State v. Benoit

302 October 3, 2013 No. 48

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Relator,

v.

LAURIE ANN BENOIT,

Defendant-Adverse Party.

(CC 111051946; SC S060858)

En Banc

On alternative writ of mandamus order dated January 29,

2013.*

Argued and submitted June 5, 2013.

Jeremy Rice, Assistant Attorney General, Salem, argued

the cause for relator State of Oregon. With him on the brief

were Ellen F. Rosenblum, Attorney General, and Anna M.

Joyce, Solicitor General.

Cody Hoesly, Larkins Vacura LLP, Portland, Cooperating

Attorney for amicus curiae ACLU Foundation of Oregon, Inc.,

argued the cause for adverse party. With him on the amicus

brief was Kevin Diaz, Legal Director, ACLU Foundation of

Oregon, Inc. Bruce Tarbox, Bruce Tarbox PC, Oregon City,

attorney for adverse party joined this brief.

Bronson James, Portland, filed a brief on behalf of amicus

curiae, Oregon Criminal Defense Lawyers Association.

BREWER, J.

The petition for writ of mandamus is dismissed.

______________

*  On petition for alternative writ of mandamus from an order of Multnomah

County Circuit Court, Cheryl Albrecht, Judge.

Cite as 354 Or 302 (2013) 303

In this mandamus proceeding the issue presented is whether the state’s

election under ORS 161.566(1) to “treat” the misdemeanor offense of criminal

trespass as a violation effectively decriminalized that offense and thereby deprived

defendant of the right to a jury trial afforded her under Article I, section 11, of the

Oregon Constitution. Defendant was arrested and charged with misdemeanor

criminal trespass. At her arraignment, the state elected to treat the charge as

a violation pursuant to ORS 161.566(1). Following that election, defendant filed

a motion for a jury trial. The trial court granted that motion, after concluding

that the violation charge against defendant qualified as a “criminal prosecution”

under Article I, section 11. The state filed a petition for a writ of mandamus in the

Supreme Court on that issue. Held: Article I, section 11, applies to all “criminal

prosecutions” and the Supreme Court found no textual, historical, or logical

support for the state’s proposition that the proceeding against defendant, which

began as a criminal proceeding with her arrest, booking, and incarceration for

a crime could, in the absence of her consent, be transformed without further

constitutional consequence into a noncriminal proceeding under ORS 161.566.

Accordingly, because the circuit court had correctly granted defendant’s motion

for a jury trial, the Supreme Court dismissed the state’s petition for a writ of

mandamus.

The petition for writ of mandamus is dismissed.

304 State v. Benoit

BREWER, J.

The right to a jury trial under Article I, section 11,

of the Oregon Constitution, extends to “all criminal prose-

cutions.”1 The issue in this mandamus proceeding is whether

the state’s election under ORS 161.566(1) 2 to “treat” the mis-

demeanor offense of criminal trespass as a violation effec-

tively decriminalized that offense and thereby deprived defen-

dant of the jury trial right afforded her under Article I,

section 11.3

On October 11, 2011, defendant was arrested, hand-

cuffed, booked, and lodged in jail along with other 49 other

“Occupy Portland” protesters. She was then charged with

second-degree criminal trespass, a Class C misdemeanor. See

ORS 164.243 (so providing). At defendant’s arraignment, the

state elected to treat that charge as a violation pursuant to

ORS 161.566(1). Under ORS 153.076, violation proceedings

must be tried to the court, and certain other protections for

criminal defendants are unavailable.4 After the state made

its election, defendant filed a motion for a trial by jury. Rely-

ing on the Court of Appeals’ recent decision in State v.

Fuller, 252 Or App 391, 287 P3d 1263 (2012) (holding that

1

Article I, section 11, of the Oregon Constitution, provides, in part:

“In all criminal prosecutions, the accused shall have the right to public trial

by an impartial jury in the county in which the offense shall have been

committed[.]”

