State v. Ramirez

117

Submitted September 19, 2019; resubmitted en banc September 21, 2020;

remanded for resentencing, otherwise affirmed June 3, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

RICARDO SANTOS RAMIREZ,

aka Sergio Martinez Gonzales,

aka Ricardo Santo Ramirez,

Defendant-Appellant.

Umatilla County Circuit Court

17CR39991; A167114

493 P3d 522

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). Specifically, he

contends that the trial court erred in concluding that his Washington convic-

tion for first-degree negligent driving qualified as a predicate offense under ORS

809.235(1)(b)(B). Held: The trial court erred. Under ORS 809.235(1)(b)(B), an out-

of-state conviction cannot serve as a predicate offense unless the offense requires

proof that the person’s impaired driving was causally related to the person’s use

of an intoxicant. The Washington offense that the trial court relied on in perma-

nently revoking defendant’s driving privileges does not have that requirement.

Remanded for resentencing; otherwise affirmed.

En Banc

Eva J. Temple, Judge.

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.

118 State v. Ramirez

DeHOOG, J.

Remanded for resentencing; otherwise affirmed.

DeHoog, J., filed the opinion of the court in which

Armstrong, Ortega, Lagesen, Shorr, James, Aoyagi, Powers,

and Kamins, JJ., joined.

Mooney, J., dissented and filed an opinion in which Egan,

C. J., and DeVore and Tookey, JJ., joined.

Cite as 312 Or App 117 (2021) 119

DeHOOG, J.

Defendant appeals a judgment of conviction for driv-

ing 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 perma-

nently 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 insuf-

ficient 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 conces-

sions 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

1

Under Oregon’s motor vehicle laws, a person’s driving privileges must be

revoked upon a third or subsequent conviction for one of various driving offenses,

including:

“A driving under the influence of intoxicants offense in another jurisdiction

that involved the impaired driving of a vehicle due to the use of intoxicat-

ing liquor, cannabis, a controlled substance, an inhalant or any combination

thereof.”

ORS 809.235(1)(b)(B). The text of ORS 809.235(1)(b) is set out more fully below. 312

Or App at 122-23. Although the statute refers to revoking licenses “permanently,”

a driver may petition the court for reinstatement after 10 years. ORS 809.235(2).

2

In light of our conclusion that the trial court erred in relying on defendant’s

Washington conviction as a basis for revoking his driving privileges, we need not

further consider his first assignment of error, as it is undisputed that the manda-

tory revocation provision of ORS 809.235(1)(b) would not be triggered unless both

the Washington and California convictions qualified as prior convictions under

the statute. Furthermore, we need not address defendant’s related but undevel-

oped argument that the trial court erred in imposing a fine, although we note

that the court indicated that it was exercising its discretion in determining the

amount of the fine and not strictly relying on the provisions of ORS 809.235 in

doing so.

120 State v. Ramirez

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 man-

ner 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 consum-

ing alcohol.” The state further explained that, as a result of

that conviction, defendant had been ordered to undergo alco-

hol 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 defini-

tions for “negligent” and “exhibits the effects of having con-

sumed 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 intox-

icants, 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

Cite as 312 Or App 117 (2021) 121

is * * * I would say more similar to driving under the influ-

ence 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 P3d 292 (2008), and State v.

Mersman, 216 Or App 194, 172 P3d 654 (2007), rev den, 344

Or 390 (2008), abrogated by State v. Guzman, 366 Or 18, 46,

455 P3d 485 (2019), he recognizes that a “statutory counter-

part” 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 qual-

ify as a statutory counterpart to Oregon’s DUII statute. See

ORS 809.235(1)(b)(A)(ii) (providing that a “statutory coun-

terpart to ORS 813.010 in another jurisdiction” is a predi-

cate 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.

The state, in turn, argues that defendant’s “stat-

utory 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

122 State v. Ramirez

or a “statutory counterpart”). Here, the state argues, the

trial court properly treated defendant’s Washington con-

viction as a predicate offense under ORS 809.235(1)(b)(B).

Citing Dyrdahl v. DMV, 204 Or App 509, 131 P3d 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 crim-

inalizes 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 P3d 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 perma-

nently revoking defendant’s driving privileges.

Before addressing that issue, we set out more com-

pletely 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 priv-

ileges 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:

3

The relevant text of RCW 46.61.5249 is set out below. 312 Or App at 128.

Cite as 312 Or App 117 (2021) 123

“(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 com-

bination 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 con-

trolled 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, 358 Or 383, 391, 365 P3d 99 (2015)

(reviewing for legal error trial court actions that turned on

proper interpretation of a statute). In performing that task,

we rely, in part, on the interpretive framework set out by

the Supreme Court in State v. Gaines, 346 Or 160, 171-72

206 P3d 1042 (2009) (evaluating statutory text in context,

considering any helpful legislative history, and turning to

canons of construction when necessary), and, to the degree

4

Oregon’s DUII statute, ORS 813.010, provides, in relevant part:

“(1) A person commits the offense of driving while under the influence of

intoxicants if the person drives a vehicle while the person:

“(a) Has 0.08 percent or more by weight of alcohol in the blood of the per-

son as shown by chemical analysis of the breath or blood of the person * * *;

“(b) Is under the influence of intoxicating liquor, cannabis, a controlled

substance or an inhalant; or

“(c) Is under the influence of any combination of intoxicating liquor, can-

nabis, a controlled substance and an inhalant.”

124 State v. Ramirez

it is appropriate, on Washington decisional law regarding

the interpretation and meaning of that state’s laws.

