Full Opinion (html_with_citations)

562                December 20, 2023             No. 662

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
          IRINA GENNADYEVNA KNOWLES,
                  Defendant-Appellant.
              Lincoln County Circuit Court
                  21CR39864; A179041

  Joseph C. Allison, Judge pro tempore.
  Submitted November 16, 2023.
  Adam Kimmell filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Lagesen, Chief
Judge, and Kamins, Judge.
  TOOKEY, P. J.
  Affirmed.
Cite as
329 Or App 562
 (2023)   563
564                                                         State v. Knowles

           TOOKEY, P. J.
        Defendant was charged by indictment with driv-
ing under the influence of intoxicants (DUII), in violation of
ORS 813.010 and ORS 813.011. The indictment alleged that
defendant had two prior California convictions, which would
have the effect of elevating the charged offense to a felony
under ORS 813.011.1
         In a demurrer, defendant acknowledged the two
prior California convictions but asserted that one of those
convictions does not qualify as predicate conviction under
ORS 813.011. The trial court rejected defendant’s demurrer,
and defendant entered a conditional guilty plea to felony
DUII.
         On appeal, defendant assigns error not to the denial
of her demurrer but to her conviction. She continues her
assertion that one of the prior California convictions alleged
in the indictment does not qualify as a predicate conviction
to elevate the offense to a felony under ORS 813.011. She
seeks a reversal of the judgment convicting her of a felony
and entry of a judgment of conviction for a misdemeanor
under ORS 813.010.

    1
      ORS 813.011 elevates the offense of DUII to a felony when the defendant
has prior qualifying convictions:
         “(1) Driving under the influence of intoxicants under ORS 813.010 shall
    be a Class C felony if at least two times in the 10 years prior to the date of
    the current offense the defendant has been convicted of any of the following
    offenses in any combination:
         “(a) Driving under the influence of intoxicants in violation of ORS
    813.010, or its statutory counterpart in another jurisdiction.
         “(b) A driving under the influence of intoxicants offense in another juris-
    diction that involved the impaired driving or operation of a vehicle, an air-
    craft or a boat due to the use of intoxicating liquor, cannabis, a controlled
    substance, an inhalant or any combination thereof.
         “(c) An offense in another jurisdiction that involved driving or operating
    a vehicle, an aircraft or a boat while having a blood alcohol content above that
    jurisdiction’s permissible blood alcohol content.
         “(2) Once a person has been sentenced for a Class C felony under this sec-
    tion, the 10-year time limitation is eliminated and any subsequent episode of
    driving under the influence of intoxicants shall be a Class C felony regardless
    of the amount of time which intervenes.
         “(3) Upon conviction for a Class C felony under this section, the person
    shall be sentenced to a mandatory minimum term of incarceration of 90 days,
    without reduction for any reason.”
Cite as
329 Or App 562
 (2023)                                                  565

         The state contends that defendant’s challenge to
whether the California conviction can constitute a predicate
conviction under ORS 813.011 was not preserved. The state
asserts that the trial court’s adverse ruling on defendant’s
demurrer, which is the only ruling that defendant reserved
for appeal on her conditional guilty plea, addressed only
whether the indictment, which alleged two California DUII
convictions, was sufficient on its face to establish felony
DUII. But in the state’s view, defendant did not preserve a
challenge as to whether the state could prove that defendant
had two qualifying prior convictions.
         As the state correctly points out, a demurrer chal-
lenges only the legal sufficiency of the face of the indictment.
ORS 135.630(4) (A defendant “may demur to the accusatory
instrument when it appears upon the face thereof * * * [t]hat
the facts stated do not constitute an offense[.]”); State v.
Cervantes,
232 Or App 567, 573
,
223 P3d 425
 (2009) (A court
ruling on a demurrer “may consider only the information
alleged in the indictment”). Here, the indictment alleged
two predicate California convictions and did not cite the
statutes under which defendant was convicted. The indict-
ment was legally sufficient on its face to charge defendant
with felony DUII.
        Thus, the state is technically correct that the trial
court would not have erred in rejecting a challenge to the
indictment by demurrer on that basis.
         However, the state did not raise that argument
against the demurrer below, and the trial court did not reject
the demurrer on that basis. Instead, with the parties’ agree-
ment, the trial court treated defendant’s argument based
on the adequacy of the predicate California offense as prop-
erly before it as if “in arrest of judgment.” Thus, the state
acquiesced in the trial court’s consideration of defendant’s
arguments on the demurrer. Assuming, without deciding,
that the trial court could properly address the argument
raised by the demurrer pretrial, we conclude for the reasons
explained below that the trial court did not err in rejecting
defendant’s contention on its merits.2
    2
      We agree with defendant that the argument is “preserved,” in the sense that it
was raised below. At the hearing on defendant’s demurrer, the state asserted that the
566                                                           State v. Knowles

