Brown v. Multnomah County District Court

BEATTY, J.,

Pro Tempore, concurring.

I join in the opinion of the court and would add the following comment.

At question in this case is the power of the Legislative Assembly to create new categories of offenses without automatically invoking all the constitutional procedural rights adhering to existing categories, a matter with important implications for all three branches of government.

For reasons set forth in the legislative history, the Legislative Assembly, characterizing its action as "decriminalization,” has abstracted from the category "traffic crimes” undesired driver conduct ranging from improper left turns to DUII, and created a new category of offenses not called "criminal” and not subjecting the offender to jail penalties. These offenses, designated as "traffic infractions” are neither civil actions nor criminal prosecutions in conventional legal terms, but a form of hybrid prosecution. To make its purpose clear, the Legislative Assembly stated in the statute creating traffic infractions that the constitutional rights of appointive counsel, jury trial and proof beyond a reasonable doubt do not apply.

The legislative branch has the constitutional responsibility to identify conduct to be proscribed, to classify such conduct in a reasonable manner, and to change such classifications from time to time. Thus, within this decade, possession of less than one ounce of cannabis has been changed from a Class B felony, with a potential penalty of 10 years in prison, to a "viola *931 tion” subject to a $100 fine. Adultery and fornication, crimes for generations, have been deleted from the lexicon of crime. Whether such classification creates a seamless web of logic is beside the mark. As Mr. Justice Holmes observed: "The life of the law has not been logic; it has been experience.” It is important that the Legislative Assembly be permitted to retain the widest range of options constitutionally possible to deal with that experience. It does not follow, however, that because the Legislative Assembly has proclaimed the inapplicability of constitutional rights that they evaporate. The traffic infractor, great or small, is entitled to have them if the state’s manner of dealing with his conduct invokes them.

In determining whether constitutional procedural rights attach to legal procedures, courts have generally considered the consequences which may attend conviction. Upon a traditional criminal conviction, the person convicted may commonly be subjected to the following range of sanctions, penalties and consequences: imprisonment, fine, costs, subjection to probationary controls, identification as a person with a criminal record, subjection to the doctrine of res judicata in subsequent civil litigation, loss of a license to engage in certain activity, and civil disabilities. In the case at bar, the fine, loss of license, referral to rehabilitation programs and probationary controls remain. However, the power of a court suspending imposition or execution of sentence to impose jail as a condition of probation no longer exists as to a Class A traffic infraction punishable as such, because the offense itself is no longer punishable by incarceration. ORS 137.540.

I agree, therefore, that the traffic infraction prosecution defined as first offense DUII does not require any one of the three claimed constitutional guarantees because the Legislative Assembly has removed the principal characteristics of a criminal prosecution which necessarily are relied upon to invoke them. A potential fine amounting to $1,000 is not sufficient *932 reason to overturn the legislative classification, to declare criminal that which is labeled as noncriminal, and to attach the full panoply of rights associated with traditional criminal prosecutions to what are treated now as traffic infractions. 1

Recognition of a hybrid offense will raise further questions in a legal system in which a sharp line of demarcation has commonly been thought to lie between matters criminal and matters civil. Are Miranda warnings required in traffic infractions? To what extent is the law of search and seizure applicable to traffic infractions? This court may well consider that prosecution of traffic infractions, and in particular first offense DUII, are sufficiently analogous to, although distinctly less than, a criminal prosecution to require such warnings and such restraints. In DUE offenses the arresting officer may not know until after the event whether the offense is prosecutable as a traffic infraction or a Class A misdemeanor. But resolution of such questions awaits another day.