State v. Rodriguez

At issue in this case is the meaning of ORS 809.235(l)(b) (2003), amended by Or Laws 2005, ch 436, § l,1 which provides that a court must order a person’s driving privileges revoked either if the person is convicted of felony driving while under the influence of intoxicants (DUII) or “if the person is convicted of misdemeanor driving while under the influence of intoxicants under ORS 813.010 for a third time.” (Emphasis added.) In this case, defendant pleaded guilty to misdemeanor DUII. It happens to be his fourth misdemeanor DUII. The question is whether ORS 809.235(l)(b) requires the court to revoke his driving privileges. The trial court concluded that the statute requires the revocation of defendant’s driving privileges. Defendant appeals, contending that the trial court erred in construing the statute. We agree with the trial court and affirm.

The relevant facts are not in dispute. In August 2004, defendant pleaded guilty and was subsequently convicted of DUII when he drove with a blood alcohol content of .27 percent. He had previously been convicted of DUII in 1976 and 1980 in Oregon. He also had been convicted of DUII in 1989 in California.

At sentencing, the state argued that, under ORS 809.235(l)(b), the trial court was required to permanently revoke defendant’s driving privileges. Defendant argued that the statute does not apply to him. According to defendant, the statute applies only when a person has been convicted of misdemeanor DUII “for a third time,” and this is his fourth such conviction. The trial court agreed with the state and permanently revoked defendant’s driving privileges.

*27On appeal, defendant renews his contention that the statute does not apply because this is his fourth — and not his third — conviction for misdemeanor DUII. According to defendant, the plain meaning of the reference to a “third” means that there must be two, and only two, prior convictions.

In response, the state first contends that defendant’s appeal is not justiciable. The state argues that, under ORS 138.050(1), a defendant who has pleaded guilty or no contest may appeal only a limited number of issues pertaining to the lawfulness of a sentence. In this case, the state argues, the trial court’s revocation of defendant’s driving privileges pursuant to ORS 809.325 is, technically, not part of a “sentence” within the meaning of the statute. We rejected that contention in State v. Nave, 214 Or App 324, 327-28, 164 P3d 1219 (2007). We adhere to that holding in this case, as well.

On the merits, the state contends that the trial court was correct in concluding that the statute applies. According to the state, the statute applies when there has been a third conviction, which plausibly could apply either to a defendant who has only two prior DUII convictions or to a defendant who has at least two such convictions. The state urges the latter construction as the one that the legislature more likely than not intended. In support, the state notes that the legislature employed the indefinite article — “a third time”— which ordinarily is taken to be an indefinite determiner with an indefinite reference. The state also notes that defendant’s proposed construction would produce the implausible result that a person with a greater number of prior DUII convictions would be entitled to a lesser penalty. Even assuming that the statute is ambiguous, the state contends, the legislative history makes clear that the interpretation that defendant proposes is not what the legislature intended.

Resolving the parties’ dispute requires an application of familiar principles of statutory construction. Familiar as they are, it may be worthwhile to review some of the basics. First, the object of the exercise is to ascertain, if possible, the intention of the legislature. ORS 174.020(l)(a) (“In the construction of a statute, a court shall pursue the intention of the legislature if possible.”). Second, the intention of the legislature is ascertained by examining the language of the statute *28in three sequential steps described in PGE v. Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993). At the initial level of the analysis, we are to examine the words of the statute in context to determine whether the disputed provision is “ambiguous,” that is, whether the provision is capable of more than one reasonable construction. If it is, we then proceed to the legislative history, and, if the legislative history does not resolve that ambiguity, we resort to relevant canons of construction. Id. It is important to emphasize how little it takes to demonstrate that a statute is “ambiguous.” As we explained in Godfrey v. Fred Meyer Stores, 202 Or App 673, 686, 124 P3d 621 (2005), rev den, 340 Or 672 (2006):

“[T]he threshold of ambiguity is a low one. It does not require that competing constructions be equally tenable. It requires only that a competing construction not be ‘wholly implausible.’ Owens v. MVD, 319 Or 259, 268, 875 P2d 463 (1994)[.]”

With the foregoing principles in mind, we turn to the wording of the statute. ORS 809.235(l)(b) provides:

“The court shall order that a person’s driving privileges be permanently revoked if the person is convicted of felony driving while under the influence of intoxicants under ORS 813.010 or if the person is convicted of misdemeanor driving while under the influence of intoxicants under ORS 813.010 for a third time.”

In this case, the question is what the legislature intended by the reference to a person having been convicted of misdemeanor DUII “for a third time.” More precisely, the question is — at least initially — whether there is more than one construction of that provision that is not “wholly implausible.” Owens, 319 Or at 268.