       ORS 813.011 elevates the offense of DUII to a felony
when the defendant has prior qualifying convictions:
        “(1) Driving under the influence of intoxicants under
    ORS 813.010 shall be a Class C felony if at least two times
    in the 10 years prior to the date of the current offense
    the defendant has been convicted of any of the following
    offenses in any combination:
        “(a) Driving under the influence of intoxicants in viola-
    tion of ORS 813.010, or its statutory counterpart in another
    jurisdiction.
        “(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 sub-
    stance, an inhalant or any combination thereof.
       “(c) An offense in another jurisdiction that involved
    driving or operating a vehicle, an aircraft or a boat while
    having a blood alcohol content above that jurisdiction’s per-
    missible blood alcohol content.”
It is undisputed that defendant’s prior California convic-
tions were under California Vehicle Code (Cal Veh Code),
section 23152(b), which provides, as relevant:
       “It is unlawful for a person who has 0.08 percent or
    more, by weight, of alcohol in his or her blood to drive a
    vehicle.”

demurrer was untimely, because it had not been asserted at arraignment. In collo-
quy, the court and the attorneys discussed whether the demurrer should be rejected
on that basis or allowed to go forward as if raised after trial “in arrest of judgment.”
ORS 135.640 (“When the objections mentioned in ORS 135.630 appear upon the face
of the accusatory instrument, they can only be taken by demurrer, except that the
objection to the jurisdiction of the court over the subject of the accusatory instru-
ment, or that the facts stated do not constitute an offense, may be taken at the trial,
under the plea of not guilty and in arrest of judgment.”). The parties agreed to allow
the court to consider the merits of the demurrer. The record shows that defendant’s
arguments at the hearing presented the same legal contention raised on appeal that
one of defendant’s California convictions could not be a predicate for a felony des-
ignation under ORS 813.011. We understand the court’s ruling on the demurrer to
have been based on a rejection of that argument. Thus, although not presented in the
proper posture, the exact question that defendant raises on appeal was presented to
the court below and decided. For that reason, we conclude that the purposes of pres-
ervation have been satisfied. See State v. Amaya,
336 Or 616, 629
,
89 P3d 1163
 (2004)
(“The purpose of the preservation rule is the practical one of requiring a defendant to
provide an explanation of his or her position specific enough to ensure that the trial
court can identify its alleged error with enough clarity to permit it to consider and
correct the error immediately, if correction is warranted.”).
Cite as
329 Or App 562
 (2023)                                  567

         We need not reach the state’s contention that Cal Veh
Code § 23152(b) is a statutory counterpart to ORS 813.010,
under ORS 813.011(1)(a) and State v. Guzman/Heckler,
366 Or 18
,
455 P3d 485
 (2019). That is because we conclude that
defendant’s conviction under Cal Veh Code § 23152(b) was
for an offense “that involved driving or operating a vehicle,
an aircraft or a boat while having a blood alcohol content
above that jurisdiction’s permissible blood alcohol content.”
ORS 813.011(1)(c). The California conviction therefore serves
as a predicate for an elevation of defendant’s Oregon DUII
conviction to a felony.
        Defendant asserts that her California conviction
is not a predicate offense, because the California statute
provides that a person’s blood alcohol content (BAC) of .08
at the time of driving can be established by a rebuttable
presumption
   “that * * * the person had 0.08 percent or more, by weight, of
   alcohol in his or her blood at the time of the performance of
   a chemical test within three hours after the driving.”
Cal Veh Code § 23152(b). In that way, defendant argues, the
presumption allows a conviction without proof that the per-
son’s BAC was .08 or higher while driving.
          We reject defendant’s contention. A conviction under
Cal Veh Code § 23152(b) requires proof that a person drove
with a BAC of .08 or more. The rebuttable presumption
establishes only a means by which the prosecution can prove
that the person drove with a BAC of .08 or more. A convic-
tion under Cal Veh Code § 23152(b) therefore is a convic-
tion that involves “driving or operating a vehicle * * * while
having a blood alcohol content above” California’s permis-
sible blood alcohol content. ORS 813.011(1)(c). Having been
convicted under Cal Veh Code § 23152(b), defendant has a
conviction for driving while having a blood alcohol content
above California’s legal limit. The trial court therefore did
not err in determining that defendant’s conviction can serve
as a predicate for elevation of her Oregon DUII conviction to
a felony.
         Affirmed.