State v. Drumbor

307 Or.App. 630

478 P.3d 987

STATE of Oregon, Plaintiff-Appellant,

v.Charles DRUMBOR, Defendant-Respondent.

State of Oregon, Plaintiff-Appellant,

v.Carol Wilmer Day, Defendant-Respondent.

A165648 (Control)

A165654

Court of Appeals of Oregon.

Argued and submitted November 28, 2018.

November 25, 2020

Joanna L. Jenkins, Assistant Attorney General argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Scott H. Terrall argued the cause and filed the brief for respondent Carol Wilmer Day.

Rosalind Lee and Stacy M. Du Clos filed the brief amicus curiae for Oregon Criminal Defense Lawyers.

No appearance for respondent Charles Drumbor.

Before Powers, Presiding Judge, and Egan, Chief Judge, and Landau, Senior Judge.^*

POWERS, P. J.

In this consolidated criminal appeal, we address the statutory framework requiring an ignition interlock device or IID for drivers who enter diversion after being charged with driving under the influence of intoxicants (DUII). More specifically, the question presented in this appeal is whether defendants who decide not to drive during their diversion period and therefore do not install an IID must nevertheless do so before the IID requirement is removed from their driving record. The state appeals from an order granting defendants’ motions to remove the IID requirement from their respective driving records, arguing that the trial court erred, because defendants failed to comply with the requirement to submit a certificate demonstrating that the IID did not record a negative report for 90 consecutive days. As explained below, because the statutory framework affirmatively requires drivers to submit a certificate to remove the IID notation from their driving record, the trial court erred in granting defendants’ motions. Accordingly, we reverse and remand.

BACKGROUND

Although each case arose separately and were later consolidated to consider the motions to remove the IID requirement, we describe the relevant procedural facts, which are undisputed, together. Defendants were separately charged by a district attorney information with one count of DUII, ORS 813.010, and one count of reckless driving, ORS 811.140. They each petitioned the court to enter diversion under ORS 813.200, whereby they could avoid a criminal conviction for DUII and obtain a dismissal of that charge upon successful completion of the diversion. See ORS 813.200 ; ORS 813.220 (outlining criteria the court shall consider for whether to allow or deny a diversion petition). Each defendant also entered into a negotiated agreement (sometimes known as a "reckless setover agreement") under which the reckless driving charge would be dismissed upon successful completion of diversion. The court allowed the petitions, and each defendant began a one-year diversion period. As part of the court's order allowing the petitions, the trial court entered an order mandated by ORS 813.602(3)(a)(A) that defendants must install and use an IID "in any vehicle operated by the person during the period of the agreement." Further, as required by ORS 813.604(1), the court sent a copy of its orders to the Oregon Department of Transportation, Driver and Motor Vehicle Services Division (DMV), which must place a notation on the driving record of the person required to install the device.

In each case, defendants refrained from driving during the diversion period and did not install an IID. At the end of their respective diversion periods, the trial court deemed that defendants had successfully completed their diversions and dismissed the DUII and reckless driving charges.

Shortly thereafter, each defendant sought to have the IID requirement removed from their driving record by filing respective motions for an order to vacate the IID requirement. The state objected to the motions, arguing that, before the IID notation can be removed from their driving records, defendants must provide DMV with a certificate demonstrating no negative reports for 90 consecutive days under ORS 813.635(1)¹ The trial court allowed the parties to join the cases for a hearing and also allowed DMV to appear as a witness.

At the hearing, defendants argued that the IID requirement did not apply to diversion participants who refrained from driving during the diversion period, never installed an IID, and successfully completed diversion.²

Under their interpretation of the statutory framework, the requirement in ORS 813.635(1) —to demonstrate 90 consecutive days without a negative report—was triggered only when a diversion participant elected to drive during the diversion period. The state contended that ORS 813.635(1) did not create a new, separate requirement to install an IID; rather, ORS 813.635(1) extended the duration of the requirement beyond the diversion agreement until the participant submitted a certificate from their IID provider to DMV indicating that there had been no negative reports for 90 consecutive days.³ According to the state, the statutory framework only provided two pathways to remove the IID notation from a driving record: (1) by complying with ORS 813.635 or (2) by obtaining an order from the court under ORS 813.645.⁴ Choosing not to drive, in the state's view, is a way to avoid the IID requirement during the diversion period but does not otherwise provide a pathway to the removal of the IID requirement in its entirety.