The answer to that question is straightforward. The statute is at least ambiguous. In ordinary speech, references to numeric sequences can mean a variety of things. According to the usual source of ordinary meaning, Webster’s Third New Int’l Dictionary 2377-78 (unabridged ed 2002), for example, the adjective “third” may refer to “being number three in a countable series,” or “being next to the second in place or time,” or “being the last in each group of three in a series,” among other things. One of those definitions — the middle *29one — is consistent with defendant’s proposed construction. But the other two are consistent with the state’s.

That is not surprising, as the ambiguity of numeric references is a common feature of ordinary speech. To pick a silly example, when you tell your child, “if you do that one more time, you are grounded,” that admonition does not necessarily mean that grounding will follow one — and only one — offense. To cite another, to tell the child that he or she may have “seconds” does not necessarily mean that the child cannot have a third or fourth helping. The precise meaning of the numeric reference depends on the context in which it is employed.

More to the point, the legislature employs references to ordinal numbers in the same way. For example, ORS 468.939(2) provides that the crime of unlawful air pollution in the first degree is a Class B felony. The statute goes on to say that, “upon a second conviction” of the offense within a five-year period, the court may impose a fine of $200,000 in addition to any other sentence. The statute says nothing about subsequent convictions. It seems clear that the legislature did not intend that the availability of the additional fine to be limited to the second — and only the second — conviction and that, upon a third or fourth conviction within the requisite five-year period, the offense reverts to the lesser sentence, and it does no particular violence to the language to read the statute consistently with that understanding. See also ORS 468.946(3) (“Upon a second conviction for unlawful water pollution in the first degree within a five-year period,” a court may impose a fine in addition to other allowable sentence.).

So, to return to the wording of ORS 809.235(l)(b), there is nothing in the phrasing of the provision referring to a defendant having been convicted of misdemeanor DUII “for a third time” that necessarily means that the statute applies to a third — and only a third — conviction. Reading the statute to apply to a third and subsequent convictions is, in other words, not wholly implausible.

Ambiguity, of course, is not determined by reference to the phrasing of a statute in isolation. See, e.g., Lane County v. LCDC, 325 Or 569, 578, 942 P2d 278 (1997) (“[W]e do not *30look at one subsection of a statute in a vacuum; rather, we construe each part together with the other parts in an attempt to produce a harmonious whole.”). The question then becomes whether there is something in the relevant context of ORS 809.235(l)(b) that renders the foregoing construction untenable as a matter of law, that is, wholly implausible. We find no such impediments in the other relevant provisions of the statute. If anything, resort to other provisions of the statute only serves to muddy the proverbial waters as to precisely what the legislature intended when it referred to a defendant having been convicted of misdemeanor DUII “for a third time.”

For example, another provision in the same bill from which the disputed language in this case originated refers to “the third” conviction. Or Laws 2003, ch 346, § 1 (emphasis added). Specifically, the portion of the bill that was codified at ORS 813.400(2), pertaining to the authority of the Department of Transportation to revoke driving privileges, provides that “a person convicted of misdemeanor driving while under the influence of intoxicants for the third time[ ] is subject to revocation of driving privileges as provided in ORS 809.235.” Id. It certainly is true that the use of the definite article often is understood to signify an intention to refer to a specific object, e.g., Steelman-Duff, Inc. v. Dept. of Transportation, 323 Or 220, 227, 915 P2d 958 (1996), which would tend to support the notion that, in referring to the third conviction, the legislature intended in that case to refer to the third— and only the third — in a sequence.

The problem is that ORS 809.235(l)(b) does not employ the same phrasing. It employs the indefinite article “a” in its reference to a person having been convicted “for a third time.” Ordinarily, we assume that such differences in statutory phrasing are intentional. See, e.g., Dept. of Transportation v. Stallcup, 341 Or 93, 101, 138 P3d 9 (2006) (determining that use of different terms in real estate appraisal statute suggests that each was intended to have a different meaning); State v. Glaspey, 337 Or 558, 564-65, 100 P3d 730 (2004) (stating that use of different terms in assault statute — “victim” in one provision and victim’s “child” in the other — means that one is not the same as the other). And, more to the point, we ordinarily assume that the use of the *31indefinite article, as opposed to the definite article, has legal significance. See, e.g., Carroll and Murphy, 186 Or App 59, 68, 61 P3d 964 (2003) (providing that the legislature uses “a,” as an indefinite article, to refer to an unidentified, undetermined, or unspecified object and uses “the” to indicate the intention to refer to a definite object).

For another example, there is a second provision of the same bill from which ORS 809.235(l)(b) originated, this one referring to a subsequent conviction without any particular article — definite or indefinite. Or Laws 2003, ch 346, § 4. The effective date provision of the original bill declares that the law applies “to persons whose third conviction of misdemeanor driving while under the influence of intoxicants occurs on or after the effective date” of the enactment. Id. To the extent that there are indeed differences between the reference in ORS 813.400(2) to conviction for DUII “for the third time,” on the one hand, and in ORS 809.235(l)(b) to such conviction “for a third time,” on the other, it is not at all clear which of the two provisions the effective date provision refers to, as it employs no article one way or the other.

