State v. Guzman/Heckler

                                        18

 Argued and submitted June 6; in State v. Guzman, S066328, decision of Court
  of Appeals reversed, judgment of circuit court reversed, and case remanded
 to circuit court for further proceedings; in State v. Heckler, S066373, decision
   of Court of Appeals reversed, judgment of circuit court reversed, and case
      remanded to circuit court for further proceedings December 27, 2019


                STATE OF OREGON,
                Respondent on Review,
                           v.
               RICKY LEE GUZMAN,
                 Petitioner on Review.
   (CC 15CR52393) (CA A164152) (SC S066328 (Control))

                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                TIMOTHY JAMES HECKLER,
                    Petitioner on Review.
          (CC 16CR33772) (CA A163979) (SC S066373)
                                   

     Defendants unsuccessfully moved to exclude certain prior convictions, argu-
ing that those convictions were not “statutory counterparts” to ORS 813.010 that
could raise the seriousness of their present driving under the influence of intox-
icants offense under ORS 813.011. The Court of Appeals affirmed in both cases.
Held: (1) For a foreign conviction to be a statutory counterpart to ORS 813.010
for the purposes of ORS 813.011, the conviction must be for an offense with ele-
ments that closely match those of ORS 813.010; (2) defendant Guzman’s Kansas
conviction was not under a statutory counterpart to ORS 813.010; (3) defendant
Heckler’s Colorado convictions were not under a statutory counterpart to ORS
813.010.
    In State v. Guzman, S066328, the decision of the Court of Appeals is reversed.
The judgment of the circuit court is reversed, and the case is remanded to the
circuit court for further proceedings. In State v. Heckler, S066373, the decision of
the Court of Appeals is reversed. The judgment of the circuit court is reversed,
and the case is remanded to the circuit court for further proceedings.

    En Banc
    On review from the Court of Appeals.*
______________
   * S066328 on appeal from Deschutes County Circuit Court, Michael Adler,
Judge. 

, 

 (2018); S066373 on appeal from Deschutes
County Circuit Court, Wells B. Ashby, Judge. Alta Jean Brady, Judge (Amended
Judgment). 

, 

 (2018).
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   Kyle Krohn, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
briefs for petitioners on review. Also on the briefs was Ernest
G. Lannet, Chief Defender.
   Robert M. Wilsey, Assistant Attorney General, Salem,
argued the cause and filed the briefs for respondent on
review. Also on the briefs were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   NELSON, J.
   In State v. Guzman, S066328, the decision of the Court
of Appeals is reversed. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings. In State v. Heckler, S066373, the deci-
sion of the Court of Appeals is reversed. The judgment of the
circuit court is reversed, and the case is remanded to the
circuit court for further proceedings.
20                                 State v. Guzman/Heckler

        NELSON, J.
         These consolidated cases concern two defendants
who were convicted of driving under the influence of intoxi-
cants (DUII), a crime that is ordinarily a misdemeanor but
that, in each case, was elevated to a felony based on the
defendant’s two prior convictions from other jurisdictions.
See ORS 813.011 (DUII is a Class C felony if the person has
been convicted at least two times in the past ten years of
DUII in violation of ORS 813.010 or its statutory counterpart
in another jurisdiction). The question before us is whether
the foreign laws under which defendants were convicted
are “statutory counterparts” to ORS 813.010, the statute
criminalizing DUII in Oregon. After analyzing the relevant
statutes, we conclude that the appropriate inquiry requires
“close element matching,” State v. Carlton, 

,

 (2017), between ORS 813.010 and the foreign
offense, an approach that we have previously employed in
giving legal effect to convictions from other jurisdictions.
Applying that standard to defendants’ foreign convictions,
we conclude that none of the convictions at issue in this case
were under a statutory counterpart to ORS 813.010.
                    I. BACKGROUND
A.   State v. Guzman
         Defendant Guzman was charged by indictment with
felony DUII and other crimes. With respect to the DUII
charge, the indictment alleged that Guzman had two prior
convictions for DUII from other jurisdictions, including
a 2015 Kansas conviction. Guzman moved to exclude the
Kansas conviction, contending that it was not a “statutory
counterpart” to ORS 813.010 and therefore could not be a
basis for treating his Oregon offense as a felony.
         Guzman argued that the statute under which he
had been convicted, Kan Stat Ann § 8-1567(a), was broader
than ORS 813.010 in two respects: it applied to “attempting
to operate any vehicle” and it allowed conviction based on a
blood alcohol concentration of .08 “as measured within three
hours of the time of operating or attempting to operate a
vehicle.” Both, he argued, made Kan Stat Ann § 8-1567(a)
meaningfully broader than ORS 813.010, with the result
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that it could not be a statutory counterpart. The state
argued, relying on State v. Mersman, 

, 

 (2007), rev den, 

 (2008), that those dif-
ferences in statutory elements did not matter, because Kan
Stat Ann § 8-1567(a) shared a “use, role, or characteristics”
with ORS 813.010.
         The trial court denied Guzman’s motion and ruled
that the Kansas conviction was admissible to prove that
defendant had two prior convictions for DUII or a statutory
counterpart in another jurisdiction. Guzman was tried by a
jury. At trial, the state introduced records of Guzman’s for-
eign convictions, including his Kansas conviction, as exhib-
its, and the jury found him guilty of felony DUII based on
those records.
         Guzman appealed, assigning error to the trial
court’s denial of his motion to exclude the Kansas convic-
tion.1 He argued that Mersman, and subsequent Court of
Appeals cases, had been overruled by this court’s decision in
Carlton, 

, which had been decided after Guzman’s
trial. In light of Carlton, Guzman argued, the term “stat-
utory counterpart” in ORS 813.011 applied only to foreign
offenses virtually identical to ORS 813.010.
        The Court of Appeals disagreed, stating without
explanation that Carlton did not overrule Mersman and con-
cluding that Guzman’s Kansas conviction was properly con-
sidered a conviction under a statutory counterpart. State v.
Guzman, 

, 

 (2018).
          Guzman petitioned for review, which we allowed.
B. State v. Heckler
         Defendant Heckler was charged by indictment with
felony DUII and reckless driving. With respect to the DUII
offense, the indictment alleged that he had previously been
“convicted of driving while under the influence of intoxi-
cants in violation of the laws of this state or another juris-
diction at least two times in the 10 years prior to the date
    1
      Guzman raised a second issue on appeal concerning whether certain evi-
dence of his intoxicated driving had been wrongly admitted. We did not allow
review of that issue.
22                                 State v. Guzman/Heckler

of the current offense.” The indictment listed two separate
Colorado convictions, which occurred in 2006 and 2010.
         Prior to trial, Heckler moved to exclude both prior
convictions. He noted that both convictions had been for vio-
lations of Colo Rev Stat § 42-4-1301(1)(b), which defines the
offense of “driving while ability impaired.” That offense, he
argued, was a lesser included offense of Colorado’s princi-
pal offense of “driving under the influence,” Colo Rev Stat
§ 42-4-1301(1)(a), and was therefore not a “statutory coun-
terpart” to ORS 813.010. Relying on Mersman, the state
responded by arguing that the Colorado offense had the
same “use, role, or characteristics” as ORS 813.010 and was
therefore a statutory counterpart. The trial court ruled for
the state and did not exclude the convictions.
         Heckler entered a conditional no contest plea to fel-
ony DUII, reserving his right to challenge the trial court’s
pretrial ruling on appeal. See ORS 135.335(3) (authorizing
conditional pleas). After the trial court entered a judgment
of conviction based on that guilty plea, Heckler appealed,
assigning error to the denial of his motion and arguing that
neither of his Colorado convictions involved a violation of a
“statutory counterpart” to ORS 813.010. The Court of Appeals
affirmed, relying on its decisions in State v. Donovan, 

