explaining that the “guarantee [of] proof beyond a reasonable doubt” is “required by due process under the federal 14th amendment not only in criminal prosecutions but in other proceedings of similar character”
How later courts described this case
- explaining that the “guarantee [of] proof beyond a reasonable doubt” is “required by due process under the federal 14th amendment not only in criminal prosecutions but in other proceedings of similar character”
- holding that the meaning of “criminal prosecution” is not confined to those misdemeanor cases in which imprisonment is actually or even potentially to be imposed
- describing a $1,000 fine as “at the margin of legislative discretion” dividing a civil from a criminal penalty, and as “strong evidence of the punitive significance” that the legislature intended the fine to have
- observing that “all criminal 47 prosecutions” in Oregon Constitution includes all conduct that the legislature has defined as a criminal offense
Written by the judges who cited it.
The opinion
HOLMAN, J.,
dissenting.
I do not disagree with the factors or the methodology used by the majority in its analysis of the problem, but I do disagree with the apparent weight given the different factors, and, in any event, I disagree that it is necessary to hold unconstitutional the entire statutory scheme as it relates to first offense driving while under the influence.
As a commencing point, there was no such crime as drunken driving until the legislature originated one. *113 The legislature in its discretion may summarily abolish such a crime, if it desires. In the present instance it so intended, and the only issue is whether it accomplished its intention in compliance with constitutional requirements. Although the majority’s opinion has demonstrated that many factors are at least tangentially relevant, it is my opinion that only two of them are preeminent in considering whether a successful conversion from criminal to civil has been accomplished: the penalty which may be imposed, and the custodial treatment permitted of a person who has been apprehended.
Addressing the penalty factor first, it is notable that the legislature in its intent to decriminalize first offense driving while under the influence has abolished any imprisonment for the offense. Of the rights in question here, it is generally recognized by all courts that the right to be represented by counsel is the preeminent one. Stevenson v. Holzman, 254 Or 94, 99 , 458 P2d 414 (1969). This court and the Supreme Court of the United States have gone no further in holding that persons are entitled to counsel than to say that if imprisonment is involved, a defendant must be given appointed counsel absent a knowing waiver. Argersinger v. Hamlin, 407 US 25 , 92 S Ct 2006 , 32 L Ed2d 530 (1972); Stevenson v. Holzman, supra. If possible imprisonment determines whether one should be represented by counsel, it must also determine the entitlement to any lesser right. Thus, the majority is going further than this court and the Supreme Court of the United States has ever gone.
As the majority points out, two federal Court of Appeals cases have adopted $500 as the amount which requires a jury trial. 1 The Supreme Court of the United States threw considerable doubt upon the money limit when it approved a fine of $10,000 without a jury trial, which fine, admittedly, was not *114 against an individual. 2 Although the majority admits that $1,000 is "at the margin of legislative discretion” when levied against an individual, it is apparent that some members of the majority are concerned about the size of the possible fine. I would hold that a $1,000 fine could be imposed without the protections claimed here. A stated amount of money is an unstable thing upon which to base a finding of unconstitutionality, because its relative value is transient. The basis for the $500 figure used by federal courts is 18 USC § 1 (3), which defines a "petty offense” under federal law to be an offense the maximum punishment for which is not more than a $500 fine and six months in jail. The $500 figure was established by federal statute in 1930 and has never been changed. Today $500 has about one-fifth the purchasing power it had in 1930; conversely, in 1930 $500 had the purchasing power of approximately $2,500 today. However, even if $1,000 is presently a large enough sum of money to require the protections claimed, I do not deem is necessary to hold the entire application of the statute to a first offense of driving under the influence to be unconstitutional. My reasons therefor will be explained subsequently.
Insofar as the custodial handling of a person apprehended for a violation is concerned, most certainly no criminal connotations can be inferred from such person’s being temporarily detained, separated from his vehicle, searched, and handcuffed, if necessary, for his own protection and for the protection of others. However, as it is pointed out in the majority’s opinion, the statutes permit his being held to answer to the charge in lieu of bail. No person may constitutionally be held to answer to a civil charge in lieu of bail, and such a provision is patently unenforceable.
If a person who was held subject to bail was to raise the issue by a writ of habeas corpus, he would promptly be turned loose because to so hold him would be an unconstitutional application of the bail statute. *115 Why, then, are we required to invalidate the entire application of the statute when only a single provision of the statute is obviously unenforceable? There is no necessity to "throw out the baby with the bath water.” The majority recognizes that it was certainly more important to the legislature to decriminalize driving while under the influence than to retain the bail provision. The majority states, "We feel safe in assuming 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. * * *.” Note 16.
The same reasoning is applicable to the difference between a fine of $1,000 and one of $500. If a person is fined $1,000 and raises the issue, we would not invalidate the entire statutory application; rather, we would limit the fine to within allowable limits. It is clear that these two provisions are the difference between a statute that is arguably criminal and one that is civil. Had challenges to these two provisions previously been made and sustained, we would not have considered them in our resolution of the present challenge but would have sustained the statute. There is no reason why we should not so sustain the statute now or why we should completely frustrate the intention of the legislature to do something which is admittedly within its power—to decriminalize driving while under the influence. It is our obligation to allow the legislature to carry out its expressed intention by voiding those portions of the statute which offend constitutional requirements, when it is clear, as it is, that those portions would not have been critical to the passage of the act.
I, therefore, dissent.
United States v. Hamden, 552 F2d 276 (9th Cir 1977); Douglass v. First National Realty Corp., 543 F2d 894 (DC Cir 1976).
Muniz v. Hoffman, 422 US 454 , 95 S Ct 2178 , 45 L Ed2d 319 (1975).