State v. Guzman/Heckler

18

Argued and submitted June 6; in State v. Guzman, S066328, decision of Court

of Appeals reversed, judgment of circuit court reversed, and case remanded

to circuit court for further proceedings; in State v. Heckler, S066373, decision

of Court of Appeals reversed, judgment of circuit court reversed, and case

remanded to circuit court for further proceedings December 27, 2019

STATE OF OREGON,

Respondent on Review,

v.

RICKY LEE GUZMAN,

Petitioner on Review.

(CC 15CR52393) (CA A164152) (SC S066328 (Control))

STATE OF OREGON,

Respondent on Review,

v.

TIMOTHY JAMES HECKLER,

Petitioner on Review.

(CC 16CR33772) (CA A163979) (SC S066373)

455 P3d 485

Defendants unsuccessfully moved to exclude certain prior convictions, argu-

ing that those convictions were not “statutory counterparts” to ORS 813.010 that

could raise the seriousness of their present driving under the influence of intox-

icants offense under ORS 813.011. The Court of Appeals affirmed in both cases.

Held: (1) For a foreign conviction to be a statutory counterpart to ORS 813.010

for the purposes of ORS 813.011, the conviction must be for an offense with ele-

ments that closely match those of ORS 813.010; (2) defendant Guzman’s Kansas

conviction was not under a statutory counterpart to ORS 813.010; (3) defendant

Heckler’s Colorado convictions were not under a statutory counterpart to ORS

813.010.

In State v. Guzman, S066328, the decision of the Court of Appeals is reversed.

The judgment of the circuit court is reversed, and the case is remanded to the

circuit court for further proceedings. In State v. Heckler, S066373, the decision of

the Court of Appeals is reversed. The judgment of the circuit court is reversed,

and the case is remanded to the circuit court for further proceedings.

En Banc

On review from the Court of Appeals.*

______________

* S066328 on appeal from Deschutes County Circuit Court, Michael Adler,

Judge. 294 Or App 552, 432 P3d 387 (2018); S066373 on appeal from Deschutes

County Circuit Court, Wells B. Ashby, Judge. Alta Jean Brady, Judge (Amended

Judgment). 294 Or App 142, 430 P3d 224 (2018).

Cite as 366 Or 18 (2019) 19

Kyle Krohn, Deputy Public Defender, Office of Public

Defense Services, Salem, argued the cause and filed the

briefs for petitioners on review. Also on the briefs was Ernest

G. Lannet, Chief Defender.

Robert M. Wilsey, Assistant Attorney General, Salem,

argued the cause and filed the briefs for respondent on

review. Also on the briefs were Ellen F. Rosenblum, Attorney

General, and Benjamin Gutman, Solicitor General.

NELSON, J.

In State v. Guzman, S066328, the decision of the Court

of Appeals is reversed. The judgment of the circuit court is

reversed, and the case is remanded to the circuit court for

further proceedings. In State v. Heckler, S066373, the deci-

sion of the Court of Appeals is reversed. The judgment of the

circuit court is reversed, and the case is remanded to the

circuit court for further proceedings.

20 State v. Guzman/Heckler

NELSON, J.

These consolidated cases concern two defendants

who were convicted of driving under the influence of intoxi-

cants (DUII), a crime that is ordinarily a misdemeanor but

that, in each case, was elevated to a felony based on the

defendant’s two prior convictions from other jurisdictions.

See ORS 813.011 (DUII is a Class C felony if the person has

been convicted at least two times in the past ten years of

DUII in violation of ORS 813.010 or its statutory counterpart

in another jurisdiction). The question before us is whether

the foreign laws under which defendants were convicted

are “statutory counterparts” to ORS 813.010, the statute

criminalizing DUII in Oregon. After analyzing the relevant

statutes, we conclude that the appropriate inquiry requires

“close element matching,” State v. Carlton, 361 Or 29, 42,

388 P3d 1093 (2017), between ORS 813.010 and the foreign

offense, an approach that we have previously employed in

giving legal effect to convictions from other jurisdictions.

Applying that standard to defendants’ foreign convictions,

we conclude that none of the convictions at issue in this case

were under a statutory counterpart to ORS 813.010.

I. BACKGROUND

A. State v. Guzman

Defendant Guzman was charged by indictment with

felony DUII and other crimes. With respect to the DUII

charge, the indictment alleged that Guzman had two prior

convictions for DUII from other jurisdictions, including

a 2015 Kansas conviction. Guzman moved to exclude the

Kansas conviction, contending that it was not a “statutory

counterpart” to ORS 813.010 and therefore could not be a

basis for treating his Oregon offense as a felony.

Guzman argued that the statute under which he

had been convicted, Kan Stat Ann § 8-1567(a), was broader

than ORS 813.010 in two respects: it applied to “attempting

to operate any vehicle” and it allowed conviction based on a

blood alcohol concentration of .08 “as measured within three

hours of the time of operating or attempting to operate a

vehicle.” Both, he argued, made Kan Stat Ann § 8-1567(a)

meaningfully broader than ORS 813.010, with the result

Cite as 366 Or 18 (2019) 21

that it could not be a statutory counterpart. The state

argued, relying on State v. Mersman, 216 Or App 194, 172

P3d 654 (2007), rev den, 344 Or 390 (2008), that those dif-

ferences in statutory elements did not matter, because Kan

Stat Ann § 8-1567(a) shared a “use, role, or characteristics”

with ORS 813.010.

The trial court denied Guzman’s motion and ruled

that the Kansas conviction was admissible to prove that

defendant had two prior convictions for DUII or a statutory

counterpart in another jurisdiction. Guzman was tried by a

jury. At trial, the state introduced records of Guzman’s for-

eign convictions, including his Kansas conviction, as exhib-

its, and the jury found him guilty of felony DUII based on

those records.

Guzman appealed, assigning error to the trial

court’s denial of his motion to exclude the Kansas convic-

tion.1 He argued that Mersman, and subsequent Court of

Appeals cases, had been overruled by this court’s decision in

Carlton, 361 Or 29, which had been decided after Guzman’s

trial. In light of Carlton, Guzman argued, the term “stat-

utory counterpart” in ORS 813.011 applied only to foreign

offenses virtually identical to ORS 813.010.

The Court of Appeals disagreed, stating without

explanation that Carlton did not overrule Mersman and con-

cluding that Guzman’s Kansas conviction was properly con-

sidered a conviction under a statutory counterpart. State v.

Guzman, 294 Or App 552, 432 P3d 387 (2018).

Guzman petitioned for review, which we allowed.

B. State v. Heckler

Defendant Heckler was charged by indictment with

felony DUII and reckless driving. With respect to the DUII

offense, the indictment alleged that he had previously been

“convicted of driving while under the influence of intoxi-

cants in violation of the laws of this state or another juris-

diction at least two times in the 10 years prior to the date

1

Guzman raised a second issue on appeal concerning whether certain evi-

dence of his intoxicated driving had been wrongly admitted. We did not allow

review of that issue.

22 State v. Guzman/Heckler

of the current offense.” The indictment listed two separate

Colorado convictions, which occurred in 2006 and 2010.

Prior to trial, Heckler moved to exclude both prior

convictions. He noted that both convictions had been for vio-

lations of Colo Rev Stat § 42-4-1301(1)(b), which defines the

offense of “driving while ability impaired.” That offense, he

argued, was a lesser included offense of Colorado’s princi-

pal offense of “driving under the influence,” Colo Rev Stat

§ 42-4-1301(1)(a), and was therefore not a “statutory coun-

terpart” to ORS 813.010. Relying on Mersman, the state

responded by arguing that the Colorado offense had the

same “use, role, or characteristics” as ORS 813.010 and was

therefore a statutory counterpart. The trial court ruled for

the state and did not exclude the convictions.

