State v. Sanchez-Cacatzun

                                      650

        Argued and submitted January 17, 2019, affirmed June 17, 2020


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  JOSE SANCHEZ-CACATZUN,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      17CR01224; A165184
                                  

    Defendant appeals a judgment of conviction for criminal driving while suspended or revoked. Defendant assigns error to the trial court’s refusal to let
him argue to the jury that he did not receive adequate notice of the suspension
because the oral notice that he received of the suspension was given to him in a
language that he did not understand. Defendant also assigns error to the trial
court’s refusal to provide a jury instruction that would have defined “notice”
for purposes of ORS 811.180(1)(b). Held: Because defendant challenges only the
oral information that he received from the officer, and that information did not
include information about his license suspension, any error in preventing him
from making that argument to the jury was harmless. Further, defendant was
not entitled to receive his proposed jury instruction because it was not a correct
statement of the law.
    Affirmed.



    Eric Butterfield, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Christopher A. Perdue, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Powers, Presiding Judge, and Egan, Chief Judge,
and James, Judge.
    EGAN, C. J.
    Affirmed.
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           EGAN, C. J.
         Defendant appeals a judgment of conviction for
criminal driving while suspended or revoked (DWS), ORS
811.182(4)(b).1 Defendant speaks little English, and he sought
to raise as an affirmative defense that he did not receive
adequate notice that his license was suspended because he
received notice of the suspension only in English. See ORS
811.180(1)(b) (2017) (establishing an affirmative defense
based on lack of notice of suspension).2 Defendant assigns
error to the trial court’s refusal to let him argue to the jury
that he did not receive adequate notice of the suspension
because the oral notice that he received of the suspension
was given to him in a language that he did not understand.
Defendant also assigns error to the trial court’s refusal to
provide a jury instruction that would have defined “notice,”
for purposes of ORS 811.180(1)(b), as notice that “under the
circumstances and conditions would apprise [defendant] of
an impending action and afford [defendant] an opportunity
to present [his] objections.” We conclude that, because defendant challenges only the oral information that he received
from the officer, and that information did not include information about his license suspension, any alleged error in
preventing him from making that argument to the jury
was harmless. Further, we conclude that defendant was not
entitled to receive his proposed jury instruction because it
would have incorrectly instructed the jury on the law by
defining adequate notice under the affirmative defense statute as notice that did not “afford [defendant] an opportunity
to present [his] objections.” Accordingly, we affirm.
        We begin by providing a brief overview of the relevant statutes to provide context to the parties’ arguments.
When a “person … operates a motor vehicle upon premises
open to the public or the highways [in Oregon, the person]

     1
       Subsequent to the pertinent events of this case, ORS 811.182 was amended.
Or Laws 2018, ch 76, § 13. Because the amendments do not affect our analysis,
all references to the statute throughout this opinion are to the current version of
the statute.
     2
       Subsequent to the pertinent events of this case, ORS 811.180 was amended.
Or Laws 2019, ch 312, § 25. All references to the statute throughout this opinion
are to the 2017 version of the statute that was in effect at the time of the incident
in this case.
652                                          State v. Sanchez-Cacatzun

shall be deemed to have given consent, subject to the implied
consent law, to a chemical test of the person’s breath” if the
person is arrested for driving under the influence of intoxicants (DUII). ORS 813.100(1). The implied consent law, ORS
813.100(2),3 provides, in relevant part, that
    “if a breath test under this section discloses that the person, at the time of the test, had a level of alcohol in the
    person’s blood that constitutes being under the influence
    of intoxicating liquor under ORS 813.300 and the person
    has been informed of rights and consequences as provided
    under ORS 813.130, the person’s driving privileges are subject to suspension ….”
          Before the breath test is administered, the person
“shall be informed of [the] [rights and consequences] as
described under ORS 813.130.” ORS 813.100(1). Further, if
the person fails the breath test, the arresting officer “shall
… [p]rovide the person with a written notice of intent to
suspend” that “informs the person of [rights and consequences] as described under ORS 813.130.” ORS 813.100
(2)(b).
        DWS is a strict liability offense—the statute does
not require proof of any culpable mental state—but “drivers who were not notified of the suspension may raise an
affirmative defense under ORS 811.180.” State v. Click, 