, 

 (2011), and Mersman. State v. Heckler,

, 

 (2018).
         Heckler petitioned for review, which we allowed.
            II. “STATUTORY COUNTERPART”
         This case turns on the meaning of the term “statu-
tory counterpart” in ORS 813.011, a statute enacted by the
voters through a ballot measure approved in 2010. In per-
tinent part, that statute provides that the crime of DUII
will be a felony “if the defendant has been convicted of driv-
ing under the influence of intoxicants in violation of ORS
813.010, or its statutory counterpart in another jurisdic-
tion, at least two times in the 10 years prior to the date of
the current offense.” ORS 813.011(1). The parties approach
that interpretive question differently. Defendants’ primary
argument is that “statutory counterpart” should be read
narrowly, to include only foreign offenses with elements
the same or nearly the same as ORS 813.010. Defendants
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argue that the text and context of ORS 813.011 support that
reading. They also rely on Carlton, where we addressed the
meaning of “statutory counterpart” in several statutes—
although not ORS 813.011—in the course of interpreting the
term “comparable offenses.” Defendants argue that Carlton,
as precedent of this court construing the term “statutory
counterpart,” should guide, if not govern, our interpreta-
tion of “statutory counterpart” in ORS 813.011. Defendants
also argue that a narrow interpretation of ORS 813.011
is required in order to avoid two constitutional problems:
a violation of principles of nondelegation and a potential con-
flict with the Supreme Court’s decision in Apprendi v. New
Jersey, 

, 

, 

 (2000).
        The state, by contrast, focuses on a single piece
of context. The state argues that, when ORS 813.011 was
enacted in 2010, two decisions of the Court of Appeals—
Mersman and State v. Rawleigh, 

, 

 (2008)—had interpreted the term “statutory counter-
part” to include foreign offenses with the same “use, role,
or characteristics” as ORS 813.010 and that those decisions
had not required close element matching. The state argues
that the voters who enacted ORS 813.011 would have had
their understanding informed primarily by that context.
         We approach this case using our ordinary interpre-
tive methodology. See State v. Gaines, 

, 

 (2009); Burke v. DLCD, 

, 

 (2012) (applying that methodology to a law enacted by
the people). Although it is neither party’s focus, we begin
our analysis by examining the text of ORS 813.011. We then
turn to Carlton. Although we agree with defendants that
Carlton is relevant precedent concerning the meaning of the
term “statutory counterpart,” we conclude that it does not
control the construction of ORS 813.011. Finally, we turn to
the Court of Appeals decisions that the state relies on and to
defendants’ constitutional arguments.
A.    Text
          ORS 813.011(1) provides:
        “Driving under the influence of intoxicants under ORS
     813.010 shall be a Class C felony if the defendant has been
     convicted of driving under the influence of intoxicants in
24                                     State v. Guzman/Heckler

     violation of ORS 813.010, or its statutory counterpart in
     another jurisdiction, at least two times in the 10 years
     prior to the date of the current offense.”
The first important term in that text is “convicted of.” That
phrase immediately and substantially limits the inquiry
created by ORS 813.011(1). The relevant question is not
whether the defendant has, in fact, driven under the influ-
ence of intoxicants; what matters is whether that conduct
formed the basis for a conviction.
         The next key phrase is “driving under the influ-
ence of intoxicants,” which specifies the particular conduct
of which the defendant must have been convicted. Relevant
context for that phrase comes from ORS 813.010(1), which
provides:
         “A person commits the offense of driving while under the
     influence of intoxicants if the person drives a vehicle while
     the person:
        “(a) Has 0.08 percent or more by weight of alcohol in
     the blood of the person as shown by chemical analysis of
     the breath or blood of the person made under ORS 813.100,
     813.140 or 813.150;
         “(b) Is under the influence of intoxicating liquor, canna-
     bis, a controlled substance or an inhalant; or
        “(c) Is under the influence of any combination of intoxicat-
     ing liquor, cannabis, a controlled substance and an inhalant.”
In light of that context, “driving under the influence of intox-
icants” could be read to refer to the precise elements of ORS
813.010. But more immediate context suggests otherwise:
ORS 813.011(1) refers to convictions for “driving under the
influence of intoxicants in violation of ORS 813.010, or its
statutory counterpart in another jurisdiction.” (Emphasis
added.) That indicates that “driving under the influence of
intoxicants” should not necessarily be read to be coexten-
sive with ORS 813.010, at least to the extent that the term
“statutory counterpart” includes offenses that are not iden-
tical to ORS 813.010.
         That brings us to the term “statutory counterpart.”
Only one of the senses of “counterpart” set out in Webster’s
Third New Int’l Dictionary 520 (unabridged ed 2002) seems
relevant here:
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    “3 a : one remarkably similar to another : a person or thing
    so like another that it seems a duplicate * * * b : equivalent
    : something or someone having the same use, role, or char-
    acteristics often in a different sphere or period[.]”
The listed subsenses have the same core of meaning—a high
degree of similarity. The range from “remarkabl[e]” similar-
ity to “so like another that it seems a duplicate” to “same
* * * characteristics” is not great. Any ambiguity in the
phrase “statutory counterpart” does not arise from uncer-
tainty about how similar to ORS 813.010 a foreign offense
must be to qualify as a statutory counterpart—it must be
very similar—but from uncertainty about the respects in
which it must be similar.
         Read in context, however, that ambiguity is eas-
ily resolved. The phrase “statutory counterpart” refers to
a law under which the defendant was “convicted of driv-
ing under the influence of intoxicants.” ORS 813.011. As a
result, a “statutory counterpart” to ORS 813.010 must, like
ORS 813.010 itself, be an offense that includes the elements
of “driving under the influence of intoxicants.” It follows
that the relevant similarity between ORS 813.010 and its
statutory counterparts is that they have those elements in
common—not that they share some other “characteristics,”
“use,” or “role.”
B. State v. Carlton
         We turn to Carlton, a decision where we discussed
other uses of the term “statutory counterpart,” along with
various similar terms throughout our laws. Defendants
argue that this court construed “statutory counterpart”
in Carlton to require close element matching and that we
should adhere to that holding here. They argue that, even if
Carlton is not read that expansively, it at least established
a presumption that “statutory counterpart” should be read
narrowly, in the absence of context indicating otherwise.
The state argues that our discussion of “statutory counter-
part” in Carlton was dicta and that, in any event, Carlton
does not preclude the argument that it makes in this case.2
    2
      The state also makes a misdirected argument that we should not look to
Carlton as context because it postdates the adoption of ORS 813.011 by the vot-
ers in 2010. However, the only significance that we accord Carlton, and the only
significance that defendants argue that we should lend it, is for its precedential
26                                              State v. Guzman/Heckler

         In Carlton, we construed ORS 137.719, a statute
providing for presumptive life sentences for defendants
who had previously been sentenced two or more times for
felony sex offenses, including “[s]entences imposed by any
other state or federal court for comparable offenses.” ORS
137.719(3)(b)(B). The defendant in Carlton had three prior
convictions under California Penal Code § 288(a), which
defines an offense that “may be proved by any touching of
a child, even outwardly innocent touching, if the touch is
sexually motivated.” Carlton, 

.
         Beginning with the term “comparable offenses,” we
consulted the dictionary definition of “comparable,” conclud-
ing that
     “the word ‘comparable’ has two primary senses. Using the
     first sense, that word could refer to a degree of similar-
     ity that makes comparison appropriate based on the com-
     monality of salient features of the things being compared
     (meaning that they are alike in substance or essentials).
     Alternatively, using the second sense, the word could
     describe a very high degree of similarity (meaning virtu-
     ally identical).”

