# State v. Norton > Court of Appeals of Oregon · June 9, 1982 · 57 Or. App. 679 URL: https://www.frixlaw.com/law-library/cases/6929743 ## Case - **Full name:** STATE OF OREGON v. MICHAEL GENE NORTON - **Court:** Court of Appeals of Oregon - **Decided:** June 9, 1982 - **Citations:** 57 Or. App. 679; 646 P.2d 53; 1982 Ore. App. LEXIS 3037 - **Precedential status:** Published - **Opinion:** Dissent by Buttler - **Judges:** Buttler, Warren - **Cited by:** 1 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Overruled by State v. Renteria, 59 Or. App. 619 (1982). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/6929743 ## Opinion text BUTTLER, P. J., dissenting. The majority are rightly concerned with the lack of an express period of limitations during which an habitual traffic offender proceeding may be commenced against one who comes within the statutory definition of an habitual offender. ORS 484.705(1). To avoid that “untenable” (57 Or App at 682) result, they wrench the Habitual Traffic Offender Act into a posture where they can determine that it imposes either a “penalty” or a “forfeiture,” or both, thereby bringing into play the two year statute of limitation provided by ORS 12.110(2) for an action on a statute for a penalty or a forfeiture to the state. I do not think the Act imposes either a penalty or a forfeiture, and for this court to hold that it does, in order to cure a perceived defect, may be a case where the medicament is worse than the disease. Accordingly, I dissent. Reading the Habitual Traffic Offenders Act (ORS 484.700 - 484.750) as a whole makes it clear that the function of the Act is to determine the status of one who fits the statutory definition of an habitual offender. Once a driver has been judicially determined to have that status, his right to operate motor vehicles in this state is controlled and supervised by the Department of Motor Vehicles. ORS 484.735 provides, in relevant part: *685 “(2) A one-year, renewable probationary license may be issued to a habitual offender if he: “(a) Successfully completes a defensive driving course conducted by the division; “(b) Continually satisfies the conditions of the probationary license; and “(c) Submits a report of a diagnostic examination conducted by a private physician showing to the satisfaction of the State Health Officer that he is physically and mentally competent to drive. “3) The conditions of a probationary license shall include that if a habitual offender is convicted of more than one moving violation within any 12-month period the probationary license shall be revoked and may not be reinstated for one year from the date of last conviction. “(4) The division may establish by rule additional conditions of a probationary license.” Although the status of habitual offender imposes severe restrictions on the offender’s right to drive an automobile, those restrictions do not amount to a forfeiture. It may well be, as appears to be the case here, that the offender’s driver’s license has already been suspended at the time his status as an habitual offender is determined. Here, the defendant’s three convictions within the relevant five year period were all for driving with a suspended operator’s license, so it is particularly difficult to consider that this defendant “forfeited” his license as a result of this proceeding. ORS 484.730 requires that after a determination that the driver is an habitual offender, he surrender to the court all licenses or permits to operate a motor vehicle on the highways of this state. Here, it appears that defendant had none to surrender. It is equally difficult to characterize this proceeding as an action for a penalty. The Act does not provide a fine or imprisonment as a result of a determination that the driver is an habitual offender: «* * * Thg Act is not intended to punish habitual offenders; there is no such crime as being a habitual offender. The purpose of the Act is to protect the public. ***” State v. Wells, 27 Or App 537, 540 , 556 P2d 727 (1976). The majority, in concluding that the legislature intended some statute of limitations to apply to proceedings *686 under the Act, emphasize the provisions of ORS 484.715 and 484.720, both of which indicate that prompt action be taken at different stages in the enforcement of the Act. However, ORS 484.715 requires prompt action by DMV when it receives an abstract of the second conviction described in ORS 484.705(l)(a) to notify the licensee and to offer the licensee an opportunity to meet with a representative of the division, with two purposes in mind: (1) to make sure the licensee is aware of the Habitual Offenders Act so that he will be aware of the consequences which may flow from an additional serious traffic offense, and (2) to advise the licensee of the availability of educational programs for driver improvement. It is apparent that the purpose of that statutory requirement is to obviate the necessity of proceeding against the driver as an habitual offender. The Act requires that the notice be given, but it does not require that the licensee accept the invitation to meet with a representative of DMV. That section has nothing to do with the time within which a proceeding must be commenced if the licensee is convicted of the third offense. The prompt action required by ORS 484.720 applies to the district attorney after he receives the abstract of the driving record of the alleged offender from DMV. Subsection (2) of that statute requires the district attorney to file a complaint under the Act “forthwith.” However, there is no such requirement in subsection (1) of that statute with respect to DMV. Perhaps there should be, but there is not. This case involves the delay of DMV in transmitting the abstract to the district attorney. The district attorney did proceed “forthwith” after receiving it. Whether the legislature intended not to have a period of limitation applicable to proceedings under the Act, or whether the absence of such a limitation period is an oversight, is not so clear as the majority assume. Under ORS 484.730, there are only two bases on which the court may dismiss the proceedings: (1) if the person before the court is not the person named in the abstract, or (2) if he is not an habitual offender. There is nothing authorizing the court to dismiss for failure to commence the proceedings within a specified time or within a reasonable time. If the failure to include a period of limitations within which proceedings under the Act must be com *687 menced is a legislative oversight, we should leave it to the legislature to fill that void. Certainly, it is inappropriate to make a judicial determination that proceedings under the Act are either penal or effect a forfeiture, or both, in order to impose what we think is a reasonable limitation period. To date, such proceedings have been treated as civil proceedings, see State v. Wells, supra; if the court’s opinion today holds that they are penal in nature, the result may be more than the majority bargain for. See Brown v. Multnomah County Dist. Ct., 280 Or 95 , 570 P2d 52 (1977). Notwithstanding the absence of an express limitation period in the Act, there may be circumstances under which the court may determine that it would not effectuate the purposes of the Act to determine that the driver is an habitual offender because the driver, for a period of more, say, than 20 years after his last conviction (57 Or App at 682) has not demonstrated his indifference to the safety and welfare of others and his disrespect for the laws of the state. ORS 484.710(2). That question, however, is not before us here. As a coda, I should mention that if there has been any prejudice in this case, it has been to the public, not the defendant. Accordingly, I respectfully dissent. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/6929743. Public record. Not legal advice.