The trial court granted defendants’ motions and concluded that the IID requirement was extinguished when a participant successfully completes diversion.⁵ The court explained:

"By its terms, ORS 813.635 [(1)] only continues ‘the requirement to have an ignition interlock [device] installed in a vehicle.’ Notably, there is no statutory provision requiring participants in the diversion program to install an IID; rather the court must order diversion participants to install an IID in any vehicle a diversion participant drives during the diversion period. ORS 813.602(3). If the participant does not drive during the diversion period, there is no statutory or court-ordered requirement to install an IID, and therefore no requirement to continue under ORS 813.635 [(1)].

"* * * * *

"Nowhere in the statutory scheme does the Legislature expressly require diversion participants to install an IID. It is indisputable that diversion participants may comply with their diversion agreement, including the court's order under ORS 813.602(3), by not driving any vehicle during the diversion period. It is inconsistent with the text and context of the statutes to infer a requirement to install an IID into ORS 813.635 [(1)], which according to its terms, imposes consequences for negative reports, not for refraining from driving during the diversion period.

"* * * * *

"This Court concludes that the court order, imposed as a condition of entry into the DUII diversion program, requiring diversion participants to install an IID in any vehicle the participant drives during the diversion period is extinguished when the diversion participant successfully completes diversion resulting in dismissal of the DUII charge and the participant did not drive during the diversion period. Accordingly, defendants’ motions are GRANTED."

(Uppercase in original; footnote omitted.)

On appeal, the parties renew their arguments on the statutory framework governing the IID requirement. To gain a wider perspective on the issue before us, we asked the Oregon Criminal Defense Lawyers Association (OCDLA) to consider filing an amicus curiae brief, which it did. OCDLA largely reinforces defendants’ argument that, successful diversion participants who did not drive during their diversion agreement periods are not required to install and use an IID. ORS 813.635(1) continues an existing requirement to install an IID and does not, OCDLA argues, retroactively create an obligation to install a device, when such a duty did not previously exist. As a matter of legislative intent, OCDLA contends that the statute's use of the definite article "the" and the word "continues," both support defendants’ interpretation because they "presuppose a pre-existing installation requirement and existing device." In other words, a diversion participant's duty to install and use an IID is triggered only when she or he operates any vehicle during the diversion agreement period. Consequently, OCDLA asserts that a "diversion participant who does not drive is never required to install an IID, because she never has a duty to install under the express condition for vehicles ‘operated by the person during the period of the agreement.’ " (Emphasis in original.)

The parties’ dispute presents a question of statutory construction, which we review for errors of law. OR-OSHA v. CBI Services, Inc. , 356 Or. 577, 585, 341 P.3d 701 (2014). When interpreting a statute, our goal is to ascertain the legislature's intent by examining the statute's text, context, and any relevant legislative history. State v. Gaines , 346 Or. 160, 171-72, 206 P.3d 1042 (2009).

INTERLOCK IGNITION DEVICE (IID) STATUTORY FRAMEWORK

To give context to the current IID framework, we begin by describing the framework as it existed before the legislature's 2015 amendments. See Gaines , 346 Or. at 171-72, 206 P.3d 1042 (explaining that a court may consider pertinent legislative history to determine the legislature's intent).

Under the pre-2015 framework, the IID notation placed on a person's driving record automatically expired once the person was no longer required to use an IID. That is, the length of the IID requirement depended on the nature of the DUII violation. See ORS 813.602 (2013) (outlining the length of time required to "install and use an approved ignition interlock device" depending on whether it was a person's first conviction, subsequent conviction, or if the person entered diversion). After a court ordered the installation of an IID, ORS 813.604(1) (2013) required the court to "send a copy of the order" to...