. We reasoned that “[t]he bare text of ORS 137.719
(3)(b)(B)” could support either meaning, and therefore turned
to context, “which includes other related statutes, particu-
larly statutes that concern how a defendant’s prior foreign
convictions or sentences should be considered for purposes
of sentencing on an Oregon conviction.” 

.
         We observed that many other statutes gave effect
to foreign convictions using somewhat different terms and
noted that “each of the terms that are used in the cited
examples—‘statutory counterpart,’ ‘would constitute,’ and
‘the elements’ would ‘constitute’—are consistent in meaning
with the more restrictive primary meaning of ‘comparable.’ ”

. We also found it “notable that the assault statutes

effect. Precedential decisions from this court are one source of context that we
consider at the first level of construction. Liberty Northwest Ins. Corp., Inc. v.
Watkins, 

, 

 (2010) (“As part of that first level of
analysis, this court considers its prior interpretations of the statute.”); State v.
Murray, 

, 

 (2007) (“At the first level of analysis of a stat-
ute, this court also considers case law interpreting that statute.”).
Cite as 

 (2019)                                           27

use ‘equivalent crime in another jurisdiction’ and ‘statutory
counterpart in any jurisdiction’ interchangeably.” 

         We reasoned that
   “[t]hose examples reveal a consistent pattern. Where the
   purpose of considering a prior conviction is to identify and
   then ‘count’ specific criminal history, generally speak-
   ing, the legislature (both directly and by approving the
   Sentencing Guidelines) has required that the historical
   offense be the same as or nearly the same as a qualifying
   Oregon offense.”
Id. at 41-42. We also observed that there were good reasons
why the legislature would want to adopt a relatively narrow
rule:
   “It is the prerogative of the Oregon legislature to determine
   what factual elements will give rise to criminal responsibil-
   ity under Oregon law. When another state adopts a differ-
   ent legislative policy, no matter how defensible or similar
   to what the Oregon legislature might (or might not) have
   adopted if it had specifically considered the matter—that
   state has made its own public policy judgment. Unless a
   less restrictive meaning is evident from the text and con-
   text of an Oregon conviction-counting statute, there is no
   reason to presume that the Oregon legislature intended to
   adopt another state’s policy by reference, without the atten-
   dant deliberative safeguards that Oregon’s own legislative
   processes prescribe.”
Id. at 42. We therefore concluded that the legislature meant
“comparable offenses” to incorporate the more restrictive
meaning of “comparable” so as to “refer[ ] to offenses with
elements that are the same as or nearly the same as the
elements of an Oregon felony sex crime, not to offenses that
merely share a core similarity with such an offense.” Id. at
43.
         The state takes the position that anything we said
about the term “statutory counterpart” in Carlton was dicta
and is therefore not controlling here. See Halperin v. Pitts,

, 

 (2012) (noting that although
a prior construction in dictum may be persuasive, “we are
not required to follow it as precedent” (emphasis added)). The
state argues that anything that we said about “statutory
28                                State v. Guzman/Heckler

counterpart” was not necessary to our decision in Carlton
because the issue before the court was the meaning of a dif-
ferent term—“comparable offenses”—as it was used in ORS
137.719(3)(b)(B), and that we could have interpreted that
term and that statute without reference to ORS 813.010.
         As we have explained, the term dictum “refers to
a statement that is not necessary to the court’s decision.”
Engweiler v. Persson/Dept. of Corrections, 

,

 (2013). In Carlton, however, our analysis of
terms related to “comparable offenses,” including “statutory
counterpart,” was how this court resolved a textual ambi-
guity in ORS 137.719(3)(b)(B). Even if the state were correct
that that ambiguity could have been resolved in a different
manner, we have repeatedly rejected the argument that the
availability of an alternate route to the same result makes
the reasoning that we did rely upon dicta. See Engweiler,

; State v. Stevens, 

, 

 (2018).
         Thus, Carlton’s conclusion—that when Oregon stat-
utes give legal effect to foreign convictions, those statutes
generally require a form of close element matching, “[u]n-
less a less restrictive meaning is evident from the text and
context,” 361 Or at 42—is relevant to interpreting statutes
that use the term “statutory counterpart” for that purpose,
including ORS 813.011. That presumption favors defendants’
narrow reading of “statutory counterpart” and is consistent
with the most straightforward reading of the text of ORS
813.011. Yet nothing in Carlton forecloses the argument
advanced by the state in this case. The state does not take
issue with Carlton’s general presumption in favor of a nar-
row reading of “statutory counterpart.” It argues, however,
that ORS 813.011 does not require close element matching
because it was adopted at a time when the Court of Appeals
had interpreted “statutory counterpart” more broadly—an
argument that a broader reading is “evident from the text
and context.” 

. We therefore turn to that addi-
tional piece of context—the decisions of the Court of Appeals
prior to 2010—to determine whether it supports a different
reading of “statutory counterpart” in ORS 813.011 than that
indicated by its text and other context.
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C. Prior Court of Appeals Decisions as Context
          The parties disagree about when and whether we
should treat decisions of the Court of Appeals as context
that the legislature—or the people acting in their legisla-
tive capacity—would have relied on in enacting new laws.
Defendants argue that we have rarely, if ever, looked to
Court of Appeals decisions as context in the absence of spe-
cific legislative history indicating that the legislature was
aware of a particular decision. They contend that reliance
on Court of Appeals decisions should be limited to such cir-
cumstances. The state, by contrast, argues that there is no
meaningful difference between decisions of this court and
those of the Court of Appeals.
          We have often recognized that “[c]ourt decisions
that existed at the time that the legislature enacted a
statute—and that, as a result, it could have been aware
of—may be consulted in determining what the legislature
intended in enacting the law as part of the context for the
legislature’s decision.” OR-OSHA v. CBI Services, Inc., 

, 

 (2014). And this court has adverted
to the principle that “[w]hen a statute has been construed
by the court of last resort of the state and is later re-
enacted, it is deemed that the Legislature has adopted the
court’s construction unless the contrary purpose is clearly
shown by the language of the act.” Overland et al. v. Jackson
et al., 

, 

 (1929). This court also
has indicated that, although “the Court of Appeals is not the
court of last resort,” the same principle applies when legisla-
tive history indicates that the legislature was aware of the
Court of Appeals’ interpretation. State v. Ford, 

,
637 n 21, 

 (1990).
          When interpreting statutes with text borrowed
from foreign jurisdictions, our decisions similarly accord a
special status to prior interpretations by the highest court
of the relevant jurisdiction:
   “If the Oregon legislature adopts a statute or rule from
   another jurisdiction’s legislation, we assume that the
   Oregon legislature also intended to adopt the construction
   of the legislation that the highest court of the other juris-
   diction had rendered before adoption of the legislation in
   Oregon.”
30                                 State v. Guzman/Heckler