Heckler entered a conditional no contest plea to fel-

ony DUII, reserving his right to challenge the trial court’s

pretrial ruling on appeal. See ORS 135.335(3) (authorizing

conditional pleas). After the trial court entered a judgment

of conviction based on that guilty plea, Heckler appealed,

assigning error to the denial of his motion and arguing that

neither of his Colorado convictions involved a violation of a

“statutory counterpart” to ORS 813.010. The Court of Appeals

affirmed, relying on its decisions in State v. Donovan, 243 Or

App 187, 256 P3d 196 (2011), and Mersman. State v. Heckler,

294 Or App 142, 430 P3d 224 (2018).

Heckler petitioned for review, which we allowed.

II. “STATUTORY COUNTERPART”

This case turns on the meaning of the term “statu-

tory counterpart” in ORS 813.011, a statute enacted by the

voters through a ballot measure approved in 2010. In per-

tinent part, that statute provides that the crime of DUII

will be a felony “if the defendant has been convicted of driv-

ing under the influence of intoxicants in violation of ORS

813.010, or its statutory counterpart in another jurisdic-

tion, at least two times in the 10 years prior to the date of

the current offense.” ORS 813.011(1). The parties approach

that interpretive question differently. Defendants’ primary

argument is that “statutory counterpart” should be read

narrowly, to include only foreign offenses with elements

the same or nearly the same as ORS 813.010. Defendants

Cite as 366 Or 18 (2019) 23

argue that the text and context of ORS 813.011 support that

reading. They also rely on Carlton, where we addressed the

meaning of “statutory counterpart” in several statutes—

although not ORS 813.011—in the course of interpreting the

term “comparable offenses.” Defendants argue that Carlton,

as precedent of this court construing the term “statutory

counterpart,” should guide, if not govern, our interpreta-

tion of “statutory counterpart” in ORS 813.011. Defendants

also argue that a narrow interpretation of ORS 813.011

is required in order to avoid two constitutional problems:

a violation of principles of nondelegation and a potential con-

flict with the Supreme Court’s decision in Apprendi v. New

Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000).

The state, by contrast, focuses on a single piece

of context. The state argues that, when ORS 813.011 was

enacted in 2010, two decisions of the Court of Appeals—

Mersman and State v. Rawleigh, 222 Or App 121, 192 P3d

292 (2008)—had interpreted the term “statutory counter-

part” to include foreign offenses with the same “use, role,

or characteristics” as ORS 813.010 and that those decisions

had not required close element matching. The state argues

that the voters who enacted ORS 813.011 would have had

their understanding informed primarily by that context.

We approach this case using our ordinary interpre-

tive methodology. See State v. Gaines, 346 Or 160, 206 P3d

1042 (2009); Burke v. DLCD, 352 Or 428, 432-33, 290 P3d

790 (2012) (applying that methodology to a law enacted by

the people). Although it is neither party’s focus, we begin

our analysis by examining the text of ORS 813.011. We then

turn to Carlton. Although we agree with defendants that

Carlton is relevant precedent concerning the meaning of the

term “statutory counterpart,” we conclude that it does not

control the construction of ORS 813.011. Finally, we turn to

the Court of Appeals decisions that the state relies on and to

defendants’ constitutional arguments.

A. Text

ORS 813.011(1) provides:

“Driving under the influence of intoxicants under ORS

813.010 shall be a Class C felony if the defendant has been

convicted of driving under the influence of intoxicants in

24 State v. Guzman/Heckler

violation of ORS 813.010, or its statutory counterpart in

another jurisdiction, at least two times in the 10 years

prior to the date of the current offense.”

The first important term in that text is “convicted of.” That

phrase immediately and substantially limits the inquiry

created by ORS 813.011(1). The relevant question is not

whether the defendant has, in fact, driven under the influ-

ence of intoxicants; what matters is whether that conduct

formed the basis for a conviction.

The next key phrase is “driving under the influ-

ence of intoxicants,” which specifies the particular conduct

of which the defendant must have been convicted. Relevant

context for that phrase comes from ORS 813.010(1), which

provides:

“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 person as shown by chemical analysis of

the breath or blood of the person made under ORS 813.100,

813.140 or 813.150;

“(b) Is under the influence of intoxicating liquor, canna-

bis, a controlled substance or an inhalant; or

“(c) Is under the influence of any combination of intoxicat-

ing liquor, cannabis, a controlled substance and an inhalant.”

In light of that context, “driving under the influence of intox-

icants” could be read to refer to the precise elements of ORS

813.010. But more immediate context suggests otherwise:

ORS 813.011(1) refers to convictions for “driving under the

influence of intoxicants in violation of ORS 813.010, or its

statutory counterpart in another jurisdiction.” (Emphasis

added.) That indicates that “driving under the influence of

intoxicants” should not necessarily be read to be coexten-

sive with ORS 813.010, at least to the extent that the term

“statutory counterpart” includes offenses that are not iden-

tical to ORS 813.010.

That brings us to the term “statutory counterpart.”

Only one of the senses of “counterpart” set out in Webster’s

Third New Int’l Dictionary 520 (unabridged ed 2002) seems

relevant here:

Cite as 366 Or 18 (2019) 25

“3 a : one remarkably similar to another : a person or thing

so like another that it seems a duplicate * * * b : equivalent

: something or someone having the same use, role, or char-

acteristics often in a different sphere or period[.]”

The listed subsenses have the same core of meaning—a high

degree of similarity. The range from “remarkabl[e]” similar-

ity to “so like another that it seems a duplicate” to “same

* * * characteristics” is not great. Any ambiguity in the

phrase “statutory counterpart” does not arise from uncer-

tainty about how similar to ORS 813.010 a foreign offense

must be to qualify as a statutory counterpart—it must be

very similar—but from uncertainty about the respects in

which it must be similar.

Read in context, however, that ambiguity is eas-

ily resolved. The phrase “statutory counterpart” refers to

a law under which the defendant was “convicted of driv-

ing under the influence of intoxicants.” ORS 813.011. As a

result, a “statutory counterpart” to ORS 813.010 must, like

ORS 813.010 itself, be an offense that includes the elements

of “driving under the influence of intoxicants.” It follows

that the relevant similarity between ORS 813.010 and its

statutory counterparts is that they have those elements in

common—not that they share some other “characteristics,”

“use,” or “role.”

B. State v. Carlton

We turn to Carlton, a decision where we discussed

other uses of the term “statutory counterpart,” along with

various similar terms throughout our laws. Defendants

argue that this court construed “statutory counterpart”

in Carlton to require close element matching and that we

should adhere to that holding here. They argue that, even if

Carlton is not read that expansively, it at least established

a presumption that “statutory counterpart” should be read

narrowly, in the absence of context indicating otherwise.

The state argues that our discussion of “statutory counter-

part” in Carlton was dicta and that, in any event, Carlton

does not preclude the argument that it makes in this case.2

2

The state also makes a misdirected argument that we should not look to

Carlton as context because it postdates the adoption of ORS 813.011 by the vot-

ers in 2010. However, the only significance that we accord Carlton, and the only

significance that defendants argue that we should lend it, is for its precedential

26 State v. Guzman/Heckler

In Carlton, we construed ORS 137.719, a statute

providing for presumptive life sentences for defendants

who had previously been sentenced two or more times for

felony sex offenses, including “[s]entences imposed by any

other state or federal court for comparable offenses.” ORS

137.719(3)(b)(B). The defendant in Carlton had three prior

convictions under California Penal Code § 288(a), which

defines an offense that “may be proved by any touching of

a child, even outwardly innocent touching, if the touch is

sexually motivated.” Carlton, 361 Or at 44.