2

The 2009 version of ORS 161.566 was in effect when defendant allegedly

committed her offense. However, because the 2011 version of the statute is

identical in most material respects to the 2009 version, for convenience, we refer

to the current version of the statute in this opinion unless otherwise indicated. We

set out relevant text of ORS 161.566 later in this opinion.

3

Defendant has not appeared in this mandamus proceeding. However, amici

ACLU Foundation of Oregon, Inc., and the Oregon Criminal Defense Lawyers

Association have filed briefs on the merits in support of her position. In addition,

counsel for amicus ACLU Foundation of Oregon, Inc., was granted permission to

argue the cause in support of defendant’s position.

4

ORS 153.076 provides, in part:

“(1)  Violation proceedings shall be tried to the court sitting without jury.

* * *.

“(2)  The state, municipality or political subdivision shall have the burden

of proving the charged violation by a preponderance of the evidence.

“* * * * *

“(5)  Defense counsel shall not be provided at public expense in any pro-

ceeding in which only violations are charged.”

Cite as 354 Or 302 (2013) 305

the defendant was entitled to a jury trial on charges of third-

degree theft, notwithstanding the prosecutor’s election to

treat the offense as a violation), the trial court concluded

that the violation charge against defendant qualified as a

criminal prosecution under Article I, section 11. The trial

court therefore granted defendant’s motion for trial by jury,

and the state filed a petition for a writ of mandamus in this

court on that issue. For the reasons explained below, we

agree with the trial court that defendant is entitled to a jury

trial on the violation charge, although our reasoning differs

in some respects from that of the Court of Appeals in Fuller

and the trial court here. Accordingly, we dismiss the state’s

petition.

For various reasons, including budgetary constraints,

legislatures around the country have relatively recently

begun to treat certain offenses as violations. In Oregon,

the legislature created an offense classification for viola-

tions in 1971, as part of a general revision to the criminal

code. Or Laws 1971, ch 743, § 65; ORS 161.505 (“offense” is

either a “crime” or a “violation”). Under that new classifica-

tion, a violation was punishable by only a fine, forfeiture,

or other civil penalty, and offenses that were either specif-

ically designated as such or were punishable by only fines,

forfeitures, or other civil penalties were to be considered vio-

lations. Or Laws 1971, ch 743, § 71. In 1987, the legislature

enacted a statute giving trial courts the option to treat any

misdemeanor charge except a misdemeanor created under

the Oregon Vehicle Code as a violation if, before the defen-

dant entered a plea to the charge, the court declared that

it intended to do so and the state did not object. Former

ORS 161.565(2) (1987). In 1989, the legislature altered the

statutory scheme to provide that all misdemeanor charges

would proceed as violations unless, before the defendant

entered a plea to the charge, the district attorney declared

on the record that the case would proceed as a misdemeanor.

Former ORS 161.565(2) (1989). Finally, in 1999, the legis-

lature repealed former ORS 161.565 and replaced it with

ORS 161.566, which remains in effect today. Or Laws 1999,

ch 1051, §§ 47, 49. In doing so, the legislature established

a scheme in which misdemeanors now are tried as crimes

rather than as violations, unless the state elects otherwise.

306 State v. Benoit

Under ORS 161.566(1), subject to exceptions not per-

tinent here, “a prosecuting attorney may elect to treat any

misdemeanor as a Class A violation.”5 The state merely

needs to make that election by the time of the defendant’s

first appearance. The violation is then prosecuted without

a jury or appointed counsel, the standard of proof is by a

preponderance of the evidence, and various other rights of

criminal defendants are eliminated. See ORS 153.076(1), (2),

and (5) (setting out procedures for trial of violations). Thus,

defendants in violation proceedings lose certain procedural

safeguards against the risk of erroneous conviction. However,

when a misdemeanor is treated as a violation, a conviction

cannot lead to incarceration. See ORS 153.090 (setting out

possible contents of judgments in violation proceedings).

