly, elements of mens rea or a may involve traditional lower degree These culpability. characteristics can bear on whether the downgrading marks a genuine change in the public assessment of the conduct or merely short-cuts, seeks procedural but do not they mean that what was once a crime can never be regulated by other means. Colts, 63, (1930), e.g., District v. 282 US 75 L Ed 177 8See Columbia very stating that reckless "in its nature is malum in se.” This court Boag, regarded

has DUII before its "decriminalization.” See State v. 154 so (1936); Davis, P2d 207 Or 296 P2d 240 Or State Traffic offenses as we know them are largely 20th-century phenomenon. They well have been *9 assigned to the courts in criminal form as much because the form was familiar and the courts available as by any deliberate among choice alternatives. This does not prevent a later not decision to treat traffic offenses as crimes.

B. Penalty. The prescribed penalty is generally regarded as the criterion, most single important at least when it Indeed, involves imprisonment. "de criminalization” of one-time criminal offenses ordi narily assumes the sanction of imprisonment abandoned, must be and the state’s main argument the line between traffic infractions and traffic crimes can be defended this criterion alone. We that, agree "imprisonment” cannot be used as "punish ment” offense; here, for a civil too, but as much on depends the significance of those words as on the confinement itself. The law employs con compulsory finement in looking after persons suffering from mental disease, or incapacity infectious or children in need of supervision or in protection, securing material witnesses or aliens awaiting deportation, without turning these cases, into criminal so as long detention is for a and non-punitive purpose ends with It purpose. detention, is the punitive use of such, detention as that defines the criminal off ense.9

By token, the same potential absence of impris- onment does not a conclusively prove punishment non-criminal. The assessment has been made on two factors—the severity of the penalty it is Clark, "infamous.” See 383, 401-404, supra, at Char- ney, supra, 501-505, at and cases cited. The second of these relates again to significance attached to 9 public A plea guilty charge trial pulmonary on a of not to a consumption, over attempting a defense of mere moral illness in to defraud company, Erewhon, an insurance reprinted is described in Samuel Butler’s Goldstein, Dershowitz, Schwartz, Law; Theory Criminal and Process referred, even for a to which we have

imprisonment severe, as short term. But a fine large terms, and so as short practical imprisonment, a sig- as the same strikingly carry punitive severe nificance. sets the max- Vehicle Code presently at D

imum fines for traffic infractions for Class $50 infraction, B, for C, Class Class $100 $250 A $1,000 for 484.360. a Class A infraction. ORS Class Driving two while only includes named offenses: under and failure influence of intoxicants in an perform the duties of a driver involved accident 484.365(3),10 resulting only damage, property although others into that class. ORS 484.370. may fall

Courts reluctant understandably pick measure of a particular rigid stun of money *10 for this measure has rights, defendant’s constitutional stability less than the six history less and much of of a federal jail petty months chosen as measure 373, 384 Ct offense. US 86 S Schnackenberg, Cheff v. 1523, (1966), L see 16 Ed 2d Baldwin v. New 629 (1970). L York, 66, 1886, 399 90 26 Ed 2d 437 US S Ct recently Two federal courts of have drawn appeals Hamdan, 276 line at United v. 552 F2d $500. States (9th 1977), Realty Cir v. First National Douglass (DC 1976). If 543 a line Corp., F2d 894 Cir must drawn, this even if it cannot be conclusive plausible, is $1,000 nor for It little about a fine permanent. proves that much driving under the influence intoxicants of enter larger against civil are levied business penalties in the prises regulations for violations of various 11 with fines payable course of deal here business. We by for misconduct unrelated individuals ordinary regulated not activity, of a pursuit profitable or with the of a cabdrivers, rights truckers and indeed 10 or in an accident involved of a driver perform the duties Failure to 484.365(4). These injury crime. OES causing is a traffic or death collision prescribed in 483.602-483.606. OES are duties 11 454, union, Hoffman, against US S Ct Muniz v. 95 Or a labor Ed 45 L 2d 319 as an to counsel who claims petitioner fine, if in itself a $1,000 In a this context indigent. must be at civil penalty, rather than criminal is At the least discretion. legislative of margin significance the punitive evidence of strong fine. to give meant significance No similar C. Collateral consequences. or suspension collateral the direct or attaches a traffic offense. a driver’s license revocation of than rather "criminal” become The offense does not is a great of a license the loss merely "civil” because or revocation inconvenience, suspension as the long so judg or administrative a legislative, judicial, reflects not continue to should traffic offender ment deprivation Again drive. the question as for punishment, of or another form regulatory fine, for nonpayment instance its imposition 484.415.12 in- punitive Evidence of