Beginning with the term “comparable offenses,” we

consulted the dictionary definition of “comparable,” conclud-

ing that

“the word ‘comparable’ has two primary senses. Using the

first sense, that word could refer to a degree of similar-

ity that makes comparison appropriate based on the com-

monality of salient features of the things being compared

(meaning that they are alike in substance or essentials).

Alternatively, using the second sense, the word could

describe a very high degree of similarity (meaning virtu-

ally identical).”

Id. at 37. We reasoned that “[t]he bare text of ORS 137.719

(3)(b)(B)” could support either meaning, and therefore turned

to context, “which includes other related statutes, particu-

larly statutes that concern how a defendant’s prior foreign

convictions or sentences should be considered for purposes

of sentencing on an Oregon conviction.” Id. at 38.

We observed that many other statutes gave effect

to foreign convictions using somewhat different terms and

noted that “each of the terms that are used in the cited

examples—‘statutory counterpart,’ ‘would constitute,’ and

‘the elements’ would ‘constitute’—are consistent in meaning

with the more restrictive primary meaning of ‘comparable.’ ”

Id. at 41. We also found it “notable that the assault statutes

effect. Precedential decisions from this court are one source of context that we

consider at the first level of construction. Liberty Northwest Ins. Corp., Inc. v.

Watkins, 347 Or 687, 692, 227 P3d 1134 (2010) (“As part of that first level of

analysis, this court considers its prior interpretations of the statute.”); State v.

Murray, 343 Or 48, 52, 162 P3d 255 (2007) (“At the first level of analysis of a stat-

ute, this court also considers case law interpreting that statute.”).

Cite as 366 Or 18 (2019) 27

use ‘equivalent crime in another jurisdiction’ and ‘statutory

counterpart in any jurisdiction’ interchangeably.” Id.

We reasoned that

“[t]hose examples reveal a consistent pattern. Where the

purpose of considering a prior conviction is to identify and

then ‘count’ specific criminal history, generally speak-

ing, the legislature (both directly and by approving the

Sentencing Guidelines) has required that the historical

offense be the same as or nearly the same as a qualifying

Oregon offense.”

Id. at 41-42. We also observed that there were good reasons

why the legislature would want to adopt a relatively narrow

rule:

“It is the prerogative of the Oregon legislature to determine

what factual elements will give rise to criminal responsibil-

ity under Oregon law. When another state adopts a differ-

ent legislative policy, no matter how defensible or similar

to what the Oregon legislature might (or might not) have

adopted if it had specifically considered the matter—that

state has made its own public policy judgment. Unless a

less restrictive meaning is evident from the text and con-

text of an Oregon conviction-counting statute, there is no

reason to presume that the Oregon legislature intended to

adopt another state’s policy by reference, without the atten-

dant deliberative safeguards that Oregon’s own legislative

processes prescribe.”

Id. at 42. We therefore concluded that the legislature meant

“comparable offenses” to incorporate the more restrictive

meaning of “comparable” so as to “refer[ ] to offenses with

elements that are the same as or nearly the same as the

elements of an Oregon felony sex crime, not to offenses that

merely share a core similarity with such an offense.” Id. at

43.

The state takes the position that anything we said

about the term “statutory counterpart” in Carlton was dicta

and is therefore not controlling here. See Halperin v. Pitts,

352 Or 482, 494, 287 P3d 1069 (2012) (noting that although

a prior construction in dictum may be persuasive, “we are

not required to follow it as precedent” (emphasis added)). The

state argues that anything that we said about “statutory

28 State v. Guzman/Heckler

counterpart” was not necessary to our decision in Carlton

because the issue before the court was the meaning of a dif-

ferent term—“comparable offenses”—as it was used in ORS

137.719(3)(b)(B), and that we could have interpreted that

term and that statute without reference to ORS 813.010.

As we have explained, the term dictum “refers to

a statement that is not necessary to the court’s decision.”

Engweiler v. Persson/Dept. of Corrections, 354 Or 549, 558,

316 P3d 264 (2013). In Carlton, however, our analysis of

terms related to “comparable offenses,” including “statutory

counterpart,” was how this court resolved a textual ambi-

guity in ORS 137.719(3)(b)(B). Even if the state were correct

that that ambiguity could have been resolved in a different

manner, we have repeatedly rejected the argument that the

availability of an alternate route to the same result makes

the reasoning that we did rely upon dicta. See Engweiler,

354 Or at 558-59; State v. Stevens, 364 Or 91, 98, 430 P3d

1059 (2018).

Thus, Carlton’s conclusion—that when Oregon stat-

utes give legal effect to foreign convictions, those statutes

generally require a form of close element matching, “[u]n-

less a less restrictive meaning is evident from the text and

context,” 361 Or at 42—is relevant to interpreting statutes

that use the term “statutory counterpart” for that purpose,

including ORS 813.011. That presumption favors defendants’

narrow reading of “statutory counterpart” and is consistent

with the most straightforward reading of the text of ORS

813.011. Yet nothing in Carlton forecloses the argument

advanced by the state in this case. The state does not take

issue with Carlton’s general presumption in favor of a nar-

row reading of “statutory counterpart.” It argues, however,

that ORS 813.011 does not require close element matching

because it was adopted at a time when the Court of Appeals

had interpreted “statutory counterpart” more broadly—an

argument that a broader reading is “evident from the text

and context.” 361 Or at 42. We therefore turn to that addi-

tional piece of context—the decisions of the Court of Appeals

prior to 2010—to determine whether it supports a different

reading of “statutory counterpart” in ORS 813.011 than that

indicated by its text and other context.

Cite as 366 Or 18 (2019) 29

C. Prior Court of Appeals Decisions as Context

The parties disagree about when and whether we

should treat decisions of the Court of Appeals as context

that the legislature—or the people acting in their legisla-

tive capacity—would have relied on in enacting new laws.

Defendants argue that we have rarely, if ever, looked to

Court of Appeals decisions as context in the absence of spe-

cific legislative history indicating that the legislature was

aware of a particular decision. They contend that reliance

on Court of Appeals decisions should be limited to such cir-

cumstances. The state, by contrast, argues that there is no

meaningful difference between decisions of this court and

those of the Court of Appeals.

We have often recognized that “[c]ourt decisions

that existed at the time that the legislature enacted a

statute—and that, as a result, it could have been aware

of—may be consulted in determining what the legislature

intended in enacting the law as part of the context for the

legislature’s decision.” OR-OSHA v. CBI Services, Inc., 356

Or 577, 593, 341 P3d 701 (2014). And this court has adverted

to the principle that “[w]hen a statute has been construed

by the court of last resort of the state and is later re-

enacted, it is deemed that the Legislature has adopted the

court’s construction unless the contrary purpose is clearly

shown by the language of the act.” Overland et al. v. Jackson

et al., 128 Or 455, 463-64, 275 P 21 (1929). This court also

has indicated that, although “the Court of Appeals is not the

court of last resort,” the same principle applies when legisla-

tive history indicates that the legislature was aware of the

Court of Appeals’ interpretation. State v. Ford, 310 Or 623,

637 n 21, 801 P2d 754 (1990).

When interpreting statutes with text borrowed

from foreign jurisdictions, our decisions similarly accord a

special status to prior interpretations by the highest court

of the relevant jurisdiction:

“If the Oregon legislature adopts a statute or rule from

another jurisdiction’s legislation, we assume that the

Oregon legislature also intended to adopt the construction

of the legislation that the highest court of the other juris-

diction had rendered before adoption of the legislation in

Oregon.”

