Defendant was convicted of driving a motor vehicle while his operator's license had been suspended, in violation of ORS 487.560(1).
The Facts of Record
Prior to trial defendant gave the state notice in writing of his intention to rely on the defense of lack of notice of suspension. A jury was waived and the case was tried to the court. In its opening case the state offered the testimony of a police officer who testified that on October 7, 1978, he observed defendant slumped over the steering wheel of a car in a parking lot; that he asked defendant for identification, and that defendant then produced an expired driver's license with an incorrect address.
A tape recording of an exchange between the defendant and the officer was admitted into evidence in the state's case in chief in which the officer asked defendant if he had been receiving his mail; that upon being told "Yeah" the officer asked defendant if he was "aware that (his) license (was) suspended," and that defendant said "No." The defendant told the officer that he had moved from Springfield to Eugene in March or April (1978); that he "just never got around to" having the address changed on his license and that the reason why he had not done so was that he had been working six to seven days a week. It was stipulated that defendant had been driving on a public street.
The state offered in evidence a certified copy of the order of suspension, which was dated August 3, 1978, and stated that defendant's license was "suspended, effective (August 23, 1978) for an indefinite period * * * based upon * * * failure to appear in court," and that "You may request a hearing on this suspension order before a representative of the Motor Vehicles Division." The certificate attached to the copy certified not only that it was a true copy, but that "Our records reveal that this was in full effect on 10-07-78 and was mailed to the official address of record as recorded on the Motor Vehicle Division records." Defendant's address, as stated in the order, was "4980 Main St., Gen. Del., Springfield, Oregon, 97477." Defendant objected to the suspension order on the ground that no evidence had been offered by the state to show that it had been mailed as required by ORS 482.570.
The state also offered in evidence a mailing envelope to show that the suspension order had been mailed to defendant's address as shown on that order. Defendant objected, challenging the correctness of the address. The court then ruled that the exhibit was not relevant until the defendant put on his affirmative defense that he had not received notice of the suspension. The state then withdrew that exhibit.
When the state rested, defendant moved for a judgment of acquittal on the ground that there was no evidence that the suspension order had been mailed to defendant as required by agency rule, statute, and due process and upon the ground that ORS 487.560(2) was unconstitutional. That motion was denied.
Defendant's wife then testified that she and the defendant had never "had an address of 4980 Main Street, Gen. Del., Springfield, Ore.," as shown on the suspension order. She admitted, however, that defendant had lived at 4980 Main Street in Springfield Oregon.
Defendant also offered in evidence a motor vehicle registration in defendant's name showing an address of 4980 Main Street, Springfield, Oregon, 97477 (without the reference to General Delivery). The court sustained an objection by the state on the ground of relevance. Defendant himself did not testify.
Defendant contends that a suspension of a driver's license under ORS 487.560 is not valid until notice has been mailed as required by ORS 482.570. Defendant also contends that proof of suspension is necessary in order for the state to prove its case in chief; that failure of the state to prove the mailing of notice means that it has not proved an element necessary for the crime of "driving while suspended" and that the defendant must therefore be found not guilty.
Defendant urges three separate grounds to support those contentions: (1) The Motor Vehicles Division must comply with its agency rules, which require notice; (2) the Motor Vehicles Division must comply with statutory provisions governing it, which require the mailing of notice of a suspension and failure to do so makes agency action invalid; and(3) due process requires that notice of a suspension be mailed before a suspension is valid.
1. No Agency Rules Require Notice of the Entry of an Order of Suspension Before the Suspension is Valid
Defendant contends that the Motor Vehicles Division regulations require that notice of suspension of a driver's license be provided and that failure to follow those rules makes a suspension invalid. However, the rule cited to us by defendant, OAR 137-03-000, does not require notice of the entry of an order of suspension. That rule provides:
The rule states only that notice of a contested hearing (one in which a right or privilege might be suspended or revoked) be given. In this case the driver's license of this defendant was suspended "for failure to appear" in court. In such a case notice that the driver's license might be suspended for "failure to appear" would be provided by the mailing of a notice pursuant to ORS 484.210, as discussed below.
