State v. Rode

*667 De MUNIZ, J.

Defendant was charged with attempted assault in the fourth degree and harassment. ORS 163.160(1); ORS 166.065(l)(a)(A). At arraignment, the district attorney elected to try the cases as violations under ORS 161.565(2). Defendant’s motion for a jury trial was denied, and in a trial to the court, he was found guilty on both charges.

ORS 161.656(2) provides:

“Upon appearance of the defendant upon any misdemeanor charge, other than a misdemeanor created under ORS 811.540 and 813.010, before the court asks under ORS 135.020 how the defendant pleads to the charge, the district attorney shall declare on the record the intention whether or not to treat the offense in the case as a violation. The case shall proceed as a violation unless the district attorney affirmatively states that the case shall proceed as a misdemeanor. If the case proceeds as a violation, the accusatory instrument shall be amended to denominate as a violation the offense in the case, and the offense, for purposes of the case, shall thereafter be treated as a violation subject to a fine as provided in ORS 161.635 for violations. If the district attorney declares an intention to treat the offense as a misdemeanor, the offense in the case shall thereafter continue to be treated as a crime. If the offense is denominated a violation pursuant to this subsection, the court shall, when it enters judgment in the case, clearly denominate the offense as a violation in the judgment.” (Emphasis supplied.)

Defendant argues that he was denied his constitutional right to a jury trial under Article I, section 11, of the Oregon Constitution, 1 when the district attorney elected to try these cases as violations under ORS 161.656(2).

Defendant relies on Brown v. Multnomah County Dist. Ct., 280 Or 95 , 570 P2d 52 (1977), and on our application of Brown in State v. Thomas, 99 Or App 32 , 780 P2d 1197 (1989) aff’d on other grounds 311 Or 182 , 806 P2d 689 (1991). 2 In Brown the legislature had sought to “decriminalize” the first offense of driving under the influence of *668 intoxicants (DUII) by making it a Class A traffic infraction instead of a traffic crime. The court acknowledged that the legislature could decriminalize traffic offenses but held that it had failed to do so for DUII. The court identified a number of factors that it considered helpful in determining what constitutes a criminal prosecution. Those factors include: the type of offense; the prescribed penalty; the collateral consequences; the punitive intent of the sanction and the pre-trial practices associated with an arrest and detention for the offense. It noted that no one factor is conclusive. As to DUII, the legislative history showed that the legislature did not regard the offense as less serious than others that remained triable as crimes, that the penalty of a $1,000 fine was significantly punitive and that the pre-trial practices comported with criminal rather than civil procedure. Those three factors indicated that DUII retained too many penal characteristics not to be a criminal prosecution for constitutional purposes.

Defendant argues that three of the factors identified in Brown , pre-trial procedures, community condemnation and the historical perception of assaultive behavior as a ‘ ‘crime, ’ ’ show that assaultive behavior has “criminal characteristics” that preclude its prosecution without the constitutional safeguard of a jury trial. The state urges that we reassess applying Brown to ORS 161.565(2). It contends that the Brown analysis was designed to determine whether the legislature successfully has decriminalized a given crime and that it does not make sense to apply the analysis to a statute that provides for treating most misdemeanors as violations. It contends that it is “unmanageable” for this court to go through the Brown analysis each time one of the hundreds of misdemeanors described in the Oregon Revised Statutes is tried as a violation under ORS 163.565(2).

We agree with the state that the Brown analysis is of limited assistance in determining the issue here. ORS 161.565(2) does not address a distinct offense but, rather, a *669 whole class of offenses. See State v. Thomas, supra, 311 Or at 186 n 5; ORS 161.565(2). “Offenses” are either crimes, violations or infractions. ORS 161.505. Before enactment of ORS 161.565(2), crimes were felonies, ORS 161.525, or misdemeanors. ORS 161.545. However, the effect of ORS 161.565(2) is to change most misdemeanors to violations, unless the district attorney, based on an exercise of discretion, determines otherwise. 3

The legislature is free to devise a system to sanction violations of law by other than a criminal prosecution. See Brown v. Multnomah County Dist. Ct., supra, 280 Or at 101 . In doing so here, it did not retain criminal punishments, as it did for the offense of DUII considered in Brown . The penalty for conviction of a violation is minimal. There is no imprisonment, the maximum fine is $250, and there are no collateral consequences that arise from a violation conviction. ORS 161.635(3); ORS 161.565(3).

The aspect of criminal prosecution that does remain is the possibility of pre-arraignment arrest. ORS 133.045. That aspect, alone, is not of such gravity as to render the prosecution of a violation a “criminal prosecution.” That is so, particularly in the light of the alternative pre-trial procedure for offenses subject to prosecution under ORS 161.565(2). ORS 133.055 authorizes a citation in lieu of custody, which was, in fact, the procedure used in this case.

Defendant’s argument that assaultive behavior retains “criminal characteristics,” because, historically, such behavior has been viewed as criminal and sanctioning it carries community approbation, is based on the premise that behavior that has traditionally been deemed “criminal’ ’ must always be. However, the legislature is free to enforce obligatory conduct by other than the criminal law, see Brown v. Multnomah County Dist. Ct., supra, 280 Or at 100 , or to determine that some offenses will be punished less severely than others. See, e.g., ORS 475.992(4)(f); In re Chase, 299 Or 391, 404 , 702 P2d 1082 (1985) (possession of marijuana in *670 certain quantities is punished less severely than other possessory offenses). While the legislators’ decisions to do so may sometimes reflect societal changes, they also may lead public perception. 280 Or at 106 . By enacting ORS 161.565(2), the legislature, for whatever policy reasons, 4 determined that misdemeanors no longer represent anti-social behavior serious enough to warrant criminal prosecution in the absence of a district attorney’s affirmative decision otherwise.

ORS 161.565(2) permits conduct that could be prosecuted as a misdemeanor to be prosecuted as a violation. That is what happened here. Defendant’s conduct was not a crime, and the prosecution of the conduct was not a criminal prosecution. Defendant has no right under Article I, section 11, to a jury trial. Insofar as our opinion in State v. Thomas, supra, holds otherwise, it is overruled.

Affirmed.

Article I, section 11, of the Oregon Constitution provides for the right to a jury trial “Li]n all criminal prosecutions.” ORS 136.001(1) merely restates that constitutional right.

In Thomas, the defendant had been charged with theft in the third degree and the prosecutor had elected to try the case as a violation. We applied the indicia *668 identified in Brown and held that the defendant was entitled to the constitutional safeguards of a jury trial and proof beyond a reasonable doubt. In its opinion, the Supreme Court did not reach the jury trial issue, because it determined that, even if the charge was prosecuted as a violation, the statutory requirement in ORS 136.415 of proof beyond a reasonable doubt applies to “criminal actions,” which includes violations. ORS 131.005(6).

No issue has been raised in this case about the prosecutor’s apparently unfettered discretion to prosecute the case as a misdemeanor. We express no opinion about that.

The legislative history shows that the measure was intended to be a cost-saving one. State v. Thomas, supra, 311 Or at 186 .