30 State v. Guzman/Heckler

Jones v. General Motors Corp., 325 Or 404, 418, 939 P2d 608

(1997); see also State v. Cooper, 319 Or 162, 167-68, 874 P2d

822 (1994) (“When the Oregon legislature adopts a statute

modeled after another jurisdiction, an interpretation of that

statute by the highest court of that jurisdiction that was

rendered in a case decided before adoption of the statute by

Oregon is considered to be the interpretation of the adopted

statute that the Oregon legislature intended.”); State v.

Stockfleth/Lassen, 311 Or 40, 50, 804 P2d 471 (1991) (“[W]hen

Oregon adopts the statute of another jurisdiction, the legis-

lature is presumed also to adopt prior constructions of the

statute by the highest court of that jurisdiction.”).

But, although we have accorded greater signifi-

cance to decisions of the highest court of another jurisdic-

tion, we have never altogether discounted decisions of lower

appellate courts of that jurisdiction, even in the absence of

legislative history specifically indicating that our legisla-

ture was aware of those decisions. For example, in Lindell v.

Kalugin, 353 Or 338, 355, 297 P3d 1266 (2013), interpreting

an Oregon law based on a federal rule of civil procedure that

had not been construed by the United States Supreme Court,

we treated a consistent pattern of lower “federal court deci-

sions as at least highly persuasive as to the intentions of the

Oregon legislature in borrowing from the federal rules.” And

in State v. Edmonds, 364 Or 410, 422-23, 435 P3d 752 (2019),

we interpreted an Oregon rule of evidence that had been

derived from federal law, and we looked to a Second Circuit

decision as context. Although we emphasized that that deci-

sion had proved influential on other federal appellate courts,

and that no federal appellate court had reached a different

conclusion on the point in question, we did not discount the

decision because it did not issue from the Supreme Court

or because the legislature had not specifically indicated its

awareness of the decision. Id. at 423-24.

Although defendants may be correct that we typi-

cally have not looked to Court of Appeals decisions as context

in the absence of an indication that the legislature was aware

of them, we see no reason to elevate that practice to a firm

rule. Given our treatment of intermediate appellate court

decisions from other jurisdictions, it would be anomalous to

refuse to consider Court of Appeals decisions as context in

Cite as 366 Or 18 (2019) 31

the absence of specific legislative history. Simultaneously,

however, our decisions have never indicated that decisions of

an intermediate appellate court are as relevant as decisions

of the jurisdiction’s highest appellate court. Legislators, like

other reasonable readers of court decisions, are aware that

a decision of the Court of Appeals does not settle the law to

the same degree as does a decision of this court.

It also makes little sense, in this context, not to rec-

ognize differences between Court of Appeals decisions. On

one end of the spectrum, a longstanding Court of Appeals

decision interpreting a statute that this court never has con-

sidered is more likely to be known to the legislature. On the

other end of the spectrum, it makes less sense to assume—

absent a specific indication—that the legislature is aware of

every recent Court of Appeals decision and that it immedi-

ately treats all such decisions as fully determinative of the

meaning of an interpreted statute. That is particularly the

case if the decision in question is in tension with other deci-

sions, leaves important questions unanswered, or has had

its validity called into question. Similar considerations have

informed our reliance on intermediate appellate court deci-

sions from other jurisdictions.3

D. State v. Mersman and State v. Rawleigh as Context

The state argues that in 2010, when ORS 813.011

was adopted by the voters as part of Measure 73, the vot-

ers would have had their understanding of the term “statu-

tory counterpart” shaped primarily by two Court of Appeals

opinions, Mersman and Rawleigh. Mersman interpreted the

term “statutory counterpart” in ORS 813.010(5), where, as

in ORS 813.011, it allows certain foreign convictions to ele-

vate violations of ORS 813.010(1) into a felony. 216 Or App

at 196-97. Mersman concluded that an Alaska offense was a

statutory counterpart to ORS 813.010 because the two stat-

utes “have the same use, role, or characteristics.” Id. at 204.

Rawleigh interpreted the phrase “statutory counterpart” as

it appeared in ORS 813.215, where it governs which foreign

convictions or charges make a defendant ineligible for DUII

3

The parties also disagree on whether it is appropriate to treat prior judicial

decisions as context when interpreting laws enacted by the people. We need not

take up that question because we find that context unhelpful for other reasons.

32 State v. Guzman/Heckler

diversion. 222 Or App at 123. Rawleigh, relying on Mersman,

reasoned that a Washington offense was a statutory coun-

terpart to ORS 813.010, concluding that “common uses,

roles, and characteristics are sufficient, despite the possi-

ble differences in the substantive scope of the respective

statutes.” Id. at 128. Because of those decisions, the state

argues, voters in 2010 would have understood a “statutory

counterpart” to ORS 813.010 to include any statute with the

same “use, role, or characteristics” as ORS 813.010.

The first difficulty with the state’s argument is

that, in 2007, the legislature amended ORS 813.010(5), ORS

813.215, and several other statutes using the term “statu-

tory counterpart” to include two additional classes of for-

eign offenses, in addition to statutory counterparts to ORS

813.010, that would trigger the same Oregon consequences:

“(B) A driving under the influence of intoxicants offense

in another jurisdiction that involved the impaired driving

or operation of a vehicle, an aircraft or a boat due to the use

of intoxicating liquor, cannabis, a controlled substance, an

inhalant or any combination thereof.

“(C) A driving offense in another jurisdiction that

involved operating a vehicle, an aircraft or a boat while

having a blood alcohol content above that jurisdiction’s per-

missible blood alcohol content.”

Or Laws 2007, ch 879, § 3.4

Neither Mersman nor Rawleigh were decided under

the amended statutes. The first Court of Appeals decision to

discuss the significance of those changes was Donovan, 243

Or App 187, in 2011. In Donovan, the Court of Appeals con-

sidered the effect of the amendment on ORS 813.215(1)(a),

which disqualifies defendants from the DUII diversion

program based on pending charges for DUII under ORS

813.010 or a qualifying foreign statute. The Court of Appeals

explained in Donovan that

“[t]hose disqualifying offenses are phrased in the disjunctive—

that is, they are presented as alternative means of rendering

4

The quoted text corresponds to the addition to ORS 813.010(5). That text

is virtually identical to that added to other statutes. See Or Laws 2007, ch 879,

§§ 4-8, 10.

Cite as 366 Or 18 (2019) 33

a person ineligible for diversion. Thus, we presume the leg-

islature intended subparagraphs (B) and (C) [the new addi-

tions] to have independent meaning from subparagraph (A)

[where the term “statutory counterpart” appears], rather

than to be duplicative or illustrative of what a ‘statutory

counterpart’ might be. Any other interpretation would

mean the amendments were merely redundant of what was

already in the statute.

“At first blush, then, the amendments to ORS 813.215

(1)(a) seem to narrow the meaning of ‘statutory counter-

part’ by excluding from its ambit offenses that involve ‘the

impaired driving of a vehicle’ or a violation of the BAC

limit—offenses that we might otherwise conclude fall

under subparagraph (A), the statutory counterpart provi-

sion, as we have previously interpreted it.”

243 Or App at 196 (citations omitted). The Court of Appeals

then observed that that was not the only permissible read-

ing of the additions and turned to the legislative history of

those amendments to confirm that the legislature had not

intended to narrow the meaning of “statutory counterpart.”

Id. at 196-97.

Between the 2007 amendments and Donovan, a

reasonable reader of ORS 813.010 or ORS 813.215 might

have drawn the same “first blush” conclusion as the Court

of Appeals and questioned whether Mersman and Rawleigh

remained good law. Those decisions were not clear, much

less definitive, indicators of what the phrase “statutory

counterpart” meant in 2010, when ORS 813.011 was sub-

mitted to the voters. We also observe that Mersman and

Rawleigh were decided within three years of ORS 813.011

being adopted. They are not, in other words, the type of

longstanding, settled precedent to which we might accord

greater weight as context.