2. ORS 482.570 and 487.560 Do Not Require that Notice of the Entry of an Order of Suspension for Failure to Appear be Mailed Before a Suspension of a Driver's License is Valid
Defendant also contends that an agency must act in accordance with statutes governing it; that failure to do so makes an agency action invalid, and that the statutory scheme as set out in ORS 487.560 and ORS 482.570 requires that notice of the entry of an order of suspension be mailed to the driver before an order suspending a driver's license can become a valid order. Thus, it is contended that State v. Lawrence, 36 Or.App. 733, 585 P.2d 727 (1978),
The principal case relied upon by defendant in support of this contention is State v. Fogle, 254 Or. 268, 459 P.2d 873 (1969). In that case this court held (at page 275, 459 P.2d 873) that the results of a breath test were inadmissible in a negligent homicide case arising out of an automobile accident because the state had not properly tested the equipment, as required by statute. By the same reasoning, it is contended that unless the Motor Vehicles Division proves compliance with ORS 482.570 the suspension of a driver's license should also be held invalid.
Fogle, however, is clearly distinguishable. The statute construed in that case, ORS 483.644(1), (2)(c), provided specifically that in order for the chemical analysis of a person's breath "to be valid" the equipment must be approved by the State Board of Health and that the Board shall make tests of the equipment every 60 days. There is no such language in ORS 487.560 stating that for an order suspending a driver's license "to be valid," notice of the suspension must be subsequently mailed pursuant to ORS 482.570.
Defendant also relies on State v. Leathers, 271 Or. 236, 531 P.2d 901 (1975), in which this court held (at page 240, 531 P.2d 901) that a sentence not "in conformity with its governing statute" is "without legal effect." Defendant contends, by analogy, that failure of the Motor Vehicles Division to comply with the mailing provisions of ORS 482.570 makes an order of suspension ineffective. Analysis of Leathers makes it clear, however, that it was the imposition of a sentence different from that allowed by statute that made the sentences invalid in that case, not failure to comply with notice requirements.
The more proper approach to the question of whether an order suspending a driver's license is invalid under ORS 487.560 unless the Motor Vehicles Division has complied with the mailing requirements of ORS 482.570, is to inquire whether the legislature intended that an order suspending a driver's license, if otherwise a valid order, must then be mailed to the driver before there can be a valid suspension of his license and that in a prosecution for driving with a suspended license the state must prove the mailing of the order of suspension as a part of its case in chief. Cf. Anaconda Company v. Dept. of Rev., 278 Or. 723, 727, 565 P.2d 1084 (1977).
Defendant's strongest contention on this question is that the affirmative defense provided for by ORS 487.560(2)(b) concerns the defendant's failure to receive actual notice, while ORS 482.570 concerns the mailing of notice. Thus, defendant contends that the legislature must have intended that in order for there to be a valid suspension the state must prove mailing of notice, but that the defendant can still raise as an affirmative defense that he did not receive the notice and thus had no actual notice.
Although the statutes make such a distinction, we do not believe that it necessarily follows that the legislature intended that after the Motor Vehicles Division had entered an otherwise valid order suspending a driver's license, it must then mail a copy of that order to the driver before the order is a valid order and that the state must prove this as a part of its case in chief.
In State v. Lawrence, supra, it was held by the Court of Appeals that:
Although that decision is not controlling on this court, we believe it to be of some significance in support of that analysis that the only mention of notice in ORS 487.560 is in subsection (2)(b), which provides that the defendant may raise as an affirmative defense the fact that he has not received notice as required by ORS 482.570. Although perhaps not controlling, the fact that notice is not in any way mentioned in ORS 487.560 except as an affirmative defense is some indication that the legislature did not intend to require the state to prove the mailing of notice as a part of its case in chief in order to make a prima facie case to prove the offense of "driving while suspended."
We also find it significant that by making the failure to receive notice an affirmative defense, the legislature has by ORS 487.560(2)(b) provided defendants with a remedy when the state fails to comply with ORS 482.570. Had not such a defense been provided, it could be argued more effectively by the defendant that the mailing of notice was necessary for a valid suspension because otherwise the state could arbitrarily follow or ignore that section's notice requirements.
Furthermore, ORS 482.570, the notice statute so heavily relied upon by defendant, appears to make the subsequent giving of notice an act or "action" separate from that of the suspension of a driver's license. It provides:
The reference to "such action" is at least some further indication that the legislature considered the suspension of a driver's license to be an "action" complete in itself apart from the giving of "notice of such action."
A final indication of legislative intent that the subsequent mailing of notice pursuant to ORS 482.570 is not required for a valid order of suspension is that in cases such as this, involving persons whose licenses have been suspended for "failure to appear," the legislature had already provided
We believe it reasonable to assume that in view of these efforts by the legislature to provide a statutory scheme consistent with the due process requirements of notice and hearing prior to a license being suspended, the legislature did not also intend that the validity of an order suspending a driver's license be dependent also upon notice to the driver after his license has been suspended. Such an additional requirement would appear to be both constitutionally unnecessary and also an unnecessary duplication of effort.