Jones v. General Motors Corp., 

, 

(1997); see also State v. Cooper, 

, 

 (1994) (“When the Oregon legislature adopts a statute
modeled after another jurisdiction, an interpretation of that
statute by the highest court of that jurisdiction that was
rendered in a case decided before adoption of the statute by
Oregon is considered to be the interpretation of the adopted
statute that the Oregon legislature intended.”); State v.
Stockfleth/Lassen, 

, 

 (1991) (“[W]hen
Oregon adopts the statute of another jurisdiction, the legis-
lature is presumed also to adopt prior constructions of the
statute by the highest court of that jurisdiction.”).
         But, although we have accorded greater signifi-
cance to decisions of the highest court of another jurisdic-
tion, we have never altogether discounted decisions of lower
appellate courts of that jurisdiction, even in the absence of
legislative history specifically indicating that our legisla-
ture was aware of those decisions. For example, in Lindell v.
Kalugin, 

, 

 (2013), interpreting
an Oregon law based on a federal rule of civil procedure that
had not been construed by the United States Supreme Court,
we treated a consistent pattern of lower “federal court deci-
sions as at least highly persuasive as to the intentions of the
Oregon legislature in borrowing from the federal rules.” And
in State v. Edmonds, 

, 

 (2019),
we interpreted an Oregon rule of evidence that had been
derived from federal law, and we looked to a Second Circuit
decision as context. Although we emphasized that that deci-
sion had proved influential on other federal appellate courts,
and that no federal appellate court had reached a different
conclusion on the point in question, we did not discount the
decision because it did not issue from the Supreme Court
or because the legislature had not specifically indicated its
awareness of the decision. 

.
         Although defendants may be correct that we typi-
cally have not looked to Court of Appeals decisions as context
in the absence of an indication that the legislature was aware
of them, we see no reason to elevate that practice to a firm
rule. Given our treatment of intermediate appellate court
decisions from other jurisdictions, it would be anomalous to
refuse to consider Court of Appeals decisions as context in
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the absence of specific legislative history. Simultaneously,
however, our decisions have never indicated that decisions of
an intermediate appellate court are as relevant as decisions
of the jurisdiction’s highest appellate court. Legislators, like
other reasonable readers of court decisions, are aware that
a decision of the Court of Appeals does not settle the law to
the same degree as does a decision of this court.
         It also makes little sense, in this context, not to rec-
ognize differences between Court of Appeals decisions. On
one end of the spectrum, a longstanding Court of Appeals
decision interpreting a statute that this court never has con-
sidered is more likely to be known to the legislature. On the
other end of the spectrum, it makes less sense to assume—
absent a specific indication—that the legislature is aware of
every recent Court of Appeals decision and that it immedi-
ately treats all such decisions as fully determinative of the
meaning of an interpreted statute. That is particularly the
case if the decision in question is in tension with other deci-
sions, leaves important questions unanswered, or has had
its validity called into question. Similar considerations have
informed our reliance on intermediate appellate court deci-
sions from other jurisdictions.3
D. State v. Mersman and State v. Rawleigh as Context
         The state argues that in 2010, when ORS 813.011
was adopted by the voters as part of Measure 73, the vot-
ers would have had their understanding of the term “statu-
tory counterpart” shaped primarily by two Court of Appeals
opinions, Mersman and Rawleigh. Mersman interpreted the
term “statutory counterpart” in ORS 813.010(5), where, as
in ORS 813.011, it allows certain foreign convictions to ele-
vate violations of ORS 813.010(1) into a felony. 

. Mersman concluded that an Alaska offense was a
statutory counterpart to ORS 813.010 because the two stat-
utes “have the same use, role, or characteristics.” 

.
Rawleigh interpreted the phrase “statutory counterpart” as
it appeared in ORS 813.215, where it governs which foreign
convictions or charges make a defendant ineligible for DUII

    3
      The parties also disagree on whether it is appropriate to treat prior judicial
decisions as context when interpreting laws enacted by the people. We need not
take up that question because we find that context unhelpful for other reasons.
32                                            State v. Guzman/Heckler

diversion. 

. Rawleigh, relying on Mersman,
reasoned that a Washington offense was a statutory coun-
terpart to ORS 813.010, concluding that “common uses,
roles, and characteristics are sufficient, despite the possi-
ble differences in the substantive scope of the respective
statutes.” 

. Because of those decisions, the state
argues, voters in 2010 would have understood a “statutory
counterpart” to ORS 813.010 to include any statute with the
same “use, role, or characteristics” as ORS 813.010.
         The first difficulty with the state’s argument is
that, in 2007, the legislature amended ORS 813.010(5), ORS
813.215, and several other statutes using the term “statu-
tory counterpart” to include two additional classes of for-
eign offenses, in addition to statutory counterparts to ORS
813.010, that would trigger the same Oregon consequences:
         “(B) A driving under the influence of intoxicants offense
     in another jurisdiction that involved the impaired driving
     or operation of a vehicle, an aircraft or a boat due to the use
     of intoxicating liquor, cannabis, a controlled substance, an
     inhalant or any combination thereof.
        “(C) A driving offense in another jurisdiction that
     involved operating a vehicle, an aircraft or a boat while
     having a blood alcohol content above that jurisdiction’s per-
     missible blood alcohol content.”
Or Laws 2007, ch 879, § 3.4
        Neither Mersman nor Rawleigh were decided under
the amended statutes. The first Court of Appeals decision to
discuss the significance of those changes was Donovan, 

, in 2011. In Donovan, the Court of Appeals con-
sidered the effect of the amendment on ORS 813.215(1)(a),
which disqualifies defendants from the DUII diversion
program based on pending charges for DUII under ORS
813.010 or a qualifying foreign statute. The Court of Appeals
explained in Donovan that
     “[t]hose disqualifying offenses are phrased in the disjunctive—
     that is, they are presented as alternative means of rendering
     4
       The quoted text corresponds to the addition to ORS 813.010(5). That text
is virtually identical to that added to other statutes. See Or Laws 2007, ch 879,
§§ 4-8, 10.
Cite as 

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   a person ineligible for diversion. Thus, we presume the leg-
   islature intended subparagraphs (B) and (C) [the new addi-
   tions] to have independent meaning from subparagraph (A)
   [where the term “statutory counterpart” appears], rather
   than to be duplicative or illustrative of what a ‘statutory
   counterpart’ might be. Any other interpretation would
   mean the amendments were merely redundant of what was
   already in the statute.

       “At first blush, then, the amendments to ORS 813.215
   (1)(a) seem to narrow the meaning of ‘statutory counter-
   part’ by excluding from its ambit offenses that involve ‘the
   impaired driving of a vehicle’ or a violation of the BAC
   limit—offenses that we might otherwise conclude fall
   under subparagraph (A), the statutory counterpart provi-
   sion, as we have previously interpreted it.”

 (citations omitted). The Court of Appeals
then observed that that was not the only permissible read-
ing of the additions and turned to the legislative history of
those amendments to confirm that the legislature had not
intended to narrow the meaning of “statutory counterpart.”