In arguing that defendant’s negligent-driving con-

viction falls under ORS 809.235(1)(b)(B), the state, citing

the Washington Court of Appeals’ decision in Mullen,

focuses on the first part of that provision and contends that

the Washington conviction was for a “driving under the

influence of intoxicants offense.” Although the state quotes

ORS 809.235(1)(b)(B) more completely in other parts of its

brief, in our view, the state pays inadequate attention to the

statutory language that closely follows the state’s empha-

sized language of “driving under the influence of intoxi-

cants offense,” namely, the requirement that the offense

be one “that involved the impaired driving of a vehicle due

to the use of intoxi[cants].” ORS 809.235(1)(b)(B) (emphasis

added). And, because defendant’s Washington conviction

cannot serve as a predicate offense unless it satisfies ORS

809.235(1)(b)(B) in full, we will focus our assessment of that

provision on the latter language, without deciding whether

the Washington statute might otherwise be deemed to

define a “driving under the influence of intoxicants offense.”5

We first consider the specific text of the statute. See

Gaines, 346 Or at 171 (“[T]here is no more persuasive evi-

dence of the intent of the legislature than the words by which

the legislature undertook to give expression to its wishes.”

(Internal quotation marks omitted.)). Here, the only terms

in the latter part of ORS 809.235(1)(b)(B) that appear at all

susceptible to dispute are the phrases “impaired driving”

and “due to the use.” And, because it is ultimately disposi-

tive, we focus our attention on the latter phrase, “due to the

use,” both in isolation and in the context in which it appears.

The phrase “due to the use” consists of words of com-

mon usage; thus, following our typical practice, we may con-

sider a standard dictionary to determine how those words

are ordinarily understood. E.g., State v. Baker-Krofft, 348

5

Similarly, because the state effectively concedes that the Washington stat-

ute is not a statutory counterpart to ORS 813.010 and advances no argument that

it satisfies any part of ORS 809.235(1)(b) other than ORS 809.235(1)(b)(B), we do

not decide whether any other provision might have allowed the trial court to rely

on the conviction as it did.

Cite as 312 Or App 117 (2021) 125

Or 655, 661, 239 P3d 226 (2010) (explaining that, when the

legislature has not defined statutory terms, “we look to the

dictionary to determine their ordinary meaning”). And, as

it appears here, the prepositional phrase “due to” most likely

means “because of.” See Webster’s Third New Int’l Dictionary

699 (unabridged ed 2002). Although the phrase “because of”

also appears in the dictionary, its principle definition does

not provide much, if any, clarity. See Webster’s at 194 (defin-

ing “because of” as meaning “by reason of” or “on account

of”). However, the ordinary meaning of “because” supports

a preliminary understanding that the expression “due to

the use” in ORS 809.235(1)(b)(B) is intended to convey an

element of causation, that is, a requirement that, to fall

within that provision, an offense must involve impairment

(of either driving or a driver) that is causally related to the

person’s use of intoxicants. See Webster’s at 194 (also defin-

ing “because” as “since : for the reason that : on account of

the cause that” and noting that the word is derived from “by

+ cause” (emphasis in original)).

Moreover, even at that first-level examination of the

plain text and context of “due to the use,” we are not limited

to dictionary definitions for guidance as to its meaning; prior

interpretations of the same or related text also inform our

understanding of how the legislature likely intended those

words to be understood here. See, e.g., Keller v. Armstrong

World Industries, Inc., 342 Or 23, 35, 147 P3d 1154 (2006)

(previous judicial interpretations of related statutes pro-

vide “relevant context” when construing a statute); State v.

Bryan, 221 Or App 455, 459, 190 P3d 470 (2008), rev den, 347

Or 290 (2009) (previous constructions of a statute are rele-

vant at the first stage of statutory construction). Although

neither we nor the Supreme Court have construed ORS

809.235(1)(b)(B), we have case law construing comparable

language in the closely related context of ORS 813.010.6 We

turn to those decisions.

6

In considering whether the provisions of ORS 809.235(1)(b) encompassed

convictions under the predecessor to ORS 813.010, the Supreme Court has, in

passing, distinguished between ORS 809.235(1)(b)(A) and subparagraphs (B)

and (C), observing that the latter described qualifying offenses that “might not

be criminal in Oregon.” State v. Kellar, 349 Or 626, 633, 247 P3d 1232 (2011).

However, the meaning of ORS 809.235(1)(b)(B) was not at issue or further dis-

cussed in Kellar. Thus, while it is true that the 2007 amendments would likely

126 State v. Ramirez

In Oregon, the offense of DUII, ORS 813.010, can

be proved in either of two ways. One, the state can establish

that a driver’s blood-alcohol content (BAC) was equal to or

greater than a statutory limit at the time of driving—the so

called “DUII per se” cases. See ORS 813.010(1)(a) (prohibit-

ing driving a vehicle when the driver has a BAC of .08 per-

cent or more); State v. Hedgpeth, 365 Or 724, 727, 452 P3d

948 (2019) (describing prosecutions under ORS 813.010(1)(a)

as “the per se method of proving DUII”). Two, the state can

establish, under ORS 813.010(1)(b) or (c), that the driver was,

at the time of driving, “under the influence” of one or more

intoxicants. It is the case law construing the latter, non-

DUII per se method of prosecution that informs our under-

standing of “due to the use of” intoxicants as it appears in

ORS 809.235(1)(b)(B).