The question in this mandamus proceeding is

whether, notwithstanding the prosecutor’s election to treat

the misdemeanor offense of second-degree criminal trespass

as a violation, defendant was entitled to a jury trial in this

case. As an initial matter, we observe that, as a result of the

prosecutor’s election, defendant is not entitled to a jury trial

under any statute. Although ORS 136.001(1) provides that

defendants in “criminal” prosecutions “have the right to

public trial by an impartial jury,” ORS 153.030(1) specifies

that “[t]he procedures provided for in [ORS chapter 153]

apply” to the prosecution of all violations described in ORS

153.008. ORS chapter 153, as we have noted, eliminates

trial by jury and certain other rights of criminal defendants

in violation proceedings, and ORS 153.008(1)(d), in turn,

defines covered violations to include cases in which the

prosecuting attorney has elected to treat an offense as a

violation under ORS 161.566. Thus, notwithstanding that

defendant initially was arrested for and charged with com-

mitting a misdemeanor offense, the prosecutor’s election to

treat that offense as a violation means that, under the appli-

cable statutes, defendant is not entitled to a jury trial.

5

ORS 161.566(1) provides:

“(1) Except as provided in subsection (4) of this section, a prosecuting

attorney may elect to treat any misdemeanor as a Class A violation. The

election must be made by the prosecuting attorney orally at the time of the

first appearance of the defendant or in writing filed on or before the time

scheduled for the first appearance of the defendant. If no election is made

within the time allowed, the case shall proceed as a misdemeanor.”

Cite as 354 Or 302 (2013) 307

ORS 153.005(4) does not compel a different conclu-

sion. That provision defines a “violation proceeding” as a pro-

ceeding initiated “by issuance of a citation,” which a “reduced”

misdemeanor prosecution is not. As explained above, how-

ever, ORS 153.030 declares that the procedures set out in

chapter 153 apply to all violations, including violations

reduced from misdemeanors pursuant to ORS 161.566. That

is, ORS 153.030 expressly incorporates all procedures from

chapter 153—including those found in ORS 153.076—into

proceedings that involve “reduced” misdemeanors. Thus,

ORS 153.030 requires the application of ORS 153.076 in this

case.

We turn, then, to consider whether the Oregon

Constitution permits defendant to be deprived of a jury trial

in this case. As noted, Article I, section 11, provides, in part,

that, “[i]n all criminal prosecutions, the accused shall have

the right to public trial by an impartial jury in the county

in which the offense shall have been committed.” Under

Article I, section 11, whether a proceeding is a “criminal prose-

cution” is key to determining whether a jury trial and the

other protections that Article I, section 11, affords defendants

are required.

This court addressed the issue of what constitutes

a “criminal prosecution” for purposes of the jury trial right

in Article I, section 11, in Brown v. Multnomah County Dist.

Court, 280 Or 95, 570 P2d 52 (1977). In that case, the defendant

had been charged with a first offense of driving under the

influence of intoxicants (DUII), which the legislature had

designated as a “traffic infraction” rather than a “traffic

crime.” Under then-applicable statutes, defendants being

tried for traffic infractions did not, among other things, have

the right to appointed counsel, the right to a jury trial, or

the right to have the charged offense proved beyond a rea-

sonable doubt. The issue before the court in Brown was

whether, despite the legislature’s effort to decriminalize a first

DUII offense, that offense nonetheless remained a “criminal

prosecution” for purposes of Article I, section 11. If so, then

the offense could not be tried without the constitutional safe-

guards guaranteed to defendants in criminal prosecutions.

308 State v. Benoit

In deciding the issue, the court began by observing

that there is no easy test for determining whether a pro-

ceeding to impose a sanction is a “criminal prosecution”

within the meaning of Article I, section 11. The court stated

that the legislature’s treatment of conduct as a criminal

offense is sufficient to establish that it is a criminal offense

for constitutional purposes, but the converse is not true:

“[I]t does not follow that a law can avoid [the attachment of

constitutional consequences] simply by avoiding the term

‘criminal’ in defining the conduct to be penalized.”