, 

 (1988). Relevant to this case, ORS
811.180(1)(b) provides that it is an affirmative defense that
    “The defendant had not received notice of the defendant’s
    suspension or revocation or been informed of the suspension or revocation by a trial judge who ordered a suspension
    or revocation of the defendant’s driving privileges or right
    to apply.”
        ORS 811.180 also describes certain circumstances
“when the affirmative defenses are not available.” ORS
811.180(2). One of those circumstances is if “[t]he defendant
was provided with notice of intent to suspend under ORS

     3
       The relevant sections of the implied consent law referenced in this opinion
were amended after the pertinent events of this case. Or Laws 2019, ch 475, §§ 1, 2.
Because those amendments do not affect the analysis in this case, all references
to the implied consent statutes throughout this opinion are to the current version
of the statutes.
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813.100,” the implied consent law. ORS 811.180(2)(e). In its
case-in-chief, the prosecution may offer evidence to establish that an affirmative defense is not available to the defendant. ORS 811.180(2).
         Because the notice of intent to suspend form is particularly relevant to the analysis in this case, we set out
the form in some detail below. The notice of intent to suspend form, or Implied Consent Combined Report, is a standardized, two-page form. The first page of the form provides
information that, as relevant to this appeal, if the person
has failed the breath test, the person’s “driving privileges
will be suspended at 12:01 A.M. on the 30th day after the
date of arrest.” The first page also indicates the reason for
the suspension (breath test refusal or failure) and the duration of the suspension. The second page of the form conveys
the information that is required under ORS 813.100 and
ORS 813.130, and is split into three sections: “Section I,”
“Section II,” and “Hearing Requests.”
         The only relevant part of the second page of the
implied consent form is Section I, which is further classified by subsections (a) through (i). Those subsections include
information about how a person can fail a breath test, that
the person’s license is “subject to suspension” if the person
fails a breath test, and that, if the person fails a breath test,
the person is entitled to a hearing to challenge the suspension before the suspension takes effect and the eligibility
requirements for a hardship permit. The rights and consequences related to the license suspension on the second page
of Section I of the form read:
   “SECTION I (Read to driver in ALL cases)
   “…
   “(c) Your driving privileges will not be suspended if you
   submit to any test requested and do not fail. If you refuse
   a test or fail a breath or blood test, your driving privileges
   are subject to suspension for each test refusal or failure. The
   outcome of a criminal charge for driving while under the
   influence of intoxicants will not affect the implied consent
   suspension(s). Suspension for refusing a test is substantially longer than suspension for failing a test.”
654                                            State v. Sanchez-Cacatzun

(Boldface and uppercase in original; emphasis added.) The
purpose of informing the person of the rights and consequences of failing or refusing a breath test before it is
administered is to “coerce a driver’s submission to take the
tests; it is not to inform the driver of the specifics of the law.”
State v. Cabanilla, 

, 

 (2012).
         We now turn to the facts, which, unless otherwise noted, are undisputed. Defendant’s native language
is K’iche’, and he also speaks Spanish. Defendant’s comprehension of and ability to speak English is limited.
        On October 29, 2016, Officer McCarver arrested
defendant for driving under the influence of intoxicants.
Defendant failed a breath test, and his license was subsequently suspended. In December, Officer Wolf stopped
defendant for a traffic violation and learned that his license
was suspended. Defendant was subsequently charged with
criminal DWS pursuant to ORS 811.182(4).
         Before trial, defendant filed a notice of intent to rely
upon the affirmative defense that he did not receive notice
that his license was suspended because he received the
notice in English, a language that he did not understand.
ORS 811.180(1)(b). Defendant conceded that his license was
suspended, but he argued that adequate notice under the
affirmative defense statute must be consistent with the
Due Process Clause of the Fourteenth Amendment to the
United States Constitution.4 Accordingly, defendant sought
two relevant pretrial rulings. Relying on Mullane v. Central
Hanover Bank & Tr. Co., 

, 

, 

 (1950), defendant first requested a special jury instruction defining notice as “notice that under the circumstances
and conditions that would apprise the affected individual
of an impending action and afford them an opportunity to
present their objections.” Second, defendant sought to argue
to the jury that defendant did not receive adequate notice
that his license was suspended because the information
that he had received from McCarver was given to him in a
language that he did not understand, which left him “in a
     4
       The Due Process Clause of the Fourteenth Amendment provides that “no[ ]
… State [shall] deprive any person of life, liberty, or property, without due process of law.” US Const, Amend XIV, § 1.
Cite as 