Both we and the Supreme Court have developed a

long-standing and substantial body of DUII case law that

has always required, in non-DUII per se cases, proof of both

impairment and a causal relationship between a person’s

use of intoxicants and that impairment. See, e.g., State v.

Eumana-Moranchel, 352 Or 1, 7-8, 277 P3d 549 (2012) (to be

“under the influence” of an intoxicant within the meaning of

ORS 813.010(1)(b), a person must be shown to be “adversely

affected by intoxicants to a perceptible degree” (emphasis

added)); State v. Stroup, 147 Or App 118, 124, 935 P2d 438

(1997) (noting, in determining that officer lacked probable

cause to arrest defendant for DUII, that nothing in record

“suggest[ed] a correlation between defendant’s” circum-

stances “and a mental or physical impairment because of

the consumption of alcoholic beverages” (emphases added));

see also State v. Sinkey, 303 Or App 673, 678, 465 P3d 284

(2020) (“To constitute probable cause [to support a DUII

arrest], there must be information from which a law enforce-

ment officer could conclude that it is more likely than not

that defendant drove while he was physically or mentally

impaired.”); State v. Snyder, 288 Or App 58, 62, 405 P3d 175

(2017), rev den, 362 Or 508 (2018) (a person who is shown to

encompass such things as a conviction on a DUII per se theory in a state that had

a .05 percent statutory BAC limit—that is, conduct that would not, as such, “be

criminal in Oregon”—Kellar does not aid our inquiry as to whether a statute such

as RCW 46.61.5249 fits within the newer provisions.

Cite as 312 Or App 117 (2021) 127

have driven after consuming alcohol but who is not shown

to be adversely affected by that alcohol or to have a BAC of

at least 0.08 percent “has not committed a crime”). And, as

the Supreme Court observed in State v. Guzman, 366 Or 18,

46, 455 P3d 485 (2019), “[t]he perceptible degree standard

has been part of our law for close to a century.” (Internal

quotation marks omitted.)

To be sure, the cases cited above all relate to ORS

813.010, and not ORS 809.235(1), the Oregon statute at issue

here. Nonetheless, those cases and others like them support

our preliminary understanding that, in referring, in ORS

809.235(1)(b)(B), to a driving under the influence offense

involving impaired driving “due to the use of” intoxicants,

the legislature was contemplating out-of-state offenses that,

like DUII in Oregon, involved proof of both impairment

and a correlation between a driver’s use of intoxicants and

that impairment. See Guzman, 366 Or at 31 (recognizing,

as contextual support for a particular reading of a statute,

Court of Appeals decisions construing same or similar lan-

guage); cf. id. at 34 (applying “the canon of consistent usage,”

which is “the principle that, in the absence of evidence to

the contrary, we ordinarily assume that the legislature uses

terms in related statutes consistently”). And, although the

statutory phrases “impaired driving” and “due to the use

of [intoxicants]” are not themselves phrases that appear in

other statutes, it stands to reason that their placement in a

DUII-related statute reflects the legislature’s awareness of

our case law repeatedly discussing those essential aspects

of a DUII prosecution.7

In light of the foregoing, we understand ORS

809.235(1)(b)(B) to encompass out-of-state offenses only to

the degree that those offenses require proof that a person

or the person’s driving was impaired by the person’s use

of intoxicants.8 We turn then, to whether the Washington

7

Except as reflected in the above decisional law, we are aware of no legisla-

tive history that might inform our understanding of ORS 809.235(1)(b)(B).

8

Because we ultimately conclude that the Washington offense at issue in

this case did not satisfy the “due to” component of ORS 809.235(1)(b)(B), we need

not separately determine whether what must be “impaired” due to the person’s

use of intoxicants is the driver, the driving, or both.

128 State v. Ramirez

offense of first-degree negligent driving, RCW 46.61.5249,

satisfies that requirement.

As with our examination of ORS 809.235, we begin

by considering the text of RCW 46.61.5249, which provides,

in relevant part:

“(1)(a) A person is guilty of negligent driving in the

first degree if he or she operates a motor vehicle in a man-

ner 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 * * *.

“* * * * *

“(2) For the purposes of this section:

“(a) ‘Negligent’ means the failure to exercise ordi-

nary care, and is the doing of some act that a reasonably

careful person would not do under the same or similar

circumstances or the failure to do something that a rea-

sonably careful person would do under the same or similar

circumstances.

“(b) ‘Exhibiting the effects of having consumed liquor,

marijuana, or any drug’ means that a person has the odor of

liquor, marijuana, or any drug on his or her breath, or that

by speech, manner, appearance, behavior, lack of coordi-

nation, or otherwise exhibits that he or she has consumed

liquor, marijuana, or any drug, and either:

“(i) Is in possession of or in close proximity to a con-

tainer that has or recently had liquor, marijuana, or any

drug in it; or

“(ii) Is shown by other evidence to have recently con-

sumed liquor, marijuana, or any drug.”

RCW 46.61.5249 (emphases added).

On its face, it is difficult to see how, if at all,

Washington’s negligent-driving offense requires proof of a

causal relationship between a person’s use of an intoxicant

and the impairment of the person or the person’s driving.9

9

Like Oregon, Washington follows an established methodology when con-

struing statutes. See State v. Dennis, 191 Wash 2d 169, 172-73, 421 P3d 944 (2018).