Brown, 280 Or at 102. Then, from a review of useful law

review articles, the court developed a list of factors that have

been used to determine whether an ostensibly civil penalty

proceeding remains a “criminal prosecution” for constitu-

tional purposes.6

The factors that the court identified are (1) the

type of offense, including, for example, whether the offense

was a crime at common law, or whether it involves tradi-

tional elements of mens rea or a lower degree of culpability;

(2) the penalty incurred, and, specifically, whether there

is the potential for imprisonment or a heavy fine; (3) col-

lateral consequences, such as, in Brown, the revocation or

suspension of a driver license; (4) punitive significance of

the prosecution, that is, whether a judgment is stigmatizing

and condemnatory; and (5) the role, if any, of pretrial arrest

and detention. Id. at 102-09. The court stated, further, that

“[a]ll [those factors] are relevant, but none is conclusive” in

reaching the “ultimate determination” whether a proceeding

is a “criminal prosecution” for constitutional purposes. Id.

at 102. After considering those factors, the court in Brown

concluded that the first DUII offense retained “too many

penal characteristics” not to be a criminal prosecution for

purposes of Article I, section 11. Id. at 109-11.

6

We note that the court in Brown did not purport to derive those factors from

the text or context of Article I, section 11, itself. Brown was decided before this court

established its methodology for interpreting original constitutional provisions such

as Article I, section 11, in Priest v. Pearce, 314 Or 411, 415-16, 840 P2d 65 (1992).

Under Priest, to determine the meaning of a constitutional provision, the court

examines the constitutional text in its context, then the historical circumstances of

the adoption of the provision, and, finally, the case law construing it. Neither party

has asked us to reconsider Brown; accordingly, we continue to apply the Brown

factors in evaluating whether a proceeding is a “criminal prosecution” for purposes

of Article I, section 11.

Cite as 354 Or 302 (2013) 309

The state urges that the second factor that the court

identified in Brown—the potential penalty arising from a

conviction—is paramount and that it is dispositive in this

case. The state argues that this court has long recognized

that Article I, section 11, does not apply to “petty,” noncrimi-

nal offenses. See, e.g., Wong v. City of Astoria, 13 Or 538,

545, 11 P 295 (1886) (enforcement of a penalty—a fine—for

violating a city ordinance against licentiousness is not a

criminal prosecution, and the constitution does not require

jury trial); Cranor v. City of Albany, 43 Or 144, 148, 71 P 1042

(1903) (constitutional right to jury trial “generally regarded

as having no application to the prosecution of minor and

trivial offenses before justices and police magistrates, as such

offenses were summarily punished at common law”). The

state asserts that this court in Brown emphasized that the

potential penalty arising from a conviction is “the single most

important criterion” for assessing whether a jury trial is

required, and that the other factors are less important. 280

Or at 103. That is so, the state contends, because a criminal

prosecution is, at its core, merely a “proceeding to impose

a criminal punishment,” State v. Selness, 334 Or 515, 535,

54 P3d 1025 (2002), and the purpose of the jury trial right

is to prevent the unjust imposition of such a punishment,

Apodaca v. Oregon, 406 US 404, 410, 92 S Ct 1628, 32 L Ed 2d

184 (1972). Thus, according to the state, when a proceeding

presents no risk of incarceration or a severe financial

penalty, the constitutional jury trial right is not implicated.

The state acknowledges that the other Brown factors might

carry some weight in a particular case, but, it argues, a

proceeding that does not present any possibility of a criminal

penalty is presumptively noncriminal.

In this case, the state observes, defendant could not

be incarcerated on a violation conviction for second-degree

criminal trespass,7 and the maximum fine that the trial

court could impose for a violation conviction of that offense

is $1,250. ORS 161.566(2) (2009) (fine may not exceed the

amount provided in ORS 161.635); 8 ORS 161.635 (maximum

7

A person convicted of a Class C misdemeanor, by contrast, is subject to a

possible term of imprisonment of 30 days. ORS 161.615.