In our opinion, it is more reasonable to conclude that the notice and hearing provided by ORS 484.210 is a provision intended by the legislature to satisfy constitutional requirements of due process before such a driver's license is suspended, at least in cases involving persons suspended for "failure to appear," as in this case, and that the subsequent mailing of a copy of such an order of suspension was not intended by the legislature to be required for the order of suspension to be valid. For these reasons, we do not interpret these statutes, including ORS 487.560(1), to require the state to prove the mailing of notice under ORS 482.570 as a part of its case in chief, at least in cases involving orders of suspension for "failure to appear," as in this case.
3. Due Process Does Not Require that Notice of the Entry of an Order of Suspension for Failure to Appear be Mailed Before Suspension of a Driver's License is Valid.
Defendant contends that in a prosecution for driving while suspended under ORS 487.560 due process requires that the state must prove compliance with the mailing requirements of ORS 482.570 in order to prove a valid suspension. Defendant supports this contention by citing Bell v. Burson, 402 U.S. 535, 540, 91 S.Ct. 1586, 1589, 29 L.Ed.2d 90 (1971), and decisions by the Oregon Court of Appeals.
Bell v. Burson, supra, does not hold that unless a copy of an order suspending a driver's license is then mailed to the driver the order of suspension is invalid. Instead, the court in that case addressed the issue of the right to notice and hearing prior to a determination that the license should be suspended. The court stated that due process
The notice required by Bell is therefore notice of a hearing at which it will be decided whether the license should be suspended. At least for drivers whose licenses are suspended for "failure to appear," as in this case, Oregon's statutory scheme provides for notice and hearing prior to suspension. As previously noted, ORS 484.210, the statute providing for the suspension of a driver's license for "failure to appear" at a hearing on a traffic offense, provides that the court "shall at least five days in advance of the hearing mail notice of the date and time so fixed," and that "[t]he notice
Most of the decisions by the Oregon Court of Appeals cited by petitioner, although not binding on this court, also have held that notice and hearing must be given prior to suspension, but did not hold that due process requires that notice be given of the suspension itself. In State v. Figueroa, 30 Or.App. 803, 586 P.2d 691 (1977), the Court of Appeals summarized its earlier holdings on the issue by stating:
See also Floyd v. Motor Vehicles Div., 27 Or.App. 41, 554 P.2d 1024 (1976); Boykin v. Ott, 10 Or.App. 210, 498 P.2d 815 (1972). But see State v. Buen, 13 Or.App. 426, 509 P.2d 865 (1973), and State v. Gartzke, 35 Or.App. 151, 580 P.2d 1062 (1978).
Defendant further contends that "where constructive notice is required as a matter of due process, shifting the burden of proof on that issue to the defendant is unconstitutional," citing this court's decisions in State v. Stockett, 278 Or. 637, 565 P.2d 739 (1977), and State v. Stilling, 285 Or. 293, 590 P.2d 1223 (1979).
In Stockett, this court held that under the rule as stated in Mullaney v. Wilbur, 421 U.S. 684, 95 S.Ct. 1881, 44 L.Ed.2d 508 (1975), an Oregon statute which placed upon a defendant the burden of proving partial responsibility or diminished intent was unconstitutional in that it attempted to shift the burden of proof regarding the defendant's mens rea to the defendant. This court reasoned that in a specific intent crime the existence of the required mental state was an "essential element" of the crime and the burden of proof of that element could not be shifted to the defendant. 278 Or. at 642-43, 565 P.2d 739. In State v. Stilling, supra, this court quoted Stockett with approval for its statement of that rule.
In this case, defendant's due process argument under this court's decision in Stockett is dependent upon a determination that "constructive notice" of the order suspending defendant's driver's license was an "essential element" of the offense of driving while suspended. If it was such an "essential element," then shifting the burden of proof on that issue to defendant by requiring him to disprove "notice" would be unconstitutional under our analysis in Stockett.
Subsequent to its decision in Mullaney, and also subsequent to the decision by this court in Stockett, the United States Supreme Court decided Patterson v. New York, 432 U.S. 197, 97 S.Ct. 2319, 53 L.Ed.2d 281 (1977), in which it greatly narrowed the
In Patterson the Supreme Court recognized initially that:
The Supreme Court also made it clear in Patterson that just because a statute provides that proof of a certain fact constitutes an affirmative defense, it does not follow that those facts are an element of the crime with the burden of proof upon the state. The Court stated:
See also 432 U.S. at 214, n. 15, 97 S.Ct. at 2329, n. 15.