.
        Between the 2007 amendments and Donovan, a
reasonable reader of ORS 813.010 or ORS 813.215 might
have drawn the same “first blush” conclusion as the Court
of Appeals and questioned whether Mersman and Rawleigh
remained good law. Those decisions were not clear, much
less definitive, indicators of what the phrase “statutory
counterpart” meant in 2010, when ORS 813.011 was sub-
mitted to the voters. We also observe that Mersman and
Rawleigh were decided within three years of ORS 813.011
being adopted. They are not, in other words, the type of
longstanding, settled precedent to which we might accord
greater weight as context.
        The second problem with the state’s argument is that
prior constructions of statutory terms are only one source
of context that we consider when interpreting a statute.
Regardless of the significance accorded to those decisions of
the Court of Appeals, other context in this case outweighs
any conclusion that might be drawn from them. See State
v. Shaw, 

, 

 (2005) (declining to
34                                             State v. Guzman/Heckler

interpret a statute in accordance with a prior construction
because other context was more persuasive). Here, the inter-
pretation urged by the state conflicts with the canon of con-
sistent usage, the principle that, “in the absence of evidence
to the contrary, we ordinarily assume that the legislature
uses terms in related statutes consistently.” State v. Cloutier,

, 

 (2011); see also Village at Main
Street Phase II v. Dept. of Rev., 

, 

(2014) (“the general assumption of consistency counsels us
to assume that the legislature intended the same word to
have the same meaning throughout related statutes unless
something in the text or context of the statute suggests a
contrary intention”).
          That presumption is particularly strong here. The
term “statutory counterpart”—and the specific phrasing
used in ORS 813.011—appears in approximately a dozen
statutes pertaining to intoxicated driving.5 Those statutes
are interrelated. For example, ORS 813.011 elevates DUII to
a felony upon a third conviction, and ORS 809.235(1)(b)(A)(ii)
triggers a permanent license suspension upon a third con-
viction. Nearly all of those appearances of “statutory coun-
terpart” predate Mersman and Rawleigh—in some cases
by decades. The first use of “statutory counterpart” to refer
to convictions from other jurisdictions came in 1981, when
the term “statutory counterpart” was added to statutes per-
taining to Oregon’s DUII diversion program, where it dis-
qualified individuals with foreign DUII convictions from
eligibility. Former ORS 484.450(4)(a) (1981); Or Laws 1981,
ch 803, § 18. After that, “statutory counterpart” appears
to have become the legislature’s go-to terminology when it
wanted to count out-of-state intoxicated driving offenses for
a purpose relating to Oregon’s DUII statutes. Mersman and
Rawleigh would not—could not—inform our interpretation

     5
       See, e.g., ORS 163.118(1)(d)(A) (elevation of conduct to first-degree man-
slaughter); ORS 163.185(1)(d)(A) (elevation of conduct to first-degree assault);
ORS 809.235(1)(b)(A)(ii) (permanent revocation of driver’s license); ORS 809.730
(1)(a)(B) (forfeiture of motor vehicle); ORS 813.010(5)(a)(A)(ii) (elevation of DUII
to a felony); ORS 813.215(1)(a)(A)(ii) (disqualification from DUII diversion based
on pending charges); ORS 813.220(7)(a)(B) (disqualification from DUII diversion
based on subsequent charges or convictions); ORS 813.430(2)(b)(A)(ii) (increase
in length of driver’s license suspension); ORS 813.665(1)(a) (disqualification from
employment as ignition interlock device technician).
Cite as 

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of the many earlier appearances of “statutory counterpart”
in Oregon’s DUII statutes. Because the only reason the state
offers for the adoption of the “use, role, or characteristics”
approach is its appearance in Mersman and in Rawleigh, the
state’s argument is, in effect, that ORS 813.011 should mean
something different from nearly all other uses of “statutory
counterpart” in the context of DUII offenses. Given how the
relevant statutes fit together, it seems implausible that the
voters who adopted ORS 813.011 would have wanted its use
of “statutory counterpart” to take on a different meaning.
        For those reasons, we reject the state’s argument
that Mersman and Rawleigh control the meaning of “stat-
utory counterpart” in ORS 813.011. The plain text of that
statute combined with other, more relevant context, indi-
cates that it requires close element matching between ORS
813.010 and a foreign offense.
E.    Apprendi and Constitutional Avoidance
          For the most part, defendants do not offer an argu-
ment that foreign statutory counterparts must have ele-
ments identical to or narrower than ORS 813.010 in order to
qualify. As we recognized in Carlton, close element matching
requires “elements that are the same as or nearly the same”
as the comparable Oregon offense. 

 (emphasis
added). Defendants do argue, however, that constitutional
avoidance weighs in favor of adopting a stricter approach.
Defendants point to Apprendi, 

, which held
that, “[o]ther than the fact of a prior conviction, any fact that
increases the penalty for a crime beyond the prescribed stat-
utory maximum must be submitted to a jury, and proved
beyond a reasonable doubt.” And defendants observe that
the factual finding involved in ORS 813.011, whether a
defendant has two prior convictions under ORS 813.010 or its
statutory counterpart, is one that increases the maximum
punishment available for the offense. Because of Apprendi,
that inquiry, along with other uses of “statutory counter-
part” to increase maximum sentences, must be submitted to
a jury unless it falls within the prior conviction exception.6
   6
     In Guzman, the only of these cases to proceed to trial, the question of whether
Guzman had prior qualifying convictions was submitted to the jury—avoiding
36                                            State v. Guzman/Heckler

          However, the close element matching approach
adopted by Carlton falls within that exception. The only
facts that must be found, to elevate a misdemeanor DUII to
a felony under ORS 813.011, concern which prior convictions
a defendant possesses, and the statutory elements of those
offenses that are conclusively established by the record of
conviction—not the conduct underlying that conviction. See
State v. Bray, 

, 

 (2007) (stating that
the prior conviction exception “includes only those facts that
the conviction itself or the judicial record conclusively estab-
lishes”). Whether those elements “are the same as or nearly
the same as the elements of” ORS 813.010(1), Carlton, 

, is a legal question, not an additional factual inquiry.

         As defendants observe, some federal sentencing
statutes apply a different, and stricter, legal test for which
prior offenses trigger additional sentencing consequences.
See Descamps v. United States, 

, 

, 

 (2013) (explaining that a prior con-
viction triggers certain sentencing enhancements “only if
the statute’s elements are the same as, or narrower than,
those of the generic offense”). But Apprendi, which is a rule
about when factual questions must be submitted to a jury,
does not require a particular legal test for which convic-
tions trigger sentencing consequences. See James v. United
States, 

, 214 & n 8, 

, 

 (2007), overruled on other grounds by Johnson v. United
States, 

, 

, 

 (2015)
(rejecting an Apprendi challenge to a judicial inquiry into
whether an offense that was the subject of a prior convic-
tion “involves conduct that presents a serious potential risk
of physical injury to another” because that test required
“statutory interpretation, not judicial factfinding”). Because
close element matching, as articulated in Carlton, looks only
to the elements of a defendant’s prior convictions and does
not involve an additional factual inquiry, it falls into the
prior conviction exception. Apprendi does not offer a reason
to prefer a different approach.

any Apprendi issue even if the prior conviction exception did not apply. We do not
decide in this case whether ORS 813.011, or any other use of “statutory counter-
part,” permits or requires a different procedure.
Cite as 

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F.   Close Element Matching When the Elements Are Nearly
     the Same
         Before we apply the close element matching approach
to these cases, we discuss a question left unanswered in
Carlton, but which is important here. As we explained in
Carlton, close element matching requires a foreign offense
to have “elements that are the same as or nearly the same
as the elements of” the Oregon crime to which it is com-
pared. Carlton, 

 (emphasis added). In Carlton,
we did not have occasion to discuss in depth how to deter-
mine when minor differences in the elements would not be
disqualifying. Yet Carlton introduced two important factors
to consider when evaluating a foreign offense with elements
broader than those of the Oregon offense to which it is being
compared, and those two factors are enough to resolve these
cases.7
         In Carlton, we considered whether Cal Penal Code
§ 288(a) was “comparable” to the Oregon offense of first-
degree sexual abuse. We observed that Cal Penal Code
§ 288(a) overlapped with the Oregon offense of first-degree
sexual abuse under some circumstances, but most of its
applications did not involve that overlap: Oregon criminal-
ized physical contact with intimate parts of a child with sex-
ual intent; California’s statute applied to any contact with
a child with sexual intent. 