8

ORS 161.566(2) (2009) was amended in 2011 to establish a minimum fine for

a violation conviction, Or Laws 2011, ch 597, § 16, and again in 2012 to effectively

310 State v. Benoit

fine for Class C misdemeanor is $1,250). The state notes

that the court stated in Brown that “a large fine may be as

severe, in practical terms, as a short imprisonment, and so

strikingly severe as to carry the same punitive significance.”

280 Or at 104. But, in this case, the state contends, a fine of

$1,250 is not shocking or disproportionate, nor is it so severe

as to approximate the loss of liberty created by imprisonment.

Therefore, the state argues, application of the “penalty” factor

establishes that a jury trial was not constitutionally required

in this case.

The state also argues that none of the other Brown

factors dictate a different result. The state asserts that the

“type of offense” charged here is noncriminal, in light of the

fact that the prosecution elected to decriminalize the charge

against defendant under ORS 161.566 (factor 1). The state

also observes that no collateral consequences will result from

a conviction (factor 3). In addition, the state urges, the fact

that the legislature chose to punish the offense of second-

degree criminal trespass as a misdemeanor subject to only

a small fine and a brief term of incarceration means that

the punitive significance of a conviction for that offense is

minimal to begin with, and any stigma attaching to such a

conviction was effectively eliminated in this case when the

prosecutor elected to reduce the charge under ORS 161.566

(factor 4). Finally, according to the state, the pretrial proce-

dures to which defendant was subjected did not suggest a

criminal proceeding (factor 5). The state acknowledges that

defendant was arrested prior to her arraignment, but it

argues that the decriminalization that occurred thereafter

superseded what happened to defendant before the arraign-

ment. That is, according to the state, because defendant

could not be arrested, even for failure to appear, once the

charge against her was reduced to a violation, and because

failure to appear on a violation is not a crime (unlike failure

to appear on a misdemeanor or felony), the fact that defen-

dant was arrested, booked, and incarcerated before the

charge was reduced does not rebut the presumption that the

violation prosecution is a noncriminal proceeding.

raise the maximum fine for a conviction of a Class C misdemeanor receiving viola-

tion treatment. Or Laws 2012, ch 82, § 2.

Cite as 354 Or 302 (2013) 311

Amicus ACLU Foundation of Oregon, Inc. disputes

most of those contentions. For example, amicus observes

that the fine structure for a reduced misdemeanor offense

under ORS 161.655 (2009) remained the same as for other

misdemeanor offenses, thereby indicating that the legisla-

ture intended to impose criminal-type financial sanctions

for such offenses.9 With respect to the type of offense, amicus

argues that trespass is a criminal offense because (1) it has

a mens rea element; see City of Portland v. Tuttle, 295 Or

524, 530-31, 668 P2d 1197 (1983) (ostensible “violation” was

a crime, in part because it required proof of “[t]he culpa-

ble mental state of ‘knowledge’ ”); (2) criminal trespass is a

“brand” that “[is] colored by its past, and the idea that the

peace of the community [is] put in danger by the trespasser’s

conduct;” Martin v. Reynolds Metals Co., 221 Or 86, 99, 342

P2d 790 (1959), cert den, 362 US 918, 80 S Ct 672, 4 L Ed

2d 739 (1960); and (3) the scheme is not fully decriminal-

ized, because trespass is a misdemeanor by default unless

the prosecutor makes an election to reduce the charge. With

respect to the punitive significance factor, amicus asserts

that there is a “profound” stigma of the individual that marks

a criminal trespass proceeding as criminal in nature in the

constitutional sense. The only factor over which the state

and amicus do not quarrel is whether criminal-type collat-

eral consequences arise from a reduced misdemeanor. They

agree that there are none.

With the contesting arguments so framed, we turn

to the governing legal principles. As an initial matter, we

think that the state misunderstands the Brown test when it

argues that the prescribed penalty for an offense is the most

important factor in determining whether a proceeding is a

“criminal prosecution” for purposes of Article I, section 11.

As discussed above, the court in Brown stated that “all [the

factors] are relevant, but none is conclusive.” 280 Or at 102.