The Supreme Court then noted that in Mullaney it had held that the state may not shift the burden of proof of an element of a crime to the defendant. The Court in Patterson, however, narrowly defined what constitutes an "element" of the crime for purposes of due process, as "a fact which the State deems so important that it must be either proved or presumed." 432 U.S. at 215, 97 S.Ct. at 2329. The Court then went on to state that under the facts of Mullaney such a shifting of an element existed because under the Maine statutes "malice aforethought" was "mentioned in the statutory definition of the crime" so as to be an "element of the crime," and yet that element of malice was "presumed and could only be rebutted by the defendant by proving by a preponderance of the evidence that he acted with heat of passion upon sudden provocation." 432 U.S. at 215-16, 97 S.Ct. at 2329-30.
In this case the fact of "notice" does not appear in the definition of the offense of "driving while suspended," which is defined by ORS 487.560(1) simply as the act of driving a motor vehicle during a period when the driver's license has been suspended. Also, although the fact of mailing notice of an order of suspension is required by ORS 482.570, it is specifically provided by ORS 487.560(2) that the fact that the driver did not receive notice is an affirmative defense.
As previously noted, we do not believe that it was the intent of the legislature in writing ORS 487.560 and 482.570 to require that notice of the order of suspension be mailed for that order to be valid. It follows, in our opinion, that proof of the mailing of a copy of the order of suspension, as provided by ORS 482.570, was not intended by the legislature to be an "essential element" of the offense of driving while suspended, in violation of ORS 487.560(1). It also follows, in our opinion, that proof of such notice was not required by due process either under the rule of Stockett or under the rule of Patterson.
4. Defendant's Other Contentions
Defendant assigned as error the rejection by the trial court of defendant's offer in evidence of a motor vehicle registration showing an address somewhat different from that listed on the suspension order. Defendant contends that the motor vehicle registration was the last official address of the defendant that the Motor Vehicle Division had, with the result that the Motor Vehicle Division's mailing of the order of suspension to a different address did not properly comply with ORS 482.570, which requires that notice be mailed "to the person's address as shown by division records."
The trial court's reason for sustaining the state's objection to admitting the vehicle registration was that it was irrelevant because only the address on the defendant's driver's license is relevant proof under ORS 482.570. Defendant contends that because due process requires that notice be reasonably calculated to reach the person intended, all possible records must be considered that would provide the greatest possibility of reaching the defendant, and that such a record in this case was the motor vehicle registration, citing People v. Yount, 174 Colo. 462, 484 P.2d 1203 (1971), for the proposition that the order must be mailed to the last address found anywhere in the Motor Vehicle Division's records.
The trial court held that the vehicle registration was irrelevant and that only the address on the defendant's driver's license is relevant proof under ORS 482.570. Assuming that the correctness of the address to which the notice was sent had any relevance to the issues of this case, we believe that this ruling by the trial court was correct for two reasons.
First, ORS Chapter 482 (which includes the statutory provision now in dispute, ORS 482.570) contains only provisions concerning operators' and chauffeurs' licenses; provisions concerning vehicle registration are found in an entirely separate chapter, ORS Chapter 481. It is reasonable to assume that by the term "division records" in ORS 482.570, the legislature meant those records relating to the subject matter of the statutory chapter within which ORS 482.570 is found, which would be driver's license records and not vehicle registration records.
Second, ORS 482.290(3) requires that persons holding driver's licenses must notify the division of any change of residence from that noted on their license as issued by the Motor Vehicles Division. This requirement indicates an intent that driver's license records be kept current and that they be a current and reliable source of information. It would be unreasonable to require the Motor Vehicles Division to search out other records immaterial to a driver's license suspension when the legislature has set out a scheme to make driver's license records themselves current and reliable. This is particularly true in light of the fact that the Motor Vehicles Division's driver's license records will be current and reliable unless a driver fails to comply with ORS 482.290(3), which requires drivers to notify the Motor Vehicles Division of a
For these same reasons, we reject the reasoning of the Colorado Court in Yount, supra, upon which defendant relies in support of his contention that the Motor Vehicles Division must search all records, including vehicle registration records, to comply with ORS 482.570.