. We emphasized
that the Oregon offense was “significantly narrower. It also
prohibits sexually motivated conduct, but it proscribes only
a limited category of sexually motivated conduct.” 

.
We therefore concluded that Cal Penal Code § 288(a) did not
closely match the elements of first-degree sex abuse. Id. at 45.
         Thus, the first factor to consider is how the addi-
tional breadth of the foreign statute compares with the over-
all scope of the relevant Oregon statute, in this case ORS
813.010. If the elements of a foreign offense extend to con-
duct not covered by ORS 813.010 only to an insignificant
degree, then it makes sense to refer to the elements as nearly
the same and to view the foreign offense as a statutory

   7
     When a foreign offense differs from an Oregon offense only because it is
narrower, that difference will not preclude the offense from being a close element
match.
38                                     State v. Guzman/Heckler

counterpart. By contrast, where, as in Carlton, the Oregon
offense reaches only a subset of the conduct criminalized by
the foreign offense, the difference is likely to preclude the
foreign offense from qualifying as a close element match.
          The second factor relates not to the breadth of the
additional conduct proscribed by the foreign statute but to its
nature. In Carlton, when comparing Cal Penal Code § 288(a)
to first-degree sex abuse, we emphasized the nature of the
conduct contained within the California statute’s greater
breadth:
     “[T]he California offense has only two conduct elements and
     may be proved by any touching of a child, even outwardly
     innocent touching, if the touch is sexually motivated. That
     means that the California offense could be committed simply
     by placing an arm around a child’s shoulder, patting the top
     of a child’s head, or helping a child put on a pair of shoes,
     if the physical contact—though experienced by the child as
     innocent—is made with a sexual purpose.”
Carlton, 

 (internal citation removed). As that
passage indicates, when the foreign offense reaches con-
duct that is less culpable than that involved in the Oregon
offense, then that is an indication that the foreign offense is
not a statutory counterpart. Culpability, for this purpose, is
determined by examining how the conduct is treated under
Oregon law. A difference in statutory elements that is con-
fined to conduct that, although not proscribed in the same
statute, is nevertheless proscribed and treated with the
same or greater level of seriousness in Oregon is not likely
to be a difference that will preclude the foreign offense from
being a close element match. In such cases, the concern that
giving legal effect to a foreign offense will “adopt another
state’s policy by reference, without the attendant delibera-
tive safeguards that Oregon’s own legislative processes pre-
scribe,” Carlton, 

, is lessened.
                      III.   APPLICATION
A. Guzman and Kan Stat Ann § 8-1567(a)
        With those principles in mind, we turn to the appli-
cation of the close element matching standard to the two
foreign statutes at issue here, beginning with defendant
Cite as 

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Guzman’s case.8 Guzman focuses on two differences between
Kan Stat Ann § 8-1567 and ORS 813.010. First, he observes
that Kan Stat Ann § 8-1567(a) can be satisfied by an
“attempt.” Second, he argues that, Kan Stat Ann § 8-1567
(a)(2) allows the state to obtain a conviction by showing
that “alcohol concentration in the person’s blood or breath,
as measured within three hours of the time of operating or
attempting to operate a vehicle, is 0.08 or more.” As a result,
Guzman contends, if a sober individual tries to start his or
her car, gives up, and subsequently gets drunk, he or she
has violated Kan Stat Ann § 8-1567(a)(2).
        In Carlton, we began our close element matching
analysis by determining what the elements of the relevant
offenses were. 

. We do the same here. We then
address whether Guzman is correct that Kan Stat Ann
§ 8-1567 is broader than ORS 813.010 and, finally, whether
any overbreadth disqualifies the foreign statute from being
a statutory counterpart.
           ORS 813.010(1) provides:
       “A person commits the offense of driving while under
    the influence of intoxicants if the person drives a vehicle
    while the person:
       “(a) Has 0.08 percent or more by weight of alcohol in
    the blood of the person as shown by chemical analysis of
    the breath or blood of the person made under ORS 813.100,
    813.140 or 813.150;
        “(b) Is under the influence of intoxicating liquor, canna-
    bis, a controlled substance or an inhalant; or
        “(c) Is under the influence of any combination of intox-
    icating liquor, cannabis, a controlled substance and an
    inhalant.”
         We held in State v. King, 

, 

(1993), overruled in part on other grounds by Farmers Ins.
Co. v. Mowry, 

, 

 (2011), that the three
     8
       In this court, Guzman assigns error only to the trial court’s denial of his
pretrial motion to exclude his prior Kansas conviction on the ground that it was
not a statutory counterpart to ORS 813.010. Whether that conviction is a statu-
tory counterpart is a question of law, so we review the trial court’s determination
for legal error.
40                                             State v. Guzman/Heckler

ways of proving intoxication listed in ORS 813.010(1)(a) - (c)
are not alternative elements defining separate offenses but,
rather, “three sets of circumstances, any or all of which go
to prove a single essential element (being under the influ-
ence of intoxicants).” Id. at 442. As a result, as is relevant
here, the offense of DUII “has two elements. A conviction
may result if a jury agrees beyond a reasonable doubt that
the accused (1) drove a motor vehicle (2) while under the
influence of intoxicants.” Id. at 446.9

         In examining foreign offenses, it is particularly
important to be clear on the elements of the offense. As we
have made clear in interpreting our own statutes, the text
of a criminal statute, even if contained in a single section
or paragraph, may set forth alternative elements, thereby
creating multiple “separate offenses.” King, 

. Conversely, as in King itself, a list joined by the
word “or” may simply set forth different methods of proving
a single element. 

; see also State v. Pipkin, 

, 

 (2013) (so holding regarding the
trespass element of Oregon’s burglary statute).

          It bears emphasis that what we are concerned with
in this context are the statutory elements of the offense, not
the specifics of a defendant’s misconduct. Facts that are not
elements, even if charged and admitted, are irrelevant to the
“statutory counterpart” analysis. See, e.g., Mathis v. United
States, ___ US ___, ___, 

, 

 (2016) (so holding in the context of federal conviction-
counting statutes and observing practical and constitu-
tional difficulties that might arise were nonelement facts to
be taken into consideration). Conversely, however, where a
law sets forth alternative elements, effectively defining mul-
tiple offenses, even if those offenses are located within the
same subsection or referred to by the same label, the record
of conviction may provide a basis for “determin[ing] what
crime, with what elements, a defendant was convicted of.”
Mathis, ___ US at ___, 

.