D. Punitive significance. hold Court to Supreme tent has led the United States to the constitutional ostensibly sanctions non-penal Mendoza-Martinez, Kennedy standards for crimes. (1963). This 554, L Ed 2d 644 372 US 83 S Ct issue of criteria face the test courts to requires most difficult one of the oldest "punishment,” when phrased easier It is not made issues law. purposes law. The purpose terms of the dangerous incapacitating law from (apart confinement) stated to be customarily offenders 169, meaning id. at deterrence”, see "retribution and of defendant the individual both of deterrence *11 is deterrence But generally. in his situation persons sanctions, "punish- so other of a purpose equally retribution it, and from deduced cannot be ment” aim legislative a sense of in the only purposive of victims or the of outrage public reflect commit the use of in 161.685 between 12Compare the difference ORS (subsection 2) "imprison paid and contempt a fine is until civil ment for year, with time non-payment much as a contempt for as for ment” for (subsection 4). fine toward credited ^[105] condemned acts. And aim, this turn, is confined the constitutional prohibition against vindictive jus- tice.13 "What distinguishes a from a civil sanction and all that distinguishes it,” a leading concluded, scholar "is the judgment of community condemnation which accompanies its justifies imposition.”14 The stigma of that condemnation can accompany imposition of a sanction whether it is imprisonment, fine, or else; and its something presence a judgment of conviction, as much as the potential sanction itself, makes the to a jury peculiarly to a appropriate criminal prosecution. test,

This whether a judgment carries stigmatizing or condemnatory has been significance, criticized for its difficulty. True, See at 496. Charney, supra, we have no litmus paper punitive significance, that used United States Court shows Supreme red and blue in In inconsistent patterns. part difficulty unavoidable, since of a significance law differ in may defendants, eyes legislators, Moreover, and of the general their views can public. change time, with legislative decision to de criminalize an offense lead the may public’s perception as well as follow it. The of the law very language contributes to the when civil problem penalties law, imposed in the familiar of criminal terms no 13The 1859 constitution hopeful commits the state to the aim of "reformation,” pessimism whatever the more recent on that score. punishment Laws for the of crime shall be founded on the principles reformation, justice. I, and not of vindictive § Or Const art 15. 14Hart, Law, Contemp. Aims the Criminal 23 Law & Prob. (1958). Clark, supra, agrees: . . . Where we sense an pain, animus behind the infliction of even where an purpose may exist, alternate we become ambivalent attitude, our attempting person "really to determine what the'other meant.” punishment Whether frequently or not depends exists thus on attitude, you will, or the purpose, motivation or dominant if of the

party imposes who question. the burden in perception This psychological punishment of the nature of seems enough. reasonable . . . only But he legislative criticizes history reliance on to establish this element. 60 Minn L Rev at 438. *12 doubt because are familiar. they "Penalty” cognate penal and the code itself states punishment, 484.350(1). that infractions ORS A "punishable.” defendant who is asked to declare whether he is "guilty,” 484.190, 484.310-484.320, ORS or who is "convicted” such, 484.365, 484.415, ORS reasonably conclude that the judgment carries stigma of condemnation. these Again, terms of the code are only issue, relevant to the not conclusive. have,

We however, additional evidence of the legis lative assessment of DUII compared to the other traffic offenses. The legislative interim committee prepared code was point at out that it pains did not regard this offense as less serious than reckless driving and others that remain "major” or "serious” offenses, triable as crimes. Its report, supra note stated:

A classification and adjudication system limited to the so-called "minor” traffic cases would measurably not reduce the volume of docketed traffic cases the district courts. Consequently, urges the Committee suggested traffic infraction classification of offenses include the first offense DUIL if no element of danger- ous By is involved. no means should this proposal be misread as de-emphasizing the serious nature or as being drinking driver. A traffic offense ’’soft”on infraction, being by punishable imprisonment, would not demand procedures criminal and could be tried the court jury without a and with the proof standard of being a preponderance of the evidence instead of proof added.) beyond a reasonable (Emphasis doubt. . . . Also the committee, and the retained legislature, criminal classification for the second and subsequent charges of DUII within five with years, potential punishment for as much imprisonment year. as a 484.365, ORS 161.545.15 indication is strong 15Petitioner contends that first-offense DUII must be tried as a prosecution because the code makes it an element in the second offense, Rowland, which is a crime. Artis v. 64 Wash2d 392 P2d Cf. (1964). However, apart significance apparent legisla- from its for the

[ 107] this decision represented legislative desire to "decriminalize” the procedure offense, rather than the relying on the $1,000 single criterion of the fine instead of imprisonment accomplish aim.

E. Arrest and detention. Finally, bears on the constitutional distinction between a civil case and a "criminal prosecution” that the Oregon Vehicle Code *13 retains many of the pre-trial practices used in the enforcement of criminal laws. It by is now well understood that this process encompasses the stages before charge, plea, and trial as well as the trial itself. The statutes place major traffic offenses with felonies and misdemeanors in the law of arrest. ORS 133.310. A person thus arrested faces the possible use of physical restraints, handcuffs, such as a search of the person, booking (including the taking fingerprints or photographs), and detention in if jail not released by police officers, or at a later time aby magistrate. See 484.435, ORS 484.100-484.140. Of course a traf fic offender must be subject being to stopped, compare ORS 131.605-131.615, and in the case of apparent intoxication prevented from his resuming driving. Often that could be accomplished by other means. But detention beyond the needs of identifying, citing, and protecting the him, individual or "grounding” especial ly detention for trial made, unless bail comports with criminal rather than with civil procedure and is surely so perceived the public.16 DUII, tive assessment of this use of the first the offense in second can properly challenged only prosecution. in the later That was the situation Alabama, McKinney 1189, 47 (1976), 424 US 96 S Ct L Ed 2d 387 petitioner on which relies. single 16Of course this element does not turn all traffic offenses into prosecutions. important assuming criminal We feel safe in it is more to that legislative Oregon the scheme of the Vehicle to decriminalize traffic Code incompatible aspects custody” infractions than to retain "full the effectively detention for those decriminalized. offenses otherwise are DUII, used, respect likely But with to where such detention is most to be accomplished. is one more reason to doubt that aim has been

IV that, we conclude on On these elements reviewing under influ balance, code’s offense intoxicants, punish its enforcement ence not to be a ment, retain many penal too characteristics I, section 11 of under article prosecution” "criminal follows, said, have It we constitution. of this entitled to the petitioner protections _ prosecutions, other sections governing But counsel. including representation appear does not an preclude Vehicle Code cases; infraction ance with counsel in traffic contrary, provides prosecution counsel. by an defendant has appear attorney unless rather, is, ORS 484.390. The question is entitled to defendant who cannot afford counsel DUII against court-appointed counsel defend charge.

Petitioner a trial involving contends that $1,000 at fine and collateral potential consequences here, United stake without imprisonment, even States of counsel Constitution mandates appointment *14 v. Argersinger the under Court’s decision Supreme Hamlin, so, the supra n 1. That be although well may the The words of majority opinion open. left issue concurring, par- Justices Powell and are Rehnquist, ticularly apropos: may result convic- consequences

Serious also from Stigma punishable by tions not imprisonment. or a hit-and-run drunken-driving attach to a conviction is more serious for escapade. Losing one’s driver’s license jail. . . stay some than a brief . individuals . . . position . . . The the indicates thrust of Court’s made, the rule will be that when the decision must the except perhaps petty extended to all cases offense 48, 51, L 407 US at 32 minor . . . most traffic violations. 2d at Ed 546. this view

However, we need not anticipate has long provided law. Oregon has become federal court-appointed counsel indigent defendants criminal prosecutions. See ORS 135.050. Traffic crimes no exception. Argersinger, Before this court stated that right considered to counsel more the essential to a fair trial than the to a one of jury, very the rights to which we the DUII defendant hold 99, 458 Holzman, entitled. Stevenson Or P2d course, trial, Of a jury proof beyond a doubt, reasonable and the other many protections surround criminal make the prosecution assistance of counsel nearly for the indispensable ordinary defendant, Thus, has legislature recognized. while the Vehicle Code excludes the appoint ment counsel for those infractions which has turned into civil we do not doubt proceedings, where this has been accomplished would expect the offense to remain under same statutory provisions for of counsel as the appointment other traffic crimes.