In Washington, as in Oregon, the words of a statute are paramount and taken at

face value. Id. at 172. Thus, when “interpret[ing] a criminal statute,” Washington

courts “give it a literal and strict interpretation.” Id. (internal quotation marks

Cite as 312 Or App 117 (2021) 129

While it may well be true that, in most instances, the pros-

ecution of a person charged with first-degree negligent driv-

ing will include evidence that the person or the person’s driv-

ing was impaired by (or “due to”) intoxicants, nothing in the

statute defining that offense appears to require that show-

ing. Indeed, RCW 46.61.5249 does not, on its face, appear to

require actual impairment of any sort, much less impair-

ment “due to the use of” intoxicants, as ORS 809.235(1)(b)(B)

explicitly contemplates. (Emphasis added.)

As the emphasized language of RCW 46.61.5249

suggests, a person may be convicted of first-degree negli-

gent driving under that statute based merely upon a show-

ing of ordinary negligence if, in conjunction with that show-

ing, the person also has an “odor of liquor * * * on his or her

breath” and is near (“in possession of or in close proximity”)

to “a container that has or recently had liquor, marijuana, or

any drug in it.” RCW 46.61.5249(2)(b) (defining “ ‘Exhibiting

the effects of having consumed liquor * * *’ ”). Stated differ-

ently, although the Washington statute recognizes, as evi-

dence of “the effects of having consumed liquor,” arguable

manifestations of impairment, such as any telltale aspects

of a person’s “speech, manner, appearance, behavior, lack

of coordination,” etc., id., it does not require any evidence of

impairment, because impairment is not an element of that

offense.

Under the plain language of RCW 46.61.5249, any

number of scenarios might satisfy the elements of first-

degree negligent driving, even where the charged incident

does not involve impairment due to the use of intoxicants,

as we have determined ORS 809.235(1)(b)(B) requires.10

Consider, for example, a person who, as part of a religious

omitted); id. at 172-73 (“We derive the legislative intent of a statute solely from

the plain language” of the text in its statutory context.). Unlike Oregon courts,

Washington courts may not consider legislative history unless the statutory text

is ambiguous. Id.; see Gaines, 346 Or at 172-73 (in light of 2001 amendments to

ORS 174.020, Oregon courts may consider legislative history for what it may be

worth even in absence of ambiguity).

10

We note that, under analogous circumstances, the Supreme Court has

similarly considered hypothetical scenarios in determining whether the defen-

dant’s convictions under a California statute were for offenses “comparable” to a

qualifying Oregon offense for purposes of the sentence enhancement provisions

of ORS 137.719(3)(b)(B). See State v. Carlton, 361 Or 29, 35, 388 P3d 1093 (2017).

130 State v. Ramirez

observance, takes a sip of sacramental wine, then drives

home with her husband’s medical prescription on the car

seat next to her. Or the designated driver who drinks only

nonalcoholic beer on a night out with friends but picks up

a six-pack on the way home. Or a conscientious wine-lover

who tastes but never drinks the wine at tastings, but always

buys a bottle before leaving. Or even a liquor-store patron

who takes half a sip from a sample of local whiskey, then

leaves the store with a bottle of Jack Daniels. Assume then,

that as each of those people drives home, he or she suffers a

momentary lapse of attention, resulting in a fender-bender

at a red light or some other such minor accident.

Under each scenario, even though alcohol impair-

ment played no role in the incident—because very little or

no alcohol had been consumed, much less enough to cause

perceptible impairment or trigger even the strictest stat-

utory limit—there seems to be little doubt that the driver

could be prosecuted for first-degree negligent driving under

RCW 46.61.5249. That is, the person would have (1) “oper-

at[ed] a motor vehicle in a manner that is * * * negligent”

(momentarily failing to watch); (2) “endanger[ed another]

person or property” (the other vehicle and its occupants);

and (3) “exhibit[ed] the effects of having consumed liquor” by

(a) having “the odor” of the sipped, tasted, or alcohol-free

beverages “on his or her breath,” RCW 46.61.5249(2)(b), and

(b) being “in possession of or in close proximity to a con-

tainer that has or recently had liquor, marijuana, or any

drug in it,” RCW 46.61.5249(2)(b)(i), namely, the bottles of

beer, wine, or whiskey that each had purchased or, in the

case of the first person, the prescription drugs belonging

to her husband. Thus, under the plain language of the

Washington statute, it is apparent that a person can be con-

victed of first-degree negligent driving without engaging

in any conduct that, as least under the plain text of RCW

46.61.5249, can be viewed as “impaired driving of a vehi-

cle due to the use of intoxi[cants].” See ORS 809.235(1)(b)(B)

(applying only to such convictions). The dissent views our

reliance on hypotheticals as an attempt “to illustrate why a

conviction for first-degree negligent driving in Washington

does not involve impairment due to intoxicants.” 312 Or App

at 138 (Mooney, J., dissenting) (emphasis added). But that is

Cite as 312 Or App 117 (2021) 131

not our point. As we acknowledge above, most convictions for

that offense probably do “involve” impairment due to intoxi-

cants. The point we seek to illustrate, however, is that there

is a considerable difference between an offense that often

involves impairment and one for which proof of impairment

is required, i.e., an offense that necessarily involves impair-

ment. As the foregoing discussion concludes, only the latter

type of offense is one that satisfies ORS 809.235(1)(b)(B).