More importantly, however, this court in Brown did not

state, or even suggest, that the absence of the possibility of

imprisonment creates a presumption that a proceeding is

9

The state notes that the legislature has since amended the statute to provide

that, in reduced misdemeanor cases, the fine structure for violations, not misde-

meanors, applies. ORS 161.566(2) (2011). However, the parties agree that that amend-

ment is not applicable in this case.

312 State v. Benoit

noncriminal. Rather, in characterizing the potential penalty

as the “single most import criterion,” the court in Brown

merely acknowledged that, where incarceration is an avail-

able penalty for an offense, the process leading to such a

possible outcome necessarily is a criminal prosecution. In

fact, this court had held as much on several occasions, in

related contexts, before deciding Brown. For example, in

City of Portland v. Erickson, 39 Or 1, 7-8, 62 P 753 (1900),

the court held that, for former jeopardy purposes under

Article I, section 12, of the Oregon Constitution, when “the

court is empowered to inflict upon the accused not only a fine,

which may be followed by imprisonment for its nonpayment,

but also imprisonment aside from any pecuniary penalty or

forfeiture *  *,” the proceeding is criminal in nature as far

*

as constitutional requirements are concerned. See also State

v. Mayes, 245 Or 179, 184, 421 P2d 385 (1966) (so describing

holding in Erickson); City of Salem v. Read, 187 Or 437, 441,

211 P2d 481 (1949) (same).

But the converse is not true. As the court stated in

Brown, “the absence of potential imprisonment does not con-

clusively prove a punishment non-criminal.” 280 Or at 103.

In that circumstance, other factors may play a more prom-

inent role in determining whether a proceeding is a “crim-

inal prosecution.” Moreover, even though the court in Brown

stated that none of the factors that it identified is “con-

clusive,” as with the application of any multifactorial para-

digm, some factors will point more clearly than others to a

particular conclusion in the circumstances of a given case.

That is the situation here. Although we could analyze at

length the weight and import of the penalty and punitive

significance factors in this case, our sampling of the parties’

diametrically opposed yet generally plausible arguments

about those factors demonstrates that the exercise would

not be particularly helpful.

Instead, we conclude that, as applied to the particular

circumstances of this case, the most significant factors are

the type of offense with which defendant was charged and

the fact that defendant was subjected to pretrial arrest and

detention. With respect to the type of offense, even though

the legislature has authorized a prosecutor to reduce the

Cite as 354 Or 302 (2013) 313

crime of second-degree criminal trespass to a violation, the

legislature nonetheless has declared that offense to be a

crime. As this court observed in Brown, “[w]hen the legis-

lature has defined conduct as a criminal offense, it is a

criminal offense for constitutional purposes even if the

same consequences could have been attached to the same

conduct by civil or administrative proceedings.” Id. at 102.

The court in Brown also emphasized that the 1975 traffic

code “did not free this offense from the punitive traits that

characterize a criminal prosecution,” in part, based on “the

evident legislative desire to emphasize the seriousness of

this offense while facilitating its punishment.” Id. at 110. In

turn, because the legislature defined the conduct as a crimi-

nal offense, the state was permitted to subject the defendant

to uniquely criminal processes.

The court in Brown emphasized the significance of

the possibility of arrest and detention in assessing whether

a proceeding is a “criminal prosecution”:

“[I]t bears on the constitutional distinction between a civil

case and a ‘criminal prosecution’ that the Oregon Vehicle

Code retains many of the pre-trial practices used in the

enforcement of criminal laws. It is by now well understood

that this process encompasses the stages before charge,

plea, and trial as well as the trial itself. The statutes place

major traffic offenses with felonies and misdemeanors in

the law of arrest. ORS 133.310. A person thus arrested

faces the possible use of physical restraints, such as hand-

cuffs, a search of the person, booking (including the taking

of fingerprints or photographs), and detention in jail if not

released by police officers, or at a later time by a magistrate.

