State v. Yocom

555 P.3d 322

334 Or.App. 34

STATE of Oregon, Plaintiff-Respondent,

v.Samantha Kelly YOCOM, Defendant-Appellant.

A177722

Court of Appeals of Oregon.

Argued and Submitted August 21, 2023

July 31, 2024

Lane County Circuit Court, 20CR66634; Kamala H. Shugar, Judge.

James Brewer, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Emily N. Snook, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, Hellman, Judge, and Armstrong, Senior Judge.

ORTEGA, P. J.

₃₆Defendant appeals from a judgment convicting her of misdemeanor driving while suspended, ORS 811.175 and ORS 811.182(4), raising three assignments of error. First, defendant challenges the trial court’s denial of her motion to suppress evidence, arguing that former ORS 802.093 (2021), repealed by Or. Laws 2022, ch. 25, § 3, which created a temporary moratorium on issuing citations for certain traffic offenses under limited circumstances, rendered any stop to investigate such an offense unlawful. Second, she argues that the trial court erred in overruling her hearsay objection and admitting a copy of a Department of Motor Vehicles (DMV) report as a business record at trial. Third, she argues that the trial court plainly erred in failing to exercise discretion to suspend a mandatory fine.

We reject defendant’s first assignment of error because we conclude that the moratorium on issuing citations for certain traffic offenses in former ORS 802.093 (2021) did not affect law enforcement officers’ statutory or constitutional authority to stop and investigate those offenses. We reject defendant’s second assignment of error because we conclude that the trial court did not err in overruling defendant’s hearsay objection and admitting her DMV driver record to prove that defendant’s license was suspended for driving under the influence of intoxicants (DUII) at the time she was stopped. We also reject defendant’s third assignment of error because the record shows that defendant preserved her argument that the court should suspend execution of the mandatory fine and that the trial court exercised its discretion not to suspend it. We therefore affirm.

MOTION TO SUPPRESS

[1] "We review a trial court’s denial of a motion to suppress for legal error and are bound by the court’s explicit and implicit factual findings if evidence in the record supports them." State v. Stevens, 329 Or App 118,120, 540 P.3d 50 (2023), rev. den., 372 Or. 437, 550 P.3d 413 (2024). The relevant facts are few and undisputed. While on patrol in November 2020, a Lane County deputy sheriff stopped defendant for driving a car with registration stickers that had expired in 2019. ₃₇See ORS 803.560(1)(b) ("A person commits the offense of improper display of validating stickers if the person owns or drives a vehicle on which the display of registration stickers provides proof of valid registration and * * * [t]he stickers are displayed on the vehicle after the registration period shown on the stickers."). The deputy was aware that the legislature had instituted a moratorium on citations for that traffic violation, but he believed he had probable cause to stop defendant. The deputy approached defendant and asked for her license, registration, and proof of insurance. Defendant said that she did not have a license, that she should not be driving, and that she had just purchased the car. Defendant produced the car’s title, which was still in another person’s name, and a bill of sale signing the title over to her. The deputy asked dispatch to run a records check on defendant and learned that her license was suspended "at the misdemeanor level." The deputy cited defendant for driving while suspended but did not cite her for the traffic violation.

Defendant moved to suppress all evidence obtained from the traffic stop under Article I, section 9, of the Oregon Constitution. She argued that the deputy lacked probable cause to believe that she had committed a traffic violation under former ORS 802.093 (2021),¹ which provided, in relevant part:

"(1) As used in this section, ‘document or credential’ includes but is not limited to documents or credentials issued or accepted by the Department of Transportation such as vehicle registration, registration stickers, driving privileges, declaration of weight, disabled person parking permits, trip permits, driver licenses and driver permits.

"(2) Notwithstanding any other provision of law, a police officer may not issue a citation for a traffic offense based upon a document or credential that expired or a document that was not submitted to the department during the period beginning on March 1, 2020, and ending on December 31, 2020. This subsection applies to the following offenses:

₃₈"* * * * *

"(j) Improper display of validating stickers under ORS 803.560.