Resisting the conclusion that first-degree negli-

gent driving is not such an offense, the state relies on the

Washington Court of Appeals’ decision in Mullen to support

its argument that, notwithstanding the plain language of

RCW 46.61.5249, a conviction under that statute qualifies

as a predicate offense under ORS 809.235(1)(b)(B). For two

reasons, we find that reliance misplaced. Ultimately, we

conclude that, even assuming that we ordinarily would defer

to the construction of an out-of-state statute by the other

state’s appellate courts to determine whether the statute fit

within ORS 809.235(1)(b)(B),11 Washington’s decisional law

is not helpful in that regard; that is, because that case law

simply adheres to the plain language of RCW 46.61.5249,

which, as we have just concluded, lacks any apparent causal

element, it does not illuminate whether such an element is

nonetheless required.

First, although the court in Mullen observes in pass-

ing that the offense of first-degree negligent driving requires

the state to prove that a driver drove “under the influence

of alcohol or drugs,” 186 Wash App at 334, the meaning of

RCW 46.61.5249 was not at issue in that case. Rather, the

11

The Supreme Court has taken somewhat of a hybrid approach. In Carlton,

for example, the court considered whether the defendant’s convictions under a

California statute were for offenses “comparable” to a qualifying Oregon offense

for purposes of the sentence enhancement provisions of ORS 137.719(3)(b)(B). 361

Or at 35. In ultimately concluding that the California offense was not comparable

(because it had one fewer conduct element than the qualifying Oregon sexual

offense and could be committed through “even outwardly innocent touching”),

the court cited a decision of the California Supreme Court to that effect. Id. at

44. Even then, however, the Oregon Supreme Court seems to have relied ini-

tially on its own examination of the California statute and not wholly deferred

to the California court’s interpretation. See id. Notably, in Carlton, the court

began its analysis with an extensive exploration of the meaning of the applicable

Oregon statute, ORS 137.719(3)(b)(B), before turning to the question whether the

California statute at issue fell within its ambit. 361 Or at 35-43.

132 State v. Ramirez

issue in Mullen was whether the defendant, who previously

had been convicted of reckless driving under a different stat-

ute, was entitled to a jury instruction requiring the jury to

determine whether the defendant had been previously con-

victed of an offense involving alcohol or drugs. 186 Wash

App at 325-26. The court’s reference to RCW 46.61.5249

was in passing and clearly intended only as a contrasting

example of an offense that, unlike the offense for which the

defendant had previously been convicted, did involve alco-

hol or drugs. Id. at 333-34. As a result, it was dictum, and

not a binding statement of law. See Guzman, 366 Or at 28

(explaining that “the term dictum refers to a statement that

is not necessary to the court’s decision” (internal quotation

marks omitted)).

Second, even if the observation in Mullen were not

dictum, it would seem unlikely to be viewed as a correct

statement of Washington law. As noted above, 312 Or App

at 128 n 9, Washington courts must construe statutory lan-

guage strictly, and, unless there is an ambiguity in the text,

they may not resort to legislative history or otherwise give

statutes something other than a “literal and strict interpre-

tation.” State v. Dennis, 191 Wash 2d 169, 172-73, 421 P3d

944 (2018). As the foregoing discussion illustrates, there

are no apparent ambiguities in the relevant text of RCW

46.61.5249. As a result, construing that statute to add an

“under the influence” element would seem to deviate from

Washington law. And, although it would not be our role to

correct a Washington court’s statement of Washington law,

if, in fact, the statement in Mullen were a holding, that

understanding counsels against relying on the passing

reference to RCW 46.61.5249 in that case as somehow con-

trolling here.

In urging a different result, the dissent, 312 Or

App at 137-38 (Mooney, J., dissenting), relies on two other

Washington appellate decisions, State v. Bosio, 107 Wash

App 462, 27 P3d 636 (2001), and State v. Wu, 194 Wash

2d 880, 453 P3d 975 (2019), but neither of those opinions

supports the dissent’s view that a conviction under RCW

46.61.5249 falls within the scope of ORS 809.235(1)(b)(B).

First, in Bosio, the defendant was prosecuted under

Cite as 312 Or App 117 (2021) 133

Washington law for vehicular assault after she crashed the

car she had been driving and seriously injured her passen-

ger’s arm; subsequent testing disclosed that the defendant’s

BAC was .23 percent. 107 Wash App at 463-64. At trial, the

defendant requested that the jury be instructed on the ele-

ments of first-degree negligent driving as a lesser-included

offense. Id. The appellate court held that the trial court had

not erred in refusing that request. Id. at 466.

The court explained that vehicular assault could

be established based on either of two theories: (1) that the

person drove recklessly and caused serious bodily injury, or

(2) that the person drove intoxicated and caused serious

bodily injury. Id. at 465 (citing RCW 46.61.522(1)). To estab-

lish first-degree negligent driving, on the other hand, the

state was required to prove that the person drove negli-

gently, endangered persons or property, and “exhibit[ed]

effects of alcohol or drugs.” Id. Applying Washington’s case

law as to lesser-included offenses, the court determined

that first-degree negligent driving was not a lesser-included

offense of vehicular assault, because not every element of

first-degree negligent driving was a necessary element of

vehicular assault. Id. at 465-66.

Specifically, as to the intoxicated-driving theory of

vehicular assault, the court reasoned that it was not neces-

sary to prove that the person drove negligently, which was

an element of first-degree negligent driving. Id. Therefore,

the crime of first-degree negligent driving was not a lesser-

included offense to the crime of vehicular assault when

charged on an intoxicated-driver theory. And, as the dissent

observes, 312 Or App at 137 (Mooney, J., dissenting), the

court reached a similar conclusion as to the reckless-driving

theory of vehicular assault:

“To commit negligent driving in the first degree, a driver

must: drive negligently, endanger persons or property and

exhibit effects of alcohol or drugs. First degree negligent

driving is not a lesser-included offense of the [reckless-

driving] means of committing vehicular assault because

under that alternative, there is no requirement of signs of

intoxication.”