    9
      ORS 813.010(4) provides that “the offense described in this section * * * is
applicable upon any premises open to the public,” but that provision is not at issue
in this case.
Cite as 

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        With that in mind, we turn to Kan Stat Ann
§ 8-1567:10
       “(a) Driving under the influence is operating or attempt-
    ing to operate any vehicle within this state while:
       “(1) The alcohol concentration in the person’s blood or
    breath as shown by any competent evidence, including
    other competent evidence, as defined in K.S.A. 8-1013(f)(1),
    and amendments thereto, is 0.08 or more;
       “(2) the alcohol concentration in the person’s blood or
    breath, as measured within three hours of the time of oper-
    ating or attempting to operate a vehicle, is 0.08 or more;
       “(3) under the influence of alcohol to a degree that ren-
    ders the person incapable of safely driving a vehicle;
        “(4) under the influence of any drug or combination
    of drugs to a degree that renders the person incapable of
    safely driving a vehicle; or
       “(5) under the influence of a combination of alcohol and
    any drug or drugs to a degree that renders the person inca-
    pable of safely driving a vehicle.”
       The Kansas statute does not set forth alternative
elements defining multiple crimes. The Kansas Supreme
Court has held that
    “[t]he crime of driving under the influence requires two pri-
    mary elements—that is, driving and simultaneously being
    under the influence. The driving element can be estab-
    lished through proof that the defendant either ‘operated’
    or ‘attempted to operate’ the vehicle, while the ‘under the
    influence’ requirement can be established through proof of
    any of the factual circumstances described in subsections
    (a)(1) through (a)(5).”
State v. Ahrens, 296 Kan 151, 160, 

 (2012).
As a result, the terms “operating or attempting to oper-
ate” merely “ ‘describe the factual circumstances in which
a material element’—i.e., driving—‘may be proven.’ ” Id. at
160, 290 P3d at 635 (quoting State v. Brown, 295 Kan 181,
196-97, 

 (2012)). The same appears to be
   10
      We quote the current version of the statute, as there has been no pertinent
change since the time of Guzman’s conviction.
42                                     State v. Guzman/Heckler

true of the alternative methods of proving the intoxication
element. Therefore, it does not matter which of those factual
circumstances was present in Guzman’s case, even if that
information could be discerned from the record of convic-
tion. Kan Stat Ann § 8-1567(a) defines a single crime; the
only question is whether that crime has the same or nearly
the same elements as ORS 813.010.
          In this case, our analysis begins and ends with the
first difference that Guzman points to, that Kan Stat Ann
§ 8-1567(a) prohibits “operating or attempting to operate
any vehicle” while intoxicated. By contrast, ORS 813.010(1)
applies only if a “person drives a vehicle.” We have not
weighed in on what it means to “drive” a vehicle, but the
Court of Appeals has held for close to 50 years that driv-
ing, for the purposes of DUII, requires putting a vehicle into
motion. See State v. Bilsborrow, 

, 

 (2009); State v. Martinelli, 

, 

 (1971). We accept that construction for the purposes of
this case, as neither party has argued that we should give
the term a different meaning.
         The Kansas Supreme Court has interpreted “oper-
ating” to require movement of the vehicle. State v. Kendall,
274 Kan 1003, 1008, 

 (2002). We see no differ-
ence, therefore, between the Kansas Supreme Court’s inter-
pretation of “operating” and the Oregon Court of Appeals’
interpretation of “drives.” Guzman’s argument, however,
centers on the term “attempting to operate.” And we agree
with Guzman that, by extending to attempted operation,
Kan Stat Ann § 8-1567(a) criminalizes conduct that ORS
813.010(1) does not. For example, in State v. Darrow, 304
Kan 710, 

 (2016), the defendant had been found
by an officer in the driver’s seat of a car with its engine run-
ning and, upon waking, had “fumbled with the gear shift
lever.” 

, 

. The Kansas Supreme
Court, viewing the facts in the light most favorable to the
state, upheld the conviction:
     “[T]he State can point to the following facts: the vehicle’s
     engine was running, i.e., the vehicle was ready to move
     upon the engagement of the transmission; [the defendant]
     had previously moved into the driver’s seat, i.e., she had
     intentionally placed herself in a position to manipulate the
Cite as 

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   controls necessary to move the vehicle and may have been
   the one to start the engine; and, upon being awakened,
   [the defendant] reached down and fumbled with the gear
   shift lever, i.e., she made an overt act toward engaging the
   transmission, which was arguably the last act needed to
   legally ‘drive’ the vehicle.”
Id. at 718-19, 

. And, in a somewhat broader
application of “attempting to operate,” the Kansas Court
of Appeals upheld a conviction where the defendant tried,
unsuccessfully, to start a vehicle with the key in the igni-
tion, while intending to move the car. State v. Adame, 45
Kan App 2d 1124, 1129, 

 (2011).
         We therefore consider whether that additional breadth
disqualifies Kan Stat Ann § 8-1567(a) from being considered
a statutory counterpart to ORS 813.010. Weighing the two
factors discussed above, we agree with defendant that Kan
Stat Ann § 8-1567(a) is not a statutory counterpart to ORS
813.010.
         The first factor that we consider is the degree to
which the scope of Kan Stat Ann § 8-1567(a) diverges from
ORS 813.010. Kan Stat Ann § 8-1567(a) extends to a variety
of factual circumstances where an individual does not move
a vehicle at all, including situations where a car’s engine has
not been turned on, as in Adame. That difference in scope
is not on the scale that we found disqualifying in Carlton,
but the first factor nevertheless weighs against concluding
that the elements of Kan Stat Ann § 8-1567(a) are nearly the
same as ORS 813.010(1).
          We turn to the second factor, whether the additional
conduct included in Kan Stat Ann § 8-1567(a) is treated
as similarly culpable under Oregon law. Most, and possi-
bly all, of the “attempt” conduct included in Kan Stat Ann
§ 8-1567(a) is likely criminalized in Oregon as attempted
DUII. See ORS 161.405(1) (“A person is guilty of an attempt
to commit a crime when the person intentionally engages in
conduct which constitutes a substantial step toward com-
mission of the crime.”). But in Oregon, an attempt is not
treated as equally culpable as the completed offense, see
ORS 161.405(2) (classifying attempts as one grade lower
than the completed offense), and ORS 813.011 does not make
44                                     State v. Guzman/Heckler

a prior conviction for attempted DUII a basis for elevating a
DUII conviction to a felony. Because the additional breadth
of the driving element of Kan Stat Ann § 8-1567(a) covers
exclusively, or nearly exclusively, conduct that is criminal
in Oregon, but that Oregon law does not deem equally cul-
pable, the second factor weighs, albeit only weakly, against
treating Kan Stat Ann § 8-1567(a) as a statutory counter-
part to ORS 813.010.
         This is a close case, but considering the two factors
together, we conclude that the inclusion of “attempting to
operate” precludes Kan Stat Ann § 8-1567(a) from being
considered a statutory counterpart to ORS 813.010(1). The
trial court erred in holding that Kan Stat Ann § 8-1567(a)
was a statutory counterpart to ORS 813.010 and therefore
erred in denying Guzman’s motion to exclude that convic-
tion. Guzman asks this court to reverse his conviction for
felony DUII and to remand his case to the trial court for
entry of a conviction for misdemeanor DUII and for resen-
tencing. Because Guzman has agreed to that disposition,
and because the state has not requested an alternative dis-
position, we conclude that Guzman’s requested disposition is
appropriate in this case.
B. Heckler and Colo Rev Stat § 42-4-1301(1)(b)
         We now turn to defendant Heckler’s convictions
for violation of Colo Rev Stat § 42-4-1301(1)(b) in 2006 and
2010. In both years, the pertinent text was substantially the
same, so we quote only the text of the 2010 statute:
         “(1)(a) It is a misdemeanor for any person who is under
     the influence of alcohol or one or more drugs, or a combina-
     tion of both alcohol and one or more drugs, to drive a motor
     vehicle or vehicle.
        “(b) It is a misdemeanor for any person who is impaired
     by alcohol or by one or more drugs, or by a combination of
     alcohol and one or more drugs, to drive a motor vehicle or
     vehicle.
        “* * * * *
        “(f) ‘Driving under the influence’ means driving a motor
     vehicle or vehicle when a person has consumed alcohol or
Cite as 