"* * * * *

"(3) If a police officer issues a citation in violation of subsection (2) of this section, the court shall dismiss the charge."

In her motion, defendant argued that former ORS 802.093 (2021) "created a moratorium on the issuance of citations for driving with expired tags," which "effectively legalized" certain traffic offenses upon "the recognition that the COVID-19 related closures of DMV offices made updating this type of information difficult." At the suppression hearing, defendant further argued that the deputy lacked probable cause to stop her for driving with expired tags "because th[at] violation did not exist for [defendant] at the time of that police contact," and it was therefore unlawful for the deputy "to both stop [defendant] and investigate that offense."

The trial court denied the motion. First, the court observed that the text of the statute was ambiguous as to whether the date range—March through December 2020—referred to the time when a police officer could not issue a citation for certain traffic offenses, or to the time when the documents and credentials had expired or were not submitted. But the court concluded that the legislature intended the latter construction, in part because of the placement of that restriction at the end of the sentence instead of at the beginning. The court further concluded that, even if the statute applied to the traffic stop of defendant in November 2020 for tags that had expired in 2019, the stop was nonetheless supported by probable cause:

"[R]egardless of whether it modifies one part of the sentence or the other, the restriction is on issuing a citation. The legislature is aware of the importance of its choice of words and they did not prohibit a police officer from stopping a vehicle, which they could have done.

"They did not prohibit a police officer from warning a person, which they could have done. Instead, they restricted a law enforcement officer from issuing a citation. So I—I ₃₉think it’s my finding that it was a lawful stop. There was probable cause."

[2–4] Article I, section 9, establishes "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable search, or seizure." A traffic stop is a type of seizure. State v. Civil, 328 Or App 662, 668, 539 P.3d 317 (2023), rev. den., 372 Or. 156, 546 P.3d 284 (2024). "To conduct a stop for a traffic violation, Article I, section 9, requires that an officer have probable cause to believe that a violation occurred." State v. Sullivan, 322 Or App 563, 565, 520 P.3d 911 (2022), rev. den., 370 Or. 827, 526 P.3d 1188 (2023). Probable cause exists where an officer subjectively believes that it is more likely than not that an offense occurred and where that belief is objectively reasonable. Id.

On appeal, we understand defendant to challenge the objective component of probable cause. She argues that former ORS 802.093 (2021) barred officers from issuing citations for certain traffic offenses between March and December 2020 based on documents or credentials that were expired or were not submitted, regardless of when those documents or credentials had expired or were not submitted. From that premise, defendant argues that her "expired tags did not constitute a traffic offense" when the deputy stopped her in November 2020, so the deputy lacked probable cause to initiate the stop. Alternatively, defendant contends that "even if probable cause can exist for a traffic ‘offense’ that is entirely unenforceable, such probable cause could not constitutionally justify a traffic stop" because the stop "serves no purpose relating to the grounds that purportedly justify it" and the seizure was therefore "unreasonable."

The state responds that former ORS 802.093 (2021) barred officers from issuing citations for certain traffic offenses based on documents or credentials that had expired or were not submitted between March and December 2020 and that the moratorium did not apply to defendant, whose tags had expired in 2019. Alternatively, the state argues that even if former ORS 802.093 (2021) did apply to defendant, it did not effectuate a repeal of the traffic offense for which defendant was seized, but only restricted an officer’s authority to issue a citation. In the state’s view, even if the deputy ₄₀could not cite defendant for that offense, the deputy had probable cause to initiate a traffic stop and to investigate the violation, during which the deputy could give a warning and information on the duration of the citation moratorium.

[5] The parties’ arguments require that we employ our well-established methodology to ascertain the legislature’s intent in enacting former ORS 802.093 (2021). State v. Gaines, 346 Or. 160, 171-72, 206 P.3d 1042 (2009). In doing so, we need not resolve the patent ambiguity in the statute’s text because, even if defendant is correct that former ORS 802.093 (2021) applies to a traffic stop initiated in ...