Bosio, 107 Wash App at 465.

134 State v. Ramirez

The dissent emphasizes Bosio’s reference to “signs

of intoxication” and suggests (without expressly saying so)

that the Washington court’s reference to “signs of intox-

ication” expressed its view that something more than the

statutorily defined “exhibit[ing of] the effects of having con-

sumed” intoxicants is required to prove negligent driving.

312 Or App at 137-38 (Mooney, J., dissenting). However, in

a later passage in Bosio, the court dispels any such belief.

In explaining why an earlier decision holding that negligent

driving was a lesser-included offense of vehicular assault

was no longer controlling, the court noted that, due to inter-

vening legislative changes, first-degree negligent driv-

ing now “includes [the additional element of] ‘exhibits the

effects of having consumed liquor or an illegal drug.’ ” Id. at

466 (quoting RCW 46.61.5249(1)(a)). In other words, rather

than holding that the negligent driving required more than

the statutorily defined exhibiting of effects, the court was

merely observing that requirement, itself, which, the court

correctly indicated, is not an aspect of vehicular assault

under Washington law.

The Washington Supreme Court’s decision in Wu

lends even less support for the dissent’s view. In relevant

part, Wu simply states that “[n]egligent driving includes as

an express element that the person ‘exhibits the effects of

having consumed liquor.’ ” 194 Wash 2d at 888 (quoting RCW

46.61.5249(1)(a) (emphasis added)). In other words, the court

was simply quoting the language of the statute, not constru-

ing it, not even in dictum. And, although, like the dissent,

we see no reason that the Washington Supreme Court would

inaccurately quote the statute—and agree that it did not—

that observation does nothing to support the dissent’s con-

clusion that the Washington law is one that “involv[es] the

impaired driving of a vehicle due to the use of intoxi[cants],”

as ORS 809.235(1)(b)(B) requires.

The dissent concludes by recounting the sentencing

proceedings in this case, including the prosecutor’s descrip-

tion of defendant’s Washington conviction as a “pled down

DUI.” 312 Or App at 140 (Mooney, J., dissenting). Echoing

the language of the Washington statute, the dissent empha-

sizes that, in his Washington case, defendant “ ‘exhibit[ed]

the effects of having consumed alcohol,’ ” id. (Mooney, J.,

Cite as 312 Or App 117 (2021) 135

dissenting), but the dissent does not take issue with our

conclusion that, under RCW 46.61.5249(1)(a), the element

of “exhibits the effects of having consumed liquor” can be

established without proving impairment. Finally, based

on the prosecution’s unopposed recitation of the contents

of defendant’s Washington judgment of conviction, the dis-

sent concludes that “the Washington conviction was appro-

priately before the court and available for it to consider

as it formulated defendant’s sentence.” 312 Or App at 141

(Mooney, J., dissenting). But, as the dissent itself acknowl-

edges, defendant has never contended that the conviction

was not “properly before the court.” See id. (Mooney, J., dis-

senting). Rather, defendant contends—as we conclude—that

the conviction itself does not satisfy the requirements of ORS

809.235(1)(b)(B). Whether or not the prosecutor’s comments

were evidence on which the trial court could base factual

findings—a matter that we need not consider—the dissent

has not persuaded us that the prosecutor’s recitation of the

elements of first-degree negligent driving as they appeared

in the judgment of conviction somehow supports a different

conclusion.

In sum, under ORS 809.235(1)(b)(B), an out-of-state

conviction cannot serve as a predicate offense unless the

offense requires proof that the person’s impaired driving

was causally related to the person’s use of an intoxicant.

The Washington offense that the trial court relied on in per-

manently revoking defendant’s driving privileges does not

have that requirement. Accordingly, the trial court erred.

Remanded for resentencing; otherwise affirmed.

MOONEY, J., dissenting.

Defendant pleaded guilty to driving under the influ-

ence of intoxicants (DUII). ORS 813.010. At the time of sen-

tencing, his driving privileges were permanently revoked

because he had been convicted of impaired driving twice

before, once in California and once in Washington. ORS

809.235(1)(b). Defendant argues, and the majority agrees,

that his license should not have been revoked because the

Washington conviction does not qualify as a predicate

offense under ORS 809.235. I respectfully disagree. In my

136 State v. Ramirez

view, the Washington conviction is a predicate offense and

defendant’s license was properly revoked.1

ORS 809.235(1)(b)2 requires permanent revocation

of driving privileges when

“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; 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 com-

bination 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.”

The relevant provision here is ORS 809.235(1)(b)(B), which

requires that the conviction be for an offense “that involved

the impaired driving of a vehicle due to the use of intoxicat-

ing liquor.” The question is whether defendant’s conviction

under Revised Code of Washington (RCW) 46.61.5249 con-

stitutes such a qualifying predicate offense. The majority

concludes that it does not; I conclude that it does.

1

Although the majority does not reach defendant’s other assignments of

error, I would also find that the California conviction was a predicate offense

and that, regardless of whether this was defendant’s first, second, or third DUII

conviction, the fine imposed was within the permissible statutory range. ORS

813.010(6); ORS 161.635(1)(a).

2

The language used in ORS 809.235(1)(b) is virtually identical to several

other statutes that enhance penalties for those repeatedly convicted of impaired

driving and reflects a statewide sentencing policy for those repeat offenders.