See ORS 484.435, ORS 484.100-484.140. Of course a traffic

offender must be subject to being stopped, compare ORS

131.605-131.615, and in the case of apparent intoxication

prevented from resuming his driving. Often that could be

accomplished by other means. But detention beyond the

needs of identifying, citing, and protecting the individual

or ‘grounding’ him, especially detention for trial unless bail

is made, comports with criminal rather than with civil pro-

cedure and is surely so perceived by the public.”

Brown, 280 Or at 108. In a footnote, the court qualified those

statements:

314 State v. Benoit

“Of course this single element does not turn all traffic

offenses into criminal prosecutions. We feel safe in assum-

ing that it is more important to the legislative scheme of

the Oregon Vehicle Code to decriminalize traffic infractions

than to retain the incompatible aspects of ‘full custody’

detention for those offenses that otherwise are effectively

decriminalized. But with respect to DUII, where such deten-

tion is most likely to be used, it is one more reason to doubt

that this aim has been accomplished.”

Id. at 108 n 16. Interestingly, in discussing that factor, the

court focused on the possibility of arrest and detention, that

is, their availability within the pertinent statutory scheme;

the court did not consider the import of that factor where

an arrest and pretrial incarceration actually had occurred.

This case presents an opportunity to consider that issue.

The use of pretrial arrest and detention procedures are

unique to criminal prosecutions. A person may be arrested

for a misdemeanor, ORS 133.310(1)(b), and held in jail for 36

hours or more before arraignment, ORS 135.010, and for up

to 180 days between arraignment and trial, ORS 136.290;

ORS 136.295(4)(a). In the case of a violation, by contrast, law

enforcement options are much more limited. Enforcement

officers are expressly forbidden from arresting a person for

the commission of a violation, and they may stop and detain

a person whom they have reasonable grounds to believe has

committed a violation for only as long as it takes to establish

the person’s identity, conduct a reasonable investigation, and

issue a citation. ORS 153.039.

Following its decision in Brown, this court has

emphasized the uniquely criminal nature of arrest and

pretrial detention in other contexts. For example, in Easton

v. Hurita, 290 Or 689, 625 P2d 1290 (1981), the court held

that the plaintiff motorist’s complaint, challenging the

lawfulness of his arrest and detention in a traffic infraction

stop, stated a cognizable claim for relief in a civil action for

false imprisonment. In so concluding, the court stated:

“our reasoning in [Brown] suggests that to put in jail a

person arrested for a traffic infraction is constitutionally

incompatible with decriminalizing traffic infractions and

removing constitutional safeguards normally afforded to

criminal defendants. As noted in Brown, however, for most

Cite as 354 Or 302 (2013) 315

minor traffic offenses it may be more important to decrimi-

nalize the traffic infraction than to retain the incompatible

aspects of ‘full custody’ detention.”

Easton, 290 Or at 697. Similarly, in State v. Porter, 312 Or 112,

817 P2d 1306 (1991), this court held that evidence discovered

in a police officer’s search of the defendant’s car during a

traffic stop for an open container violation should have been

suppressed because the stop was for a traffic infraction and,

under the applicable statute, the officer was not permitted

to engage in the same law enforcement procedures for traffic

infractions as for full custodial arrests.10 The court stated

that the legislative history showed that the legislature

intended by that statute to avoid conferring on individuals

stopped for traffic infractions all the procedural safeguards

guaranteed under the Oregon Constitution for criminal

prosecutions. Id. at 119-20. It followed, therefore, that,

having been stopped for a traffic infraction, the defendant

could not lawfully be subjected to a search beyond what was

permitted by the infraction statute.

In this case, as discussed above, defendant was part

of a group of people participating in the “Occupy Portland”

protests on October 11, 2011. She and 49 other defendants

were arrested. Defendant was handcuffed and taken into

custody, where she was booked and detained for several

hours. She was later charged by information with one

count of second-degree criminal trespass, a misdemeanor

criminal offense. Law enforcement officers were permitted

to take those actions only because the legislature chose to

10

The court described the purpose and effect of the statute, ORS 810.410

(1981), in the following terms:

“[T]he legislature sought to keep traffic infractions decriminalized and to

reduce the attendant law enforcement methods as much as necessary to

accomplish that goal. The legislature intended to satisfy the concerns expressed

in [Brown], and thus to permit only minimal intrusions on Oregon drivers

stopped for traffic infractions. The words of ORS 810.410(3)(b) reflect that

intent by requiring that any investigation be ‘reasonably related to the traffic

infraction, identification and issuance of citation.’ ORS 810.410(3) defines the

authority of the police to respond to a traffic infraction; by implication, the

statute proscribes any further action by the police, including a search, unless

it has some basis other than the traffic infraction. A search that explores for

evidence of other crimes or infractions is not ‘reasonably related to the traffic

infraction, identification and issuance of citation.’ ORS 810.410(3)(b).”

State v. Porter, 312 Or 112, 119-20, 817 P2d 1306 (1991).

316 State v. Benoit

criminalize the offense of second-degree criminal trespass.

The officers had the option on October 11, 2011, of merely

citing defendant and the other protesters for violations, rather

than arresting them for crimes. Had the officers chosen to

cite the protestors for violations, however, the officers could

not have arrested and detained them. Thus, the officers’

decision to arrest defendant and the other protestors rather

than cite them for violations was a practical choice with

legal consequences.

As noted, the state contends that its subsequent

election to treat the crime for which defendant was arrested

and detained as a violation effectively decriminalized the

proceeding. We do not agree. As this court stated in Pierson

v. Multnomah County, 301 Or 48, 52, 718 P2d 738 (1986),

“the trauma of an arrest and jail booking, and the stigma

that flows from an arrest are well known.” No subsequent

election by the state to purportedly decriminalize the

charge can change the fact that defendant was subjected to

those uniquely criminal procedures and their stigmatizing

effect. In Oregon, arrest records are available for employers,

landlords, licensing agencies, and others to review. See ORS

181.560 (providing for release of arrest records to those

who ask). When the Department of State Police releases

a person’s arrest record, that record includes not only the

date of the arrest but also the “offense for which arrest was

made.” ORS 181.560(1)(b)(B). And, the state government is

not the only depository of arrest records. Numerous counties

post their arrest records online, complete with mug shots

and identifying information, where anyone can view and

download them.11 Such adverse publicity is not erased merely

because, at the prosecutor’s discretion, an offense is later

reduced from a crime to a violation. As the Maine Supreme

Court stated in addressing a similar problem involving a

prosecutor’s election to proceed civilly after an arrest had

occurred:

“The stigma caused by criminal pre-charging procedures

will not disappear when the prosecutor elects to charge a

civil infraction. The fact of an individual’s arrest is public

11

See, e.g., http://e-airs.org/eAirsInternet (Lane County); www.co.marion.or.us/

SO/lnstitutions/inmateoffender/ (Marion County); www.mcso.us/PAID (Multnomah

County).

Cite as 354 Or 302 (2013) 317

information and in many communities will be reported in a

newspaper before a charging decision is docketed. Arrested

as a criminal suspect, the accused is not likely to escape

stigma merely because the conviction is [later] labeled civil.

*  * Indeed, the later adjudication will be for the identical

*

conduct that [the pertinent statute] defines as a crime.”

State v. Freeman, 487 A2d 1175, 1178 (Me 1985).

After the state’s election, this case proceeded as the

same action, for the same offense, with the same elements and

the same maximum potential fine. The state merely proposed

to change the remaining pretrial and trial procedures

and eliminate the possibility of imposition of a 30-day jail

sentence. There is no textual, historical, or logical support

for the proposition that, for purposes of Article I, section 11,

what began as a criminal proceeding with defendant’s arrest,

booking, and incarceration for a crime can, in the absence of

her consent, be transformed without further constitutional

consequence into a noncriminal proceeding. It may be that

many defendants will acquiesce in a bench trial for a misde-

meanor that is reduced to a violation under ORS 161.566.

However, where, as here, the accused already has been sub-

jected to pretrial arrest and detention, such a reduction does

not deprive the accused of the right to a jury trial.

The petition for writ of mandamus is dismissed.