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   one or more drugs, or a combination of alcohol and one or
   more drugs, that affects the person to a degree that the
   person is substantially incapable, either mentally or phys-
   ically, or both mentally and physically, to exercise clear
   judgment, sufficient physical control, or due care in the safe
   operation of a vehicle.
       “(g) ‘Driving while ability impaired’ means driving a
   motor vehicle or vehicle when a person has consumed alco-
   hol or one or more drugs, or a combination of both alcohol
   and one or more drugs, that affects the person to the slight-
   est degree so that the person is less able than the person
   ordinarily would have been, either mentally or physically,
   or both mentally and physically, to exercise clear judgment,
   sufficient physical control, or due care in the safe operation
   of a vehicle.”

Colo Rev Stat § 42-4-1301 (2010).
         Driving while ability impaired (DWAI), defined by
Colo Rev Stat § 42-4-1301(1)(b), is a separate offense from
the crime defined by Colo Rev Stat § 42-4-1301(1)(a). See
Colo Rev Stat § 42-4-1307(3) - (4) (defining different pen-
alties for the two offenses); Byrd v. Stavely, 

 (Colo App 2005) (recognizing that DWAI is a separate
offense with lesser penalties). There is no dispute that both
of Heckler’s convictions were for DWAI.
        Heckler’s argument that DWAI is not a statutory
counterpart to ORS 813.010 focuses on a single element:
impairment. For that reason, we address only that ele-
ment and do not discuss other possible differences between
the elements of ORS 813.010 and Colorado DWAI. The state
responds to that argument by contending that DWAI has a
very similar impairment element to ORS 813.010 and is, for
that reason, a statutory counterpart.
         Under Colorado law, the impairment element is sat-
isfied when a person is
   “affect[ed] * * * to the slightest degree so that the person
   is less able than the person ordinarily would have been,
   either mentally or physically, or both mentally and physi-
   cally, to exercise clear judgment, sufficient physical control,
   or due care in the safe operation of a vehicle.”
46                                              State v. Guzman/Heckler

Colo Rev Stat § 42-4-1301(1)(g) (2010).11 By contrast, the
impairment element of ORS 813.010(1) can be proved either
by a blood alcohol content (BAC) level of .08 percent or by
showing “that the driver was impaired to a perceptible
degree while driving.” State v. Mazzola, 

,

 (2015). The “perceptible degree” standard has
been part of our law for close to a century. See State v. Noble,

, 

 (1926); State v. Robinson, 

, 

 (1963).
         The state argues that there is little difference
between DWAI and DUII under ORS 813.010. We disagree.
Colorado’s DWAI law criminalizes driving even while imper-
ceptibly intoxicated, provided that the individual’s mental
or physical abilities relating to driving are affected “to the
slightest degree.” Colo Rev Stat § 42-4-1301(1)(g) (2010).
That conduct falls below the “perceptible degree” of intoxica-
tion threshold set by ORS 813.010(1). To be sure, impercepti-
ble intoxication can also violate ORS 813.010(1)(a), but only
when the person’s BAC at the time of driving was 0.08 or
higher. DWAI, under Colorado law, criminalizes lower levels
of imperceptible intoxication because it extends to even the
“slightest degree” of impairment.12
        Guided by the two factors discussed above, we con-
clude that the degree to which Colorado’s DWAI offense
includes conduct not captured by ORS 813.010 is sufficiently

     11
        Colorado courts have not offered an exegesis of Colo Rev Stat § 42-4-1301
(1)(b), although it is clear that “DWAI has a lower proof threshold than DUI[.]”
People v. Grassi, 

 (Colo App 2011), aff’d, 

 (Colo
2014). But Colorado courts treat statutory text as the most important consider-
ation when interpreting a law. See People v. Cross, 

 (Colo 2006) (“We
look first to the plain text of a statute, reject interpretations that render words
or phrases superfluous, and harmonize potentially conflicting provisions, if pos-
sible.”). The plain text of Colo Rev Stat § 42-4-1301(1)(g) is sufficient to establish
the scope of DWAI under Colorado law.
     12
        It could be argued that there is little practical difference between the two
statutes because DWAI convictions are likely to occur only when the intoxica-
tion is perceptible. That argument is unpersuasive for two reasons. First, what
matters is the scope of the elements and their differences as a legal matter, not
the reality of how enforcement plays out in Colorado (much less our uninformed
guess at it). In addition, evidence from observation is hardly the only way to
prove impairment. To that end, Colorado law specifically provides for DWAI to
be proven by breath or blood tests by creating a presumption that an individual
is ability impaired when his or her BAC is between .05 and .08 percent. Colo Rev
Stat § 42-4-1301(6)(a)(II).
Cite as 

 (2019)                                   47

significant to prevent it from qualifying as a statutory coun-
terpart. Colo Rev Stat § 42-4-1301(1)(b) extends to drivers
who are slightly and imperceptibly impaired, a class of
persons that could be significant in size. The first factor
therefore weighs against concluding that it is a statutory
counterpart to ORS 813.010. Turning to the second factor,
none of that additional conduct is criminal in Oregon. Under
Oregon law, the “perceptible degree” standard draws a line
between slight impairment that does not violate the law and
the more significant impairment that does. Therefore, the
second factor also weighs against treating Colo Rev Stat
§ 42-4-1301(1)(b) as a statutory counterpart to ORS 813.010.
          While we do not hold that every foreign offense set-
ting a lower bar for intoxication than ORS 813.010(1) is dis-
qualified from being considered a statutory counterpart, we
hold that the Colorado DWAI statute sets the bar low enough
that its elements are not a close match. Like the California
statute considered in Carlton, Colo Rev Stat § 42-4-1301
(1)(b) criminalizes conduct that is legal in Oregon in ways
that are sufficiently significant that we cannot consider it
a statutory counterpart. Accordingly, the trial court erred
in denying Heckler’s motion to exclude his prior convictions.
He is entitled, as he requests, to have the case remanded to
the trial court so that he may withdraw his conditional plea.
See ORS 135.335(3) (“A defendant who finally prevails on
appeal may withdraw the plea.”).
                    IV. CONCLUSION
         We hold that, in determining which foreign offenses
qualify as statutory counterparts to ORS 813.010, the appro-
priate inquiry is close element matching. We conclude that
Guzman’s prior Kansas conviction and Heckler’s two prior
Colorado convictions were for offenses with elements that
are not “the same as or nearly the same,” Carlton, 

, as those of ORS 813.010(1). Defendants’ prior foreign
convictions are, for that reason, not convictions under statu-
tory counterparts to ORS 813.010.
         In State v. Guzman, S066328, the decision of the
Court of Appeals is reversed. The judgment of the circuit
court is reversed, and the case is remanded to the circuit
48                                 State v. Guzman/Heckler

court for further proceedings. In State v. Heckler, S066373,
the decision of the Court of Appeals is reversed. The judgment
of the circuit court is reversed, and the case is remanded to
the circuit court for further proceedings.