See, e.g., ORS 813.010(5) (increasing crime of DUII from a misdemeanor to a

felony); ORS 813.215 and ORS 813.220 (disqualifying individuals from DUII

diversion programs); ORS 809.730 (allowing for a motor vehicle to be seized);

ORS 813.430 (increasing the length of driving privilege suspension (1) related to

refusal or failure of a breath or blood test and (2) before a hardship permit may

issue).

Cite as 312 Or App 117 (2021) 137

To qualify as a predicate offense under ORS

809.235(1)(b)(B), defendant’s conviction for first-degree neg-

ligent driving under RCW 46.61.5249 must have “involved”

impaired driving due to the use of intoxicants. RCW

46.61.5249 provides, in relevant part:

“(1)(a) A person is guilty of negligent driving in the

first degree if he or she operates a motor vehicle in a man-

ner 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 or exhib-

its the effects of having inhaled or ingested any chemical,

whether or not a legal substance, for its intoxicating or hal-

lucinatory effects.

“* * * * *

“(2) For the purposes of this section:

“* * * * *

“(b) ‘Exhibiting the effects of having consumed liquor,

marijuana, or any drug’ means that a person has the odor

of liquor, marijuana, or any drug on his or her breath, or

that by speech, manner, appearance, behavior, lack of coor-

dination, or otherwise exhibits that he or she has consumed

liquor, marijuana, or any drug, and either:

“(i) Is in possession of or in close proximity to a con-

tainer that has or recently had liquor, marijuana, or any

drug in it; or

“(ii) Is shown by other evidence to have recently con-

sumed liquor, marijuana, or any drug.”

In State v. Bosio, 107 Wash App 462, 465, 27 P3d

636 (2001), the Washington Court of Appeals described neg-

ligent driving in the first degree as follows:

“To commit negligent driving in the first degree, a driver

must: drive negligently, endanger persons or property and

exhibit the effects of alcohol or drugs. First degree neg-

ligent driving is not a lesser-included offense of the first

alternative means of committing vehicular assault because

under that alternative, there is no requirement of signs of

intoxication.”

In other words, “signs of intoxication” are required for

negligent driving in the first degree. In State v. Wu, 194

138 State v. Ramirez

Wash 2d 880, 888, 453 P3d 975 (2019), the Supreme Court

of Washington stated that “[n]egligent driving includes as

an express element that the person ‘exhibits the effects of

having consumed liquor.’ ” (Quoting RCW 46.61.5249.) And,

although Wu concerned felony DUII, and its discussion of

negligent driving was dictum, I can think of no reason why

its description of negligent driving under RCW 46.61.5249

would be inaccurate. What is clear from the text of the stat-

ute and Bosio and Wu is that, in Washington, the crime of

negligent driving in the first degree includes (1) negligent

driving, (2) endangerment, and (3) exhibited effects of alco-

hol or drugs.

The majority nevertheless concludes that impair-

ment is not required for a conviction under RCW 46.61.5249

and, because of that, it is not an offense involving impaired

driving due to the use of alcohol or drugs. 312 Or App at

130-31. It presents a series of hypothetical scenarios to illus-

trate why a conviction for first-degree negligent driving in

Washington does not involve impairment due to intoxicants.

But the question is whether, during sentencing, the trial

court erred in concluding that defendant’s conviction for

first-degree negligent driving in Washington qualifies as a

predicate offense under ORS 809.235.

It is important to understand that, prior to 2007, ORS

809.235(1)(b) and similar statutory provisions increased or

enhanced penalties only when the defendant had been previ-

ously convicted of (1) DUII in Oregon under ORS 813.010 or

(2) “[t]he statutory counterpart to ORS 813.010” of another

jurisdiction. But, in 2007, House Bill (HB) 2651 expanded

the reach of those statutes by adding the language currently

found in subparagraphs (B) and (C) of ORS 809.235(1)(b),

quoted above, ORS 813.010(5)(a), ORS 809.730(1)(a), ORS

813.215(1)(a), ORS 813.220(7)(a), and ORS 813.430. See Or

Laws 2007, ch 879, § 4.

The Supreme Court, in State v. Kellar, 349 Or 626,

633, 247 P3d 1232 (2011), provides a historical overview of

the evolution of those statutory provisions that supports the

conclusion that the scope of ORS 809.235(1)(b) and similar

provisions was expanded in 2007 by the passage of HB 2651:

Cite as 312 Or App 117 (2021) 139

“Two of the 2007 legislative changes bear mention. First,

the legislature omitted the term ‘misdemeanor,’ found in

the 2003 and 2005 versions of ORS 809.235, as a limitation

on the DUII convictions that can serve as predicate convic-

tions for the purposes of ORS 809.235. Second, the legisla-

ture added subparagraphs (B) and (C), which expanded the

category of DUII offenses from other jurisdictions that will

result in the permanent revocation of a person’s driver’s

license to include acts that violate that jurisdiction’s DUII

laws but that might not be criminal in Oregon.”

(Emphasis added.) The majority opinion discounts the impor-

tance of the history and context of ORS 809.235 carefully

outlined by the Supreme Court in Kellar, and it dismisses

that court’s conclusion that a predicate offense from another

jurisdiction need not be a criminal offense in Oregon as a

mere observation made “in passing.” 312 Or App at 126 n 6.

And, yet, the history and evolution of ORS 809.235 is as

important here as it was in Kellar to determining whether

an out-of-state conviction qualifies as a predicate offense

requiring a permanent license revocation.