The second problem with the state’s argument is that

prior constructions of statutory terms are only one source

of context that we consider when interpreting a statute.

Regardless of the significance accorded to those decisions of

the Court of Appeals, other context in this case outweighs

any conclusion that might be drawn from them. See State

v. Shaw, 338 Or 586, 604, 113 P3d 898 (2005) (declining to

34 State v. Guzman/Heckler

interpret a statute in accordance with a prior construction

because other context was more persuasive). Here, the inter-

pretation urged by the state conflicts with the canon of con-

sistent usage, the principle that, “in the absence of evidence

to the contrary, we ordinarily assume that the legislature

uses terms in related statutes consistently.” State v. Cloutier,

351 Or 68, 99, 261 P3d 1234 (2011); see also Village at Main

Street Phase II v. Dept. of Rev., 356 Or 164, 175, 339 P3d 428

(2014) (“the general assumption of consistency counsels us

to assume that the legislature intended the same word to

have the same meaning throughout related statutes unless

something in the text or context of the statute suggests a

contrary intention”).

That presumption is particularly strong here. The

term “statutory counterpart”—and the specific phrasing

used in ORS 813.011—appears in approximately a dozen

statutes pertaining to intoxicated driving.5 Those statutes

are interrelated. For example, ORS 813.011 elevates DUII to

a felony upon a third conviction, and ORS 809.235(1)(b)(A)(ii)

triggers a permanent license suspension upon a third con-

viction. Nearly all of those appearances of “statutory coun-

terpart” predate Mersman and Rawleigh—in some cases

by decades. The first use of “statutory counterpart” to refer

to convictions from other jurisdictions came in 1981, when

the term “statutory counterpart” was added to statutes per-

taining to Oregon’s DUII diversion program, where it dis-

qualified individuals with foreign DUII convictions from

eligibility. Former ORS 484.450(4)(a) (1981); Or Laws 1981,

ch 803, § 18. After that, “statutory counterpart” appears

to have become the legislature’s go-to terminology when it

wanted to count out-of-state intoxicated driving offenses for

a purpose relating to Oregon’s DUII statutes. Mersman and

Rawleigh would not—could not—inform our interpretation

5

See, e.g., ORS 163.118(1)(d)(A) (elevation of conduct to first-degree man-

slaughter); ORS 163.185(1)(d)(A) (elevation of conduct to first-degree assault);

ORS 809.235(1)(b)(A)(ii) (permanent revocation of driver’s license); ORS 809.730

(1)(a)(B) (forfeiture of motor vehicle); ORS 813.010(5)(a)(A)(ii) (elevation of DUII

to a felony); ORS 813.215(1)(a)(A)(ii) (disqualification from DUII diversion based

on pending charges); ORS 813.220(7)(a)(B) (disqualification from DUII diversion

based on subsequent charges or convictions); ORS 813.430(2)(b)(A)(ii) (increase

in length of driver’s license suspension); ORS 813.665(1)(a) (disqualification from

employment as ignition interlock device technician).

Cite as 366 Or 18 (2019) 35

of the many earlier appearances of “statutory counterpart”

in Oregon’s DUII statutes. Because the only reason the state

offers for the adoption of the “use, role, or characteristics”

approach is its appearance in Mersman and in Rawleigh, the

state’s argument is, in effect, that ORS 813.011 should mean

something different from nearly all other uses of “statutory

counterpart” in the context of DUII offenses. Given how the

relevant statutes fit together, it seems implausible that the

voters who adopted ORS 813.011 would have wanted its use

of “statutory counterpart” to take on a different meaning.

For those reasons, we reject the state’s argument

that Mersman and Rawleigh control the meaning of “stat-

utory counterpart” in ORS 813.011. The plain text of that

statute combined with other, more relevant context, indi-

cates that it requires close element matching between ORS

813.010 and a foreign offense.

E. Apprendi and Constitutional Avoidance

For the most part, defendants do not offer an argu-

ment that foreign statutory counterparts must have ele-

ments identical to or narrower than ORS 813.010 in order to

qualify. As we recognized in Carlton, close element matching

requires “elements that are the same as or nearly the same”

as the comparable Oregon offense. 361 Or at 43 (emphasis

added). Defendants do argue, however, that constitutional

avoidance weighs in favor of adopting a stricter approach.

Defendants point to Apprendi, 530 US at 490, which held

that, “[o]ther than the fact of a prior conviction, any fact that

increases the penalty for a crime beyond the prescribed stat-

utory maximum must be submitted to a jury, and proved

beyond a reasonable doubt.” And defendants observe that

the factual finding involved in ORS 813.011, whether a

defendant has two prior convictions under ORS 813.010 or its

statutory counterpart, is one that increases the maximum

punishment available for the offense. Because of Apprendi,

that inquiry, along with other uses of “statutory counter-

part” to increase maximum sentences, must be submitted to

a jury unless it falls within the prior conviction exception.6

6

In Guzman, the only of these cases to proceed to trial, the question of whether

Guzman had prior qualifying convictions was submitted to the jury—avoiding

36 State v. Guzman/Heckler

However, the close element matching approach

adopted by Carlton falls within that exception. The only

facts that must be found, to elevate a misdemeanor DUII to

a felony under ORS 813.011, concern which prior convictions

a defendant possesses, and the statutory elements of those

offenses that are conclusively established by the record of

conviction—not the conduct underlying that conviction. See

State v. Bray, 342 Or 711, 723, 160 P3d 983 (2007) (stating that

the prior conviction exception “includes only those facts that

the conviction itself or the judicial record conclusively estab-

lishes”). Whether those elements “are the same as or nearly

the same as the elements of” ORS 813.010(1), Carlton, 361 Or

at 43, is a legal question, not an additional factual inquiry.

As defendants observe, some federal sentencing

statutes apply a different, and stricter, legal test for which

prior offenses trigger additional sentencing consequences.

See Descamps v. United States, 570 US 254, 257, 133 S Ct

2276, 186 L Ed 2d 438 (2013) (explaining that a prior con-

viction triggers certain sentencing enhancements “only if

the statute’s elements are the same as, or narrower than,

those of the generic offense”). But Apprendi, which is a rule

about when factual questions must be submitted to a jury,

does not require a particular legal test for which convic-

tions trigger sentencing consequences. See James v. United

States, 550 US 192, 214 & n 8, 127 S Ct 1586, 167 L Ed 2d

532 (2007), overruled on other grounds by Johnson v. United

States, 576 US 591, 135 S Ct 2551, 192 L Ed 2d 569 (2015)

(rejecting an Apprendi challenge to a judicial inquiry into

whether an offense that was the subject of a prior convic-

tion “involves conduct that presents a serious potential risk

of physical injury to another” because that test required

“statutory interpretation, not judicial factfinding”). Because

close element matching, as articulated in Carlton, looks only

to the elements of a defendant’s prior convictions and does

not involve an additional factual inquiry, it falls into the

prior conviction exception. Apprendi does not offer a reason

to prefer a different approach.

any Apprendi issue even if the prior conviction exception did not apply. We do not

decide in this case whether ORS 813.011, or any other use of “statutory counter-

part,” permits or requires a different procedure.

