State v. Ramirez

312 Or.App. 117

493 P.3d 522

STATE of Oregon, Plaintiff-Respondent,

v.Ricardo SANTOS RAMIREZ, aka Sergio Martinez Gonzales, aka Ricardo Santo Ramirez, Defendant-Appellant.

A167114

Court of Appeals of Oregon, En Banc.

Submitted September 19, 2019

Resubmitted en banc September 21, 2020

June 3, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah De La Cruz, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Hannah K. Hoffman, Assistant Attorney General, filed the brief for respondent.

Before Egan, Chief Judge, and Armstrong, Ortega, DeVore, Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers, Mooney, and Kamins, Judges.

DeHOOG, J.

Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, contending, among other things, that the trial court erred in relying on two earlier out-of-state convictions in permanently revoking defendant's driving privileges under ORS 809.235(1)(b).¹ In his first assignment of error, defendant argues that the trial court erred in relying on a California judgment of conviction for DUII despite there being insufficient evidence that defendant was the person named in the judgment. In defendant's second assignment of error, he contends that the trial court erred in concluding that his Washington conviction for first-degree negligent driving qualified as a predicate offense under ORS 809.235(1)(b)(B). For the following reasons, we agree with defendant that his Washington conviction did not qualify under that statute and, therefore, remand for resentencing.²

The relevant facts are procedural. Defendant entered a plea of guilty to DUII without sentencing concessions from the state. At the sentencing hearing, the state argued that, although defendant's current DUII conviction did not qualify as a felony because at least one of his prior convictions was too old, he did have two previous convictions for "DUI type offenses" that, collectively, triggered the mandatory license revocation provisions of ORS 809.235 (1)(b). As relevant here, one of the convictions was for the Washington offense of first-degree negligent driving, which Washington law defines, in part, as follows:

"(1)(a) A person is guilty of negligent driving in the first degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to endanger any person or property, and exhibits the effects of having consumed liquor or marijuana or any drug * * *."

Revised Code of Washington (RCW) 46.61.5249. The state described the negligent-driving conviction as a "pled down DUI" and told the court that the underlying plea petition included defendant's admission to "operat[ing a] motor vehicle in a negligent [manner] by exhibiting the effects of consuming alcohol." The state further explained that, as a result of that conviction, defendant had been ordered to undergo alcohol and substance abuse counseling and install an ignition interlock device.

Defendant objected, arguing that the Washington conviction did not qualify as a prior conviction under ORS 809.235(1)(b). He argued that what mattered was the "crime of conviction," and not any "potential statutory equivalents" or whether the sentence that had been imposed included probation terms typical in DUII cases.

The trial court concluded that defendant's Washington conviction qualified as a predicate offense under ORS 809.235(1)(b). Recognizing that an offense's "name is not always indicative of the nature of the crime," the court expressed its understanding that, under the case law, it was required to compare the elements of the Washington offense to the elements of DUII in Oregon. After examining the Washington statute, considering its associated definitions for "negligent" and "exhibits the effects of having consumed liquor or marijuana or any drug," and comparing it to the offense of DUII in Oregon, the court concluded that the offenses were sufficiently similar. The court explained:

"So it is not identical to driving under the influence of intoxicants, but it does basically include an element of being under the influence of alcohol and marijuana, and driving in a way that is negligent, so it's not exactly the same, but it is * * * I would say more similar to driving under the influence than reckless driving, for example, because it includes the element of being under the influence or exhibiting the effects of consuming an intoxicant."

Based upon its conclusion that defendant's negligent-driving conviction was for an offense sufficiently similar to DUII under Oregon law, the court relied on that conviction—together with the California conviction, which it accepted as being defendant's—and permanently revoked defendant's driving privileges. Defendant now appeals, contending that the trial court erred in revoking his driving privileges based, in part, on his Washington conviction for negligent driving.