The Supreme Court revisited that history in State

v. Guzman, 366 Or 18, 455 P3d 485 (2019), a case concerned

with the “statutory counterpart” language of ORS 813.011.

In rejecting an argument by the state that, when the vot-

ers adopted ORS 813.011 in 2010, they would have under-

stood the phrase “statutory counterpart to ORS 813.010” to

include any statute with the “same use, role or character-

istics” as ORS 813.010, the Supreme Court noted the 2007

amendments and quoted extensively from our decision in

State v. Donovan, 243 Or App 187, 256 P3d 196 (2011), in

which we discussed ORS 813.215(1)(a):

“The Court of Appeals explained in Donovan that

“ ‘[t]hose disqualifying offenses are phrased in the dis-

junctive—that is, they are presented as alternative means

of rendering a person ineligible for diversion. Thus, we

presume the legislature intended subparagraphs (B) and

(C) [the new additions] to have independent meaning from

subparagraph (A) [where the term ‘statutory counter-

part’ appears], rather than to be duplicative or illustra-

tive of what a ‘statutory counterpart’ might be. Any other

140 State v. Ramirez

interpretation would mean the amendments were merely

redundant of what was already in the statute.’ ”

Guzman, 366 Or at 32-33 (quoting Donovan, 243 Or App at

196 (brackets in Guzman)).

It is clear that the 2007 amendments rejected the

requirement of a direct connection to Oregon’s DUII statute

and expanded the type of out-of-state convictions that would

qualify as predicate offenses. The majority’s acknowledg-

ment that this is not a “statutory counterpart” case is cor-

rect. But, respectfully, it seems to me that, by that acknowl-

edgment, the court today sidesteps the importance of the

legislature’s decision in 2007 to broaden the scope of out-

of-state convictions that qualify as predicate offenses, and

it analyzes this case as if those amendments had not been

made.

Defendant was not convicted under RCW 46.61.5249

for endangering persons or property by mere negligent driv-

ing. He was convicted under RCW 46.61.5249 because, in

addition to driving negligently and dangerously, he also

“exhibit[ed] the effects of having consumed alcohol.” At the

time of sentencing, the state described the Washington con-

viction for the court as follows:

“Defendant was also convicted of Negligent Driving in the

First Degree in the State of Washington in 2016. This is

a pled down DUI. I’ve got a certified copy of the judgment

showing that this was a DUII. He was ordered to attend the

DUI victim’s impact panel. It shows that this is a negligent

driving—sorry a—a DUI judgment amended to Negligent

Driving in the First Degree. He was ordered to obtain and

use an ignition interlock device, undergo alcohol and sub-

stance classes, and he stated in his petition that on April

10th, 2016 in Pasco, Washington I did operate my motor

vehicle in a negligent manner by exhibiting the effects

of consuming alcohol, and in the State of Washington

under their statutory system a negligent Driving in the

First Degree is a predicate offense for a felony DUI. If a

person were to have a negligent Driving in the First-

Degree conviction, a DUI conviction, their third convic-

tion would be a felony DUI, similar to here in the State of

Oregon.”

Cite as 312 Or App 117 (2021) 141

We note here that the state’s counsel referred to a certified

copy of the judgment that he was holding as he spoke, but

he did not technically offer it into the evidentiary record.

Generally, the assertions of counsel are not evidence. State

v. Green, 140 Or App 308, 317 n 11, 915 P2d 460 (1996).

However, in the context of sentencing, courts may rely on

assertions of counsel determined to be “reliable.” State v.

Balkin, 134 Or App 240, 242, 895 P2d 311, rev den, 321 Or

397 (1995); State v. McNeil, 170 Or App 407, 412, 12 P3d

992 (2000). Although the court made no express reliability

findings, no party on appeal disputes that the Washington

conviction was properly before the court. Defendant did not

object to the state’s reference to the judgment nor claim that

the prosecutor’s description was unreliable. Accordingly, the

Washington conviction was appropriately before the court

and available for it to consider as it formulated defendant’s

sentence.

Nevertheless, the majority concludes that defen-

dant’s conviction does not qualify and that it essentially

amounted to a conviction for first degree-negligent-but-not-

impaired driving. It illustrates its conclusion through hypo-

thetical drivers who sip but do not swallow, keep alcohol or

drugs within reach while driving, drive negligently or reck-

lessly and then cause accidents, but who, according to the

majority, are not impaired. Would that it were so.

Impaired drivers place themselves and others at

unnecessary risk of injury and death. And, yet, those strug-

gling with alcoholism and other addiction disorders can

recover and achieve sobriety. That is one reason why DUII

diversion programs exist for first-time offenders. And it is a

reason why drug and alcohol treatment programs are ordered

as probationary conditions for repeat offenders. It cannot

seriously be disputed that the risk posed by impaired driv-

ers is significant and likely increases with each additional

conviction for impaired driving. The increasing penalties

for drivers who continue to drive impaired reflects reason-

able and prudent intolerance for the risk that those drivers

repeatedly create. Permanent license revocation removes

the opportunity, at least in theory, for a repeat offender to

exercise poor judgment about when he has sipped or swal-

lowed too much to drive safely.

142 State v. Ramirez

The trial court was well within its authority to

revoke defendant’s license because he was convicted of

exactly the type of offense that the Oregon legislature

intended to include as a predicate offense when it expanded

ORS 809.235(1)(b) in 2007 to include the driving offenses

described in subparagraphs (B) and (C). Accordingly, I

dissent.

Egan, C. J., and DeVore and Tookey, JJ., join in this

dissent.