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position unable to assert his rights or to challenge the state
action.” Defendant argued that the statute requires that
the person “actually receive notice” in such a way that the
person “understand[s] that they do have those rights and
consequences.”
         The state objected to defendant’s special instruction
and his request to argue lack of notice based on the language barrier. The state argued that, because defendant’s
affirmative defense based on lack of notice was only available if defendant did not receive the implied consent form,
ORS 811.180(2)(e), defendant’s lack of notice arguments
must be limited to whether he received the form. The state
argued that the affirmative defense statute did not allow
defendant to make a “collateral attack on the validity of
the notice because of the language that it was provided in.”
The trial court declined to give defendant’s requested jury
instruction, ruling that “[the] standard instructions [were]
adequate,” and also denied defendant’s motion to argue the
language barrier issue to the jury.
         At trial, the factual dispute between the parties
centered on whether McCarver provided defendant with
either verbal or written notice that his license would be
suspended because he failed a breath test. McCarver testified that, after defendant was arrested for DUII, McCarver
transported defendant to the jail and asked defendant if
he would take a breath test. Before administering the test,
McCarver read “[(a) through (i)]” of Section I on the second
page of the implied consent form.5 McCarver read Section I
on page two of the form “verbatim” in English.
         Defendant failed the breath test and, as a result,
McCarver filled out page one of the implied consent form,
also in English, indicating that defendant had failed a breath

     5
       On direct examination in the state’s case-in-chief, McCarver initially gave
confusing testimony when he indicated that he had read the implied consent
form to defendant without specifying which page of the form he had read, and
implied that what was read to defendant included the information from page one
that defendant’s license had been suspended. However, his testimony later in
the direct examination clarified that he read only the “back of the form,” which
contains all the information about a defendant’s “rights and responsibilities,”
to defendant. In the state’s rebuttal, McCarver further clarified that he read
(a) through (i) of Section I on the back of the form.
656                              State v. Sanchez-Cacatzun

test and that his license would be suspended at 12:01 a.m.,
on the 30th day after the date of arrest, for a period of 90
days.
         McCarver testified that he physically provided both
pages of the implied consent form to defendant. McCarver
stated that he did not remember whether he had physically
handed defendant the form, but he was “absolutely sure”
that he had “provided it” to him. McCarver testified that,
when an arrestee is in handcuffs, he “bring[s] the form over
to them and … explain[s] what it is and that it was the
form that [he] had just read to them a few minutes prior,”
and that he would be placing it with their property that gets
placed in a bin. McCarver also noted in his report documenting the incident that he had “provided [defendant] with
a copy of the Implied Consent form.”
         Defendant, on the other hand, testified through an
interpreter that McCarver did not read the implied consent
form to him, tell him that his driver’s license would be suspended for 90 days at 12:01 a.m. on the 30th day after the
date of his arrest, or show him any form indicating that
his license would be suspended. Defendant testified that
the only documents that he received when he left the jail
were “a white piece of paper that said the date [he] had
to go to court” and a paper that “stated the balance of the
money on … the card” they gave him, which included the
amount of money he had with him when he arrived at the
jail.
         Although the trial court had ruled that evidence
of the language barrier issue was not admissible, on direct
examination, the state elicited testimony from Wolf that
there had been “a language barrier” between Wolf and
defendant. On cross-examination, Wolf testified that Wolf
spoke to defendant in English, but defendant responded to
Wolf in what Wolf assumed was Spanish and some English
words. Wolf testified that defendant appeared to understand
“some English,” but that a second officer responded to provide interpretive services for Wolf. Before the second officer
arrived, defendant communicated to Wolf that he did not
have a driver’s license and handed Wolf an “international
translation of a driver’s license.”
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        During closing arguments, defendant explained that
the only issue that the defense was contesting was whether
defendant had received notice that his license was suspended. In summarizing the evidence, defendant argued
that notice was insufficient because McCarver had read the
implied consent form to defendant at 3:30 a.m., and he highlighted the conflicting evidence on