On appeal, defendant reprises his challenge to the trial court's use of his Washington conviction, but he takes a slightly different tack. Relying on our decisions in State v. Rawleigh , 222 Or. App. 121, 192 P.3d 292 (2008), and State v. Mersman , 216 Or. App. 194, 172 P.3d 654 (2007), rev. den. , 344 Or. 390, 181 P.3d 770 (2008), abrogated by State v. Guzman , 366 Or. 18, 46, 455 P.3d 485 (2019), he recognizes that a "statutory counterpart" to ORS 813.010 from another jurisdiction qualifies as a predicate offense under ORS 809.235(1)(b), but he argues that the first-degree negligent driving statute does not qualify as a statutory counterpart to Oregon's DUII statute. See ORS 809.235(1)(b)(A)(ii) (providing that a "statutory counterpart to ORS 813.010 in another jurisdiction" is a predicate offense under ORS 809.235(1)(b) ). Citing our decision in Mersman for the proposition that, for an out-of-state statute to qualify as a statutory counterpart to ORS 813.010, the two statutes must be "either remarkably similar or have the same use, role, or characteristics," defendant explains why, in his view, the negligent-driving statute does not satisfy that test. Mersman , 216 Or. App. at 203-04, 172 P.3d 654.

The state, in turn, argues that defendant's "statutory counterpart" argument is beside the point, because proving that Washington's first-degree negligent-driving statute is a statutory counterpart to ORS 813.010 is only one of several ways to establish it as a predicate offense under ORS 809.235(1)(b). See ORS 809.235(1)(b)(A) (treating, as predicate offenses, prior convictions under ORS 813.010 or a "statutory counterpart").

Here, the state argues, the trial court properly treated defendant's Washington conviction as a predicate offense under ORS 809.235(1)(b)(B). Citing Dyrdahl v. DMV , 204 Or. App. 509, 131 P.3d 770 (2006), the state argues that that provision requires only that the out-of-state provision "criminalize activity that is ‘substantially similar’ to activity that Oregon considers to be ‘driving under the influence.’ " And, quoting a decision of the Washington Court of Appeals, the state reasons that "the Washington statute, RCW 46.61.5249(1)(a), is a ‘driving under the influence of intoxicants offense’ because it criminalizes driving dangerously while ‘exhibit[ing] the effects of having consumed liquor or marijuana or any drug.’ " See State v. Mullen , 186 Wash. App. 321, 334, 345 P.3d 26 (2015) (stating, in dictum , that a "person may not be guilty of first degree negligent driving unless he is under the influence of alcohol or drugs").³

As we will explain, we agree that the state was not required to establish that the Washington statute was a statutory counterpart to ORS 813.010 for the trial court to treat it as a predicate offense. We conclude, however, that defendant's conviction for first-degree negligent driving under RCW 46.61.5249 did not fall within the provisions of ORS 809.235(1)(b)(B), the statute that the state relies on in this appeal. Accordingly, the trial court erred in relying on defendant's Washington conviction as a basis for permanently revoking defendant's driving privileges.

Before addressing that issue, we set out more completely the license-revocation provision at issue in this case. As relevant here, ORS 809.235(1) provides:

"(b) The court shall order that a person's driving privileges be permanently revoked if the person is convicted of felony driving while under the influence of intoxicants in violation of ORS 813.010 or if the person is convicted for a third or subsequent time of any of the following offenses in any combination:

"(A) Driving while under the influence of intoxicants in violation of:

"(i) ORS 813.010^[4]; or

"(ii) The statutory counterpart to ORS 813.010 in another jurisdiction.

"(B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving of a vehicle due to the use of intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination thereof.

"(C) A driving offense in another jurisdiction that involved operating a vehicle while having a blood alcohol content above that jurisdiction's permissible blood alcohol content."

As framed by the trial court's decision and the arguments on appeal, our primary analytical task in this case is to construe ORS 809.235(1)(b)(B), and particularly to determine whether the Washington offense of first-degree negligent driving is, within the meaning of that provision, "[a] driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving of a vehicle due to the use of intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination thereof." That question requires us to determine the meaning of both ORS 809.235(1)(b) and RCW 46.61.5249, and we review the trial court's application of those provisions for legal error. See, e.g ., Alfieri v. Solomon , ...