Cite as 366 Or 18 (2019) 37

F. Close Element Matching When the Elements Are Nearly

the Same

Before we apply the close element matching approach

to these cases, we discuss a question left unanswered in

Carlton, but which is important here. As we explained in

Carlton, close element matching requires a foreign offense

to have “elements that are the same as or nearly the same

as the elements of” the Oregon crime to which it is com-

pared. Carlton, 361 Or at 43 (emphasis added). In Carlton,

we did not have occasion to discuss in depth how to deter-

mine when minor differences in the elements would not be

disqualifying. Yet Carlton introduced two important factors

to consider when evaluating a foreign offense with elements

broader than those of the Oregon offense to which it is being

compared, and those two factors are enough to resolve these

cases.7

In Carlton, we considered whether Cal Penal Code

§ 288(a) was “comparable” to the Oregon offense of first-

degree sexual abuse. We observed that Cal Penal Code

§ 288(a) overlapped with the Oregon offense of first-degree

sexual abuse under some circumstances, but most of its

applications did not involve that overlap: Oregon criminal-

ized physical contact with intimate parts of a child with sex-

ual intent; California’s statute applied to any contact with

a child with sexual intent. 361 Or at 44-45. We emphasized

that the Oregon offense was “significantly narrower. It also

prohibits sexually motivated conduct, but it proscribes only

a limited category of sexually motivated conduct.” Id. at 45.

We therefore concluded that Cal Penal Code § 288(a) did not

closely match the elements of first-degree sex abuse. Id. at 45.

Thus, the first factor to consider is how the addi-

tional breadth of the foreign statute compares with the over-

all scope of the relevant Oregon statute, in this case ORS

813.010. If the elements of a foreign offense extend to con-

duct not covered by ORS 813.010 only to an insignificant

degree, then it makes sense to refer to the elements as nearly

the same and to view the foreign offense as a statutory

7

When a foreign offense differs from an Oregon offense only because it is

narrower, that difference will not preclude the offense from being a close element

match.

38 State v. Guzman/Heckler

counterpart. By contrast, where, as in Carlton, the Oregon

offense reaches only a subset of the conduct criminalized by

the foreign offense, the difference is likely to preclude the

foreign offense from qualifying as a close element match.

The second factor relates not to the breadth of the

additional conduct proscribed by the foreign statute but to its

nature. In Carlton, when comparing Cal Penal Code § 288(a)

to first-degree sex abuse, we emphasized the nature of the

conduct contained within the California statute’s greater

breadth:

“[T]he California offense has only two conduct elements and

may be proved by any touching of a child, even outwardly

innocent touching, if the touch is sexually motivated. That

means that the California offense could be committed simply

by placing an arm around a child’s shoulder, patting the top

of a child’s head, or helping a child put on a pair of shoes,

if the physical contact—though experienced by the child as

innocent—is made with a sexual purpose.”

Carlton, 361 Or at 44 (internal citation removed). As that

passage indicates, when the foreign offense reaches con-

duct that is less culpable than that involved in the Oregon

offense, then that is an indication that the foreign offense is

not a statutory counterpart. Culpability, for this purpose, is

determined by examining how the conduct is treated under

Oregon law. A difference in statutory elements that is con-

fined to conduct that, although not proscribed in the same

statute, is nevertheless proscribed and treated with the

same or greater level of seriousness in Oregon is not likely

to be a difference that will preclude the foreign offense from

being a close element match. In such cases, the concern that

giving legal effect to a foreign offense will “adopt another

state’s policy by reference, without the attendant delibera-

tive safeguards that Oregon’s own legislative processes pre-

scribe,” Carlton, 361 Or at 42, is lessened.

III. APPLICATION

A. Guzman and Kan Stat Ann § 8-1567(a)

With those principles in mind, we turn to the appli-

cation of the close element matching standard to the two

foreign statutes at issue here, beginning with defendant

Cite as 366 Or 18 (2019) 39

Guzman’s case.8 Guzman focuses on two differences between

Kan Stat Ann § 8-1567 and ORS 813.010. First, he observes

that Kan Stat Ann § 8-1567(a) can be satisfied by an

“attempt.” Second, he argues that, Kan Stat Ann § 8-1567

(a)(2) allows the state to obtain a conviction by showing

that “alcohol concentration in the person’s blood or breath,

as measured within three hours of the time of operating or

attempting to operate a vehicle, is 0.08 or more.” As a result,

Guzman contends, if a sober individual tries to start his or

her car, gives up, and subsequently gets drunk, he or she

has violated Kan Stat Ann § 8-1567(a)(2).

In Carlton, we began our close element matching

analysis by determining what the elements of the relevant

offenses were. 361 Or at 44. We do the same here. We then

address whether Guzman is correct that Kan Stat Ann

§ 8-1567 is broader than ORS 813.010 and, finally, whether

any overbreadth disqualifies the foreign statute from being

a statutory counterpart.

ORS 813.010(1) provides:

“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 person as shown by chemical analysis of

the breath or blood of the person made under ORS 813.100,

813.140 or 813.150;

“(b) Is under the influence of intoxicating liquor, canna-

bis, a controlled substance or an inhalant; or

“(c) Is under the influence of any combination of intox-

icating liquor, cannabis, a controlled substance and an

inhalant.”

We held in State v. King, 316 Or 437, 852 P2d 190

(1993), overruled in part on other grounds by Farmers Ins.

Co. v. Mowry, 350 Or 686, 261 P3d 1 (2011), that the three

8

In this court, Guzman assigns error only to the trial court’s denial of his

pretrial motion to exclude his prior Kansas conviction on the ground that it was

not a statutory counterpart to ORS 813.010. Whether that conviction is a statu-

tory counterpart is a question of law, so we review the trial court’s determination

for legal error.

40 State v. Guzman/Heckler

ways of proving intoxication listed in ORS 813.010(1)(a) - (c)

are not alternative elements defining separate offenses but,

rather, “three sets of circumstances, any or all of which go

to prove a single essential element (being under the influ-

ence of intoxicants).” Id. at 442. As a result, as is relevant

here, the offense of DUII “has two elements. A conviction

may result if a jury agrees beyond a reasonable doubt that

the accused (1) drove a motor vehicle (2) while under the

influence of intoxicants.” Id. at 446.9

In examining foreign offenses, it is particularly

important to be clear on the elements of the offense. As we

have made clear in interpreting our own statutes, the text

of a criminal statute, even if contained in a single section

or paragraph, may set forth alternative elements, thereby

creating multiple “separate offenses.” King, 316 Or at

441-42. Conversely, as in King itself, a list joined by the

word “or” may simply set forth different methods of proving

a single element. Id. at 444; see also State v. Pipkin, 354 Or

513, 523-24, 316 P3d 255 (2013) (so holding regarding the

trespass element of Oregon’s burglary statute).

It bears emphasis that what we are concerned with

in this context are the statutory elements of the offense, not

the specifics of a defendant’s misconduct. Facts that are not

elements, even if charged and admitted, are irrelevant to the

“statutory counterpart” analysis. See, e.g., Mathis v. United

States, ___ US ___, ___, 136 S Ct 2243, 2251-53, 195 L Ed

2d 604 (2016) (so holding in the context of federal conviction-

counting statutes and observing practical and constitu-

tional difficulties that might arise were nonelement facts to

be taken into consideration). Conversely, however, where a

law sets forth alternative elements, effectively defining mul-

tiple offenses, even if those offenses are located within the

same subsection or referred to by the same label, the record

of conviction may provide a basis for “determin[ing] what

crime, with what elements, a defendant was convicted of.”

Mathis, ___ US at ___, 136 S Ct at 2249.

9

ORS 813.010(4) provides that “the offense described in this section * * * is

applicable upon any premises open to the public,” but that provision is not at issue

in this case.