Conclusion Today’s only decision concerns offense driv- ing under the influence of present intoxicants in its status under the Oregon Vehicle Code.

The code represents good faith effort to deal with traffic offenses in the courts in regular forms other than law. such a Nothing prevents de offenses, criminalization of traffic if it fully carried Nor out. need it exclude the under offense that, the influence of intoxicants. hold consid only We fine, ering magnitude of the the second potential ary sanctions in case non-payment, relationship of DUII offenses, to the major other traffic the evident legislative desire to emphasize seriousness of this offense while punishment, its and the facilitating retention of criminal law procedures, enforcement 1975 code did not free this from punitive offense traits that characterize a criminal Ac prosecution. *15 cordingly, petitioner is to the entitled constitutional and statutory in the protections prosecutions afforded major remained that offenses the other traffic of of the Court The decision under the code. traffic crimes Appeals remand the instructions is reversed with with in accordance case to the circuit court opinion.

Reversed. concurring. specially

TONGUE, J., majority, by but the I concur in the result reached by majority reasoning adopted not in all of the reaching that result. agree

Among things, with I do not other § upon majority primary I, 11 of Article reliance its my opinion, same In Constitution. required by XIV to VI and Amendments result is not foreclosed Constitution of the United States Supreme the United decisions of the Court States, as I read those decisions. majority willing concede,

I am also not apparently "de- pro- hold, would that the any serious, offense, how no matter criminalize” completely, only properly and vided that does so "factors” the various after consideration of all of the offense involved, and that the seriousness only never be and can "one factor” to be considered "conclusive.” willing particular, I to concede

In am not legislature may "first offense” "decriminalize” any only leave for criminal serious crime any prosecution offenses of all further as a crime According person. to the same the same nature properly majority, question raised in be cannot upon only properly raised this case and can I prosecution offense. or further for a second except willing correct, that this is am not to concede upon any an "en- based the extent contention obviously penalty” can offense for a second hanced trial for a first offense. be raised on

[Ill] *16 It from the of the appears legislative history Motor the legislature Vehicle Code con- sidered driving under the influence of intoxicants to be a serious offense of the potential danger because of death or serious other injury pedestrians, to to motor- to ists and their the passengers, primary for "decriminalizing” reason first offense for DUIL was that:

"Procedurally, the traditional criminal treatment of upon Oregon’s traffic offenses severe put has stress system. heavy caseloads, minor court Frequently the * * * in particularly court caused lengthy district have in delays bringing trial the more cases such as to serious driving intoxicating those for the of under influence (DUIL). with liquor person charged felony a Whereas days in state in most is tried within cases arrest, it is not to find six months periods unusual or * * *” longer between trial in DUIL cases. arrest and this does mean that in the event of Surely in congestion heavy the as the result of a load of courts such prosecutions serious crimes as bur- for glary, robbery, or with a dangerous weapon, assault the the legislature may away right take constitutional by to trial the to court counsel jury, right appointed and the proof guilt beyond require reasonable doubt first offenses simply by all "infractions,” "redefining” all as leaving first offenses for criminal all further offenses of the prosecution same person. nature the same

HOLMAN, J., dissenting.