In short, nothing in the context forecloses the state’s construction of ORS 809.235(l)(b) — that is, that, in referring to a person having been convicted of misdemeanor DUII “for a third time,” the legislature intended the statute to refer to having been convicted at least three times. As a result, it is necessary to consult the legislative history to determine which among the competing constructions is the one that the legislature most likely intended.

In our view, resort to the legislative history makes disposition of that question fairly easy. To be sure, there is nothing in the legislative history that speaks directly to the issue of statutory construction that we confront in this case. But the repeated statements as to the purpose of the legislation leave little doubt as to which interpretation the legislature most likely intended. See, e.g., State v. Shaw, 338 Or 586, 605-06, 113 P3d 898 (2005) (examining legislative history to determine general purpose of a statute to resolve ambiguity in one of its provisions).

In brief, the legislature repeats — over and over again — that the principal focus of the bill that became the *32disputed provision of ORS 809.235(l)(b) was to “crack down” on repeat DUII offenders. Representative Barker, for example, a chief sponsor of the bill, explained that

“I introduced this bill, brought this bill forward, that would revoke driving privileges after a third conviction of driving under the influence. At the present time, it’s four convictions. And * * * to keep it really brief, the only objections I’ve heard about this so far at town halls and so on in meetings with citizens in my district is they can’t imagine why we’re waiting for the third time, why it isn’t done sooner.”

Tape Recording, House Committee on Judiciary, HB 2885, Apr 3, 2003, Tape 123, Side A (statement of Rep Jeff Barker).

In the same hearing, a member of Mothers Against Drunk Driving, one of the principal supporters of the bill, explained:

“Most people who get stopped for DUII have driven drunk many times, as has previously been stated, before they are caught. A third conviction for DUII therefore equates to more incidences of driving under the influence than I would like to think about. By the time the driver, the drunk driver, gets a third conviction, that person has established habits and may have already killed or injured someone in a crash. * * * This bill will send a clear signal that we are serious about reducing drinking and driving. In order to change the attitudes about drinking and driving, we must make our laws tougher and continue with educational programs. Second-time offenders need to receive a strong and clear warning about the consequences of their third conviction after we pass this House bill.”

Id. (statement of Bruce Pratt).

A legislative analyst for the City of Eugene, which also supported the bill, testified that

“[ajnyone who has been convicted of misdemeanor DUII for the third time has demonstrated a callous disregard for the safety of others on the roadway. This bill has the potential to be an additional deterrent to prevent people from driving while under the influence or will, at least, remove from the road those individuals who persist in driving while impaired.”

*33Exhibit E, House Committee on Judiciary, HB 2885, Apr 3, 2003 (letter from Seth T. Karpinski).

A legislative analyst for the governor’s advisory committee on DUII also testified in support of the bill, noting that, in 2001, nearly 300 people had been “convicted for the 4th or more times of driving under the influence of intoxicants,” of whom only 58 were convicted under the current law. The analyst similarly noted that, in the following year, “266 people were convicted for the 4th time or more,” while “143, or approximately only 50 percent, were convicted under the current felony law.” Exhibit F, House Committee on Judiciary, HB 2885, Apr 3, 2003 (letter from Gretchen McKenzie).

We could go on, but we think that the gist of the legislative history is clear. In fact, there are tidbits of that history that are tantalizingly close to the issue at hand: Representative Barker refers to the bill as applying “after a third conviction,” and the representative of the governor’s advisory committee actually refers to people who have been convicted “for the 4th time or more.” (Emphasis added.) But we need not claim that much from the history. It is sufficient to observe that the purpose of the bill, as reflected in statements such as the ones that we have quoted, is the legislature’s concern with increasing penalties for repeat DUII offenders. Taking that purpose into account, it seems plain that the legislature intended the construction of the statute proposed by the state. Indeed, the construction proposed by defendant runs counter to the purpose of the statute as revealed in the foregoing legislative history.

Even assuming that the legislative history is not sufficiently illuminating of the legislature’s intentions, all that means is that we resort to canons of construction to resolve the ambiguity. In our view, any number of canons could be called into service, each of which would confirm our conclusions as to the intended meaning of the statute.

For example, the absurd results canon immediately comes to mind. State v. Vasquez-Rubio, 323 Or 275, 282-83, 917 P2d 494 (1996). As the state points out, it is difficult to envision a policy that explains why the legislature would *34want to impose a less harsh penalty for a greater number of prior DUII convictions.