Defendant also contends that the evidence was insufficient to support a verdict of guilty because: (1) the state failed to prove the mailing of notice as required by ORS 482.570; (2) the state failed to prove that the suspension order was in effect at the time of defendant's arrest for driving while suspended; and (3) even if the state is not required to prove mailing of notice in its case in chief, but the defendant can assert lack of receipt of notice as an affirmative defense, the evidence at trial was sufficient to prove that the defendant had carried the burden of proof to establish that defense.
Defendant's contention that the state failed to prove the mailing of notice has already been disposed of by our holding that in this case the state was not required to prove mailing of notice in its case in chief.
We do not consider defendant's second contention that there is insufficient evidence to prove that the suspension order was still in effect at the time of defendant's arrest because it does not appear that such a contention was made either at the time of trial or on appeal to the Court of Appeals. But see State v. Harris, 288 Or. 703, 609 P.2d 798 (1980), decided after the trial of this case.
For similar reasons, we must reject defendant's final contention that the evidence was insufficient to support a verdict of guilty because the evidence at trial was sufficient to prove that defendant had carried the burden of proof of the affirmative defense that he had not received notice of the suspension of his driver's license. Defendant has not shown either by his petition for review or by proper assignment of error in his brief to the Court of Appeals that any such contention was made in the trial court. Both his motion for acquittal and his motion for arrest of judgment were based upon other grounds.
In State v. Long, 246 Or. 394, 425 P.2d 528 (1967), the defendant contended on appeal, as in this case, that the evidence was insufficient to support a finding of guilt. In rejecting that contention this court said (at 396-97, 425 P.2d 528):
There may be some exceptions to this rule, but not in this case.
For all of these reasons, we hold that the Court of Appeals properly affirmed defendant's conviction.
LINDE, Justice, concurring.
In order not to misconstrue the import of the holding on this record for other cases, something more needs to be said about the elements of the crime of driving a motor vehicle when one's driver's license has been suspended and the significance of the "affirmative defense" that one has not received the statutory notice of the suspension.
The legislature's answer is found in the following statutes. ORS 161.095(2), as part of the 1971 revision of Oregon's criminal law, enacted the principle that criminal guilt requires a culpable mental state except as stated in the next section.
That exception, ORS 161.105, is stated as follows:
We recently discussed these sections in State v. Wolfe, 288 Or. 521, 605 P.2d 1185 (1980). In short, they provide that a culpable mental state is required for all offenses except those that are punishable only as violations.
How does "driving while suspended" fit into this framework? First, it is an offense "defined by a statute outside the Oregon Criminal Code." ORS 487.560. The second question under ORS 161.105(1)(b), above, is whether the statute clearly dispenses with any culpable mental state requirement. ORS 487.560 does not clearly specify or clearly dispense with such a requirement. It is silent on the point. However, the context indicates that a culpable mental state is an element of driving while suspended.
ORS 487.560(1) provides:
It defines the offense as a "crime." By subsections (5) and (6), the crime is either a Class A misdemeanor or a Class C felony. The legislative assembly in ORS 161.025, supra, has said, and we ordinarily assume, that it does not intend to make a criminal of one who has no reason to know the facts that make his conduct unlawful. Cf. State v. Wolfe, supra. That applies to one who drives in good faith on a license issued by the state without reason to suspect that the license has been suspended or otherwise terminated. It is borne out by the various provisions for notice discussed by the Court.
Moreover, if ORS 487.560 were read to dispense with a culpable mental element, then ORS 161.105(2), quoted above, would reduce the offense of driving while suspended from the crime which it purports to define to a violation.
Nevertheless, even though the statute does not dispense with a culpable mental state as an affirmative element of the crime, and as a practical matter the prosecution may prove the sending of notice as the most likely evidence to show that element, it does not follow that sending notice of the suspension itself is such an affirmative element. Thus the question what degree of knowledge or careless failure to inquire into the status of one's license constitutes the required element of culpability is properly left to an occasion when it is briefed and argued.
More importantly, legislative history subsequent to the preparation of the Commentary shows a contrary legislative intent than that contended by defendant. Mr. Donald Paillette, Project Director of the Proposed Oregon Vehicle Code, explained the provisions of the proposed code to the Judiciary Committee. On January 23, 1975, testifying before the Senate Judiciary Committee and explaining § 92, Mr. Paillette stated:
This supports the conclusion that the legislature intended that the state need only prove suspension and driving while suspended, rather than an intent that proof of mailing must also be shown by the state in its case in chief.