I do not with the factors or the methodolo- disagree the gy problem, used in its majority analysis weight given but I do disagree apparent with the factors, event, that it is and, disagree different I any statutory hold entire necessary unconstitutional while driving first offense scheme as relates under influence. such crime there was no commencing

As a point, one. originated drunken until legislature abol- summarily may in its discretion instance In the crime, present if it such a desires. ish it accom- is whether intended, issue only and the so constitutional with its intention plished compliance has opinion majority’s Although requirements. least tangen- are at factors that many demonstrated two themof relevant, only my it is tially opinion a successful considering preeminent been accom- has to civil conversion from criminal imposed, which plished: penalty has who of a person permitted custodial treatment apprehended. been first, it is notable factor

Addressing penalty *17 first in to decriminalize the its intent that has the influence under offense while abolished the for the offense. Of any imprisonment in question here, it rights generally recognized by is all courts that the to be counsel is represented by Holzman, 94, the one. v. 254 preeminent Stevenson Or 99, 458 P2d 414 This court and Supreme Court of the United States have no further gone that holding entitled to than to persons say are counsel involved, if imprisonment is a defendant be must given appointed knowing counsel absent a waiver. Argersinger Hamlin, US 32 L 407 92 S Ct (1972); Holzman, Ed2d 530 If Stevenson v. supra. possible imprisonment determines one should be represented by counsel, it must also determine the Thus, entitlement is any right. majority lesser going further than this Supreme court Court of the gone. United States has ever Court of out, federal two

As the majority points the amount which as adopted $500 cases have Appeals Court of Supreme a trial.1 jury requires upon doubt threw States considerable United $10,000 fine of a limit when money approved not fine, admittedly, was trial, a which jury without 1 (9th Hamden, 1977); Douglass v. F2d 276 Cir States v. 552 United (DC 1976). Corp., Realty F2d 894 Cir National First

against an Although individual.2 the majority admits $1,000 is "at the margin of legislative discretion” when against individual, levied an it is apparent some members of the about the concerned majority $1,000 size of a possible fine. I would hold that fine could be imposed claimed protections without here. A stated amount of is an money thing unstable upon which to a unconstitutionality, base because finding its relative value for is transient. The basis the $500 1(3), § figure used federal is 18 USC courts which defines law "petty a under federal to be an offense” offense the maximum for which is punishment more jail. $500 than fine and six months in The $500 figure was established federal statute has been never has about one- changed. Today $500 1930; fifth the purchasing had power conversely, in 1930 had the power approxi- $500 purchasing $2,500 if mately However, $1,000 even today. presently large sum of money require enough claimed, protections I not deem is necessary do hold the entire application of the statute to a first offense of driving under the influence to be unconstitutional. My subsequently. reasons therefor will be explained a person Insofar handling ap- custodial prehended concerned, for a most certainly violation no can inferred from criminal connotations such detained, person’s being separated from temporarily vehicle, searched, handcuffed, his if necessary, his own protection and for the protection others. *18 However, itas is out in pointed the majority’s opinion, held answer to the permit being statutes his to in lieu of bail. charge person may constitutionally No bail, of be held to answer to in lieu charge a civil such a is unenforceable. provision patently

If a who was to person subject was held to bail raise issue a writ habeas he would corpus, of him turned to so hold would promptly be loose because be an unconstitutional of the bail statute. application Hoffman, Muniz v. Ed2d 319 US 95 S Ct 45 L

[114] the entire to invalidate then, are we required Why, single provision a only when of the statute application is no There unenforceable? obviously of the statute is the bath water.” with necessity baby to "throw out the more certainly it was The that majority recognizes driving to the to decriminalize important the bail under than to retain while the influence feel safe in assum- states, The "We provision. majority scheme that ing legislative is more to important traffic decriminalize of Vehicle Code to aspects infractions than to the incompatible retain that other- 'full detention for those offenses custody’ * * *.” Note 16. are effectively wise decriminalized. the difference same is reasoning applicable If $1,000 is person between a fine of and one $500. $1,000 issue, fined and raises we would rather, we invalidate the entire statutory application; It would limit limits. is the fine to within allowable the difference clear these two provisions criminal and one between statute that is arguably is civil. Had two provisions to these challenges sustained, would not we been made previously the present in our resolution them have considered There the statute. have sustained but would challenge the statute sustain not so why reason we should is no inten- frustrate completely now or we should why which something to do the legislature tion of decriminalize within its admittedly power—to to allow obligation It our influence. while under the intention its carry expressed out the legislature offend which the statute those voiding portions is, clear, it is when requirements, constitutional critical have been would not those portions of the act. passage therefore,

I, dissent.