The canon calling for avoidance of constitutional issues also comes to mind. State v. Stoneman, 323 Or 536, 540 n 5, 920 P2d 535 (1996); State v. Lanig, 154 Or App 665, 674, 963 P2d 58 (1998). Under that canon, the argument would be that reading the statute as defendant proposes would produce unconstitutionally disproportionate sentences. We do not suggest that such an argument would prevail, but the avoidance canon is commonly invoked when there is even a tenable argument of unconstitutionality. Westwood Homeowners Assn., Inc. v. Lane County, 318 Or 146, 160, 864 P2d 350 (1993), adh’d to as modified on recons, 318 Or 327, 866 P2d 463 (1994) (rejecting proposed interpretation that “arguably would infringe on the constitutional rights” of parties).

Finally, there is the much-cited canon that, when all else fails, we attempt to do what the legislature most likely would have done had it thought of the specific issue. Carlson v. Myers, 327 Or 213, 225, 959 P2d 31 (1998). On that question, there can be no debate. Given the wording of the statute and the repeated statements of general policy that appear in the legislative history, it seems clear that the legislature would favor the interpretation proposed by the state — that a defendant having been convicted of misdemeanor DUII “for a third time” means for at least three times.

The dissent insists that defendant is correct and that the wording of ORS 809.235(l)(b) is unambiguous. The dissent complains that, in setting out the relevant standard for determining the existence of an ambiguity, we have “set[ ] the bar too low” by determining that the statute is susceptible to more than one interpretation “based solely on the shades of the dictionary meaning” of the word “third.” The dissent argues that we should forbear from examining the legislative history of the statute because its meaning is “plain.” 217 Or App at 45 (Sercombe, J., dissenting).

To begin with, the dissent attacks a straw man, as our analysis is based not only on dictionary definitions of the statutory term in a vacuum but also on the manner in which that term is employed in its context, including other portions *35of the statute and related statutes. Moreover, and more important, the dissent’s insistence that “a stronger case” for ambiguity should be required before examining legislative history recalls a similar argument leveled in Lipscomb v. State Bd. of Higher Ed., 305 Or 472, 484-85, 753 P2d 939 (1988), which the Supreme Court rejected in the following terms:

“[Defendants] argue that resort to legislative history is improper when the meaning of the text is ‘plain’ or ‘unambiguous.’

“This and similar formulations are often recited, but in practice they do not and should not confine the court to historically blind exegesis. * * * When one side to a dispute over the meaning of a public law urges a court not to look at or consider materials presented by the other side for its reading of the law, this only invites doubt whether the materials might show that the ‘plain meaning’ is not so plain after all. That is the case here.

“In practice, also, courts rarely see disputes over interpretation when the opposing party cannot show a possible alternative reading of the words, which it claims to be correct in context.”

(Footnotes omitted.) The court’s observations in Lipscomb apply with equal force to the arguments in this case.2

In asserting that the meaning of ORS 809.235(l)(b) is plain, the dissent places particular reliance on the provisions of other statutes that we have mentioned, one of which *36refers to a defendant having been convicted of misdemeanor DUII for “the third time” and the other of which provides that the relevant portions of ORS 809.235(l)(b) apply to defendants “whose third conviction” occurs after the effective date of the enactment. The dissent insists that those other provisions remove all doubt that, when the legislature said in ORS 809.235(l)(b) that revocation of driving privileges is required when a defendant has been convicted of misdemeanor DUII “for a third time,” what the legislature really meant was “for the third time.” 217 Or App at 43 (Sercombe, J., dissenting). As we have already explained, however, at the very least, the differences in phrasing between the statutes suggest some doubt about what the legislature really intended.

The dissent also emphasizes the fact that other statutes pertaining to DUII employ the phrase “third or subsequent conviction,” e.g., ORS 813.010(6)(c), thereby giving rise to an inference that the legislature knows how to say that when it so intends. 217 Or App at 43-45 (Sercombe, J., dissenting). There is no question but that there are such examples in the DUII statutes. As we have noted, however, there are also examples in other statutes in which the legislature has employed phrasing similar to that used in ORS 809.235(l)(b) plainly to refer to a particular or subsequent conviction. Aside from that, although the bare fact that the legislature has used such phrasing permits an inference that its failure to do so in ORS 809.235(l)(b) is significant, it is another thing to suggest that it demonstrates conclusively that a contrary interpretation is wholly implausible. See, e.g., State v. Robison, 202 Or App 237, 242, 120 P3d 1285 (2005) (The fact that the legislature employed certain phrasing in one statute, but not another, permits an inference that the omission was intentional, “[b]ut we cannot say that the text speaks conclusively in that regard.”).

We conclude that the phrasing of ORS 809.235(l)(b) is ambiguous but that resort to legislative history and other aids to construction make clear that the trial court did not err in interpreting the statute to require permanent revocation of defendant’s driving privileges based on his three prior misdemeanor DUII convictions.

Affirmed.