Cite as 366 Or 18 (2019) 41

With that in mind, we turn to Kan Stat Ann

§ 8-1567:10

“(a) Driving under the influence is operating or attempt-

ing to operate any vehicle within this state while:

“(1) The alcohol concentration in the person’s blood or

breath as shown by any competent evidence, including

other competent evidence, as defined in K.S.A. 8-1013(f)(1),

and amendments thereto, is 0.08 or more;

“(2) the alcohol concentration in the person’s blood or

breath, as measured within three hours of the time of oper-

ating or attempting to operate a vehicle, is 0.08 or more;

“(3) under the influence of alcohol to a degree that ren-

ders the person incapable of safely driving a vehicle;

“(4) under the influence of any drug or combination

of drugs to a degree that renders the person incapable of

safely driving a vehicle; or

“(5) under the influence of a combination of alcohol and

any drug or drugs to a degree that renders the person inca-

pable of safely driving a vehicle.”

The Kansas statute does not set forth alternative

elements defining multiple crimes. The Kansas Supreme

Court has held that

“[t]he crime of driving under the influence requires two pri-

mary elements—that is, driving and simultaneously being

under the influence. The driving element can be estab-

lished through proof that the defendant either ‘operated’

or ‘attempted to operate’ the vehicle, while the ‘under the

influence’ requirement can be established through proof of

any of the factual circumstances described in subsections

(a)(1) through (a)(5).”

State v. Ahrens, 296 Kan 151, 160, 290 P3d 629, 635 (2012).

As a result, the terms “operating or attempting to oper-

ate” merely “ ‘describe the factual circumstances in which

a material element’—i.e., driving—‘may be proven.’ ” Id. at

160, 290 P3d at 635 (quoting State v. Brown, 295 Kan 181,

196-97, 284 P3d 977, 990 (2012)). The same appears to be

10

We quote the current version of the statute, as there has been no pertinent

change since the time of Guzman’s conviction.

42 State v. Guzman/Heckler

true of the alternative methods of proving the intoxication

element. Therefore, it does not matter which of those factual

circumstances was present in Guzman’s case, even if that

information could be discerned from the record of convic-

tion. Kan Stat Ann § 8-1567(a) defines a single crime; the

only question is whether that crime has the same or nearly

the same elements as ORS 813.010.

In this case, our analysis begins and ends with the

first difference that Guzman points to, that Kan Stat Ann

§ 8-1567(a) prohibits “operating or attempting to operate

any vehicle” while intoxicated. By contrast, ORS 813.010(1)

applies only if a “person drives a vehicle.” We have not

weighed in on what it means to “drive” a vehicle, but the

Court of Appeals has held for close to 50 years that driv-

ing, for the purposes of DUII, requires putting a vehicle into

motion. See State v. Bilsborrow, 230 Or App 413, 417, 215

P3d 914 (2009); State v. Martinelli, 6 Or App 182, 485 P2d

647 (1971). We accept that construction for the purposes of

this case, as neither party has argued that we should give

the term a different meaning.

The Kansas Supreme Court has interpreted “oper-

ating” to require movement of the vehicle. State v. Kendall,

274 Kan 1003, 1008, 58 P3d 660, 669 (2002). We see no differ-

ence, therefore, between the Kansas Supreme Court’s inter-

pretation of “operating” and the Oregon Court of Appeals’

interpretation of “drives.” Guzman’s argument, however,

centers on the term “attempting to operate.” And we agree

with Guzman that, by extending to attempted operation,

Kan Stat Ann § 8-1567(a) criminalizes conduct that ORS

813.010(1) does not. For example, in State v. Darrow, 304

Kan 710, 374 P3d 673 (2016), the defendant had been found

by an officer in the driver’s seat of a car with its engine run-

ning and, upon waking, had “fumbled with the gear shift

lever.” Id. at 718, 374 P3d at 679. The Kansas Supreme

Court, viewing the facts in the light most favorable to the

state, upheld the conviction:

“[T]he State can point to the following facts: the vehicle’s

engine was running, i.e., the vehicle was ready to move

upon the engagement of the transmission; [the defendant]

had previously moved into the driver’s seat, i.e., she had

intentionally placed herself in a position to manipulate the

Cite as 366 Or 18 (2019) 43

controls necessary to move the vehicle and may have been

the one to start the engine; and, upon being awakened,

[the defendant] reached down and fumbled with the gear

shift lever, i.e., she made an overt act toward engaging the

transmission, which was arguably the last act needed to

legally ‘drive’ the vehicle.”

Id. at 718-19, 374 P3d at 679. And, in a somewhat broader

application of “attempting to operate,” the Kansas Court

of Appeals upheld a conviction where the defendant tried,

unsuccessfully, to start a vehicle with the key in the igni-

tion, while intending to move the car. State v. Adame, 45

Kan App 2d 1124, 1129, 257 P3d 1266, 1270 (2011).

We therefore consider whether that additional breadth

disqualifies Kan Stat Ann § 8-1567(a) from being considered

a statutory counterpart to ORS 813.010. Weighing the two

factors discussed above, we agree with defendant that Kan

Stat Ann § 8-1567(a) is not a statutory counterpart to ORS

813.010.

The first factor that we consider is the degree to

which the scope of Kan Stat Ann § 8-1567(a) diverges from

ORS 813.010. Kan Stat Ann § 8-1567(a) extends to a variety

of factual circumstances where an individual does not move

a vehicle at all, including situations where a car’s engine has

not been turned on, as in Adame. That difference in scope

is not on the scale that we found disqualifying in Carlton,

but the first factor nevertheless weighs against concluding

that the elements of Kan Stat Ann § 8-1567(a) are nearly the

same as ORS 813.010(1).

We turn to the second factor, whether the additional

conduct included in Kan Stat Ann § 8-1567(a) is treated

as similarly culpable under Oregon law. Most, and possi-

bly all, of the “attempt” conduct included in Kan Stat Ann

§ 8-1567(a) is likely criminalized in Oregon as attempted

DUII. See ORS 161.405(1) (“A person is guilty of an attempt

to commit a crime when the person intentionally engages in

conduct which constitutes a substantial step toward com-

mission of the crime.”). But in Oregon, an attempt is not

treated as equally culpable as the completed offense, see

ORS 161.405(2) (classifying attempts as one grade lower

than the completed offense), and ORS 813.011 does not make

44 State v. Guzman/Heckler

a prior conviction for attempted DUII a basis for elevating a

DUII conviction to a felony. Because the additional breadth

of the driving element of Kan Stat Ann § 8-1567(a) covers

exclusively, or nearly exclusively, conduct that is criminal

in Oregon, but that Oregon law does not deem equally cul-

pable, the second factor weighs, albeit only weakly, against

treating Kan Stat Ann § 8-1567(a) as a statutory counter-

part to ORS 813.010.

This is a close case, but considering the two factors

together, we conclude that the inclusion of “attempting to

operate” precludes Kan Stat Ann § 8-1567(a) from being

considered a statutory counterpart to ORS 813.010(1). The

trial court erred in holding that Kan Stat Ann § 8-1567(a)

was a statutory counterpart to ORS 813.010 and therefore

erred in denying Guzman’s motion to exclude that convic-

tion. Guzman asks this court to reverse his conviction for

felony DUII and to remand his case to the trial court for

entry of a conviction for misdemeanor DUII and for resen-

tencing. Because Guzman has agreed to that disposition,

and because the state has not requested an alternative dis-

position, we conclude that Guzman’s requested disposition is

appropriate in this case.

B. Heckler and Colo Rev Stat § 42-4-1301(1)(b)

We now turn to defendant Heckler’s convictions

for violation of Colo Rev Stat § 42-4-1301(1)(b) in 2006 and

2010. In both years, the pertinent text was substantially the

same, so we quote only the text of the 2010 statute:

“(1)(a) It is a misdemeanor for any person who is under

the influence of alcohol or one or more drugs, or a combina-

tion of both alcohol and one or more drugs, to drive a motor

vehicle or vehicle.

“(b) It is a misdemeanor for any person who is impaired

by alcohol or by one or more drugs, or by a combination of

alcohol and one or more drugs, to drive a motor vehicle or

vehicle.

“* * * * *

“(f) ‘Driving under the influence’ means driving a motor

vehicle or vehicle when a person has consumed alcohol or

Cite as 366 Or 18 (2019) 45

one or more drugs, or a combination of alcohol and one or

more drugs, that affects the person to a degree that the

person is substantially incapable, either mentally or phys-

ically, or both mentally and physically, to exercise clear

judgment, sufficient physical control, or due care in the safe

operation of a vehicle.

“(g) ‘Driving while ability impaired’ means driving a

motor vehicle or vehicle when a person has consumed alco-

hol or one or more drugs, or a combination of both alcohol

and one or more drugs, that affects the person to the slight-

est degree so that the person is less able than the person

ordinarily would have been, either mentally or physically,

or both mentally and physically, to exercise clear judgment,

sufficient physical control, or due care in the safe operation

of a vehicle.”

Colo Rev Stat § 42-4-1301 (2010).

Driving while ability impaired (DWAI), defined by

Colo Rev Stat § 42-4-1301(1)(b), is a separate offense from

the crime defined by Colo Rev Stat § 42-4-1301(1)(a). See

Colo Rev Stat § 42-4-1307(3) - (4) (defining different pen-

alties for the two offenses); Byrd v. Stavely, 113 P3d 1273,

1278 (Colo App 2005) (recognizing that DWAI is a separate

offense with lesser penalties). There is no dispute that both

of Heckler’s convictions were for DWAI.

Heckler’s argument that DWAI is not a statutory

counterpart to ORS 813.010 focuses on a single element:

impairment. For that reason, we address only that ele-

ment and do not discuss other possible differences between

the elements of ORS 813.010 and Colorado DWAI. The state

responds to that argument by contending that DWAI has a

very similar impairment element to ORS 813.010 and is, for

that reason, a statutory counterpart.

Under Colorado law, the impairment element is sat-

isfied when a person is

“affect[ed] * * * to the slightest degree so that the person

is less able than the person ordinarily would have been,

either mentally or physically, or both mentally and physi-

cally, to exercise clear judgment, sufficient physical control,

or due care in the safe operation of a vehicle.”

46 State v. Guzman/Heckler

Colo Rev Stat § 42-4-1301(1)(g) (2010).11 By contrast, the

impairment element of ORS 813.010(1) can be proved either

by a blood alcohol content (BAC) level of .08 percent or by

showing “that the driver was impaired to a perceptible

degree while driving.” State v. Mazzola, 356 Or 804, 813,

345 P3d 424 (2015). The “perceptible degree” standard has

been part of our law for close to a century. See State v. Noble,

119 Or 674, 678, 250 P 833 (1926); State v. Robinson, 235 Or

524, 531, 385 P2d 754 (1963).

The state argues that there is little difference

between DWAI and DUII under ORS 813.010. We disagree.

Colorado’s DWAI law criminalizes driving even while imper-

ceptibly intoxicated, provided that the individual’s mental

or physical abilities relating to driving are affected “to the

slightest degree.” Colo Rev Stat § 42-4-1301(1)(g) (2010).

That conduct falls below the “perceptible degree” of intoxica-

tion threshold set by ORS 813.010(1). To be sure, impercepti-

ble intoxication can also violate ORS 813.010(1)(a), but only

when the person’s BAC at the time of driving was 0.08 or

higher. DWAI, under Colorado law, criminalizes lower levels

of imperceptible intoxication because it extends to even the

“slightest degree” of impairment.12

Guided by the two factors discussed above, we con-

clude that the degree to which Colorado’s DWAI offense

includes conduct not captured by ORS 813.010 is sufficiently

11

Colorado courts have not offered an exegesis of Colo Rev Stat § 42-4-1301

(1)(b), although it is clear that “DWAI has a lower proof threshold than DUI[.]”

People v. Grassi, 364 P3d 1144, 1148 (Colo App 2011), aff’d, 320 P3d 332 (Colo

2014). But Colorado courts treat statutory text as the most important consider-

ation when interpreting a law. See People v. Cross, 127 P3d 71, 73 (Colo 2006) (“We

look first to the plain text of a statute, reject interpretations that render words

or phrases superfluous, and harmonize potentially conflicting provisions, if pos-

sible.”). The plain text of Colo Rev Stat § 42-4-1301(1)(g) is sufficient to establish

the scope of DWAI under Colorado law.

12

It could be argued that there is little practical difference between the two

statutes because DWAI convictions are likely to occur only when the intoxica-

tion is perceptible. That argument is unpersuasive for two reasons. First, what

matters is the scope of the elements and their differences as a legal matter, not

the reality of how enforcement plays out in Colorado (much less our uninformed

guess at it). In addition, evidence from observation is hardly the only way to

prove impairment. To that end, Colorado law specifically provides for DWAI to

be proven by breath or blood tests by creating a presumption that an individual

is ability impaired when his or her BAC is between .05 and .08 percent. Colo Rev

Stat § 42-4-1301(6)(a)(II).

Cite as 366 Or 18 (2019) 47

significant to prevent it from qualifying as a statutory coun-

terpart. Colo Rev Stat § 42-4-1301(1)(b) extends to drivers

who are slightly and imperceptibly impaired, a class of

persons that could be significant in size. The first factor

therefore weighs against concluding that it is a statutory

counterpart to ORS 813.010. Turning to the second factor,

none of that additional conduct is criminal in Oregon. Under

Oregon law, the “perceptible degree” standard draws a line

between slight impairment that does not violate the law and

the more significant impairment that does. Therefore, the

second factor also weighs against treating Colo Rev Stat

§ 42-4-1301(1)(b) as a statutory counterpart to ORS 813.010.

While we do not hold that every foreign offense set-

ting a lower bar for intoxication than ORS 813.010(1) is dis-

qualified from being considered a statutory counterpart, we

hold that the Colorado DWAI statute sets the bar low enough

that its elements are not a close match. Like the California

statute considered in Carlton, Colo Rev Stat § 42-4-1301

(1)(b) criminalizes conduct that is legal in Oregon in ways

that are sufficiently significant that we cannot consider it

a statutory counterpart. Accordingly, the trial court erred

in denying Heckler’s motion to exclude his prior convictions.

He is entitled, as he requests, to have the case remanded to

the trial court so that he may withdraw his conditional plea.

See ORS 135.335(3) (“A defendant who finally prevails on

appeal may withdraw the plea.”).

IV. CONCLUSION

We hold that, in determining which foreign offenses

qualify as statutory counterparts to ORS 813.010, the appro-

priate inquiry is close element matching. We conclude that

Guzman’s prior Kansas conviction and Heckler’s two prior

Colorado convictions were for offenses with elements that

are not “the same as or nearly the same,” Carlton, 361 Or

at 43, as those of ORS 813.010(1). Defendants’ prior foreign

convictions are, for that reason, not convictions under statu-

tory counterparts to ORS 813.010.

In State v. Guzman, S066328, the decision of the

Court of Appeals is reversed. The judgment of the circuit

court is reversed, and the case is remanded to the circuit

48 State v. Guzman/Heckler

court for further proceedings. In State v. Heckler, S066373,

the decision of the Court of Appeals is reversed. The judgment

of the circuit court is reversed, and the case is remanded to

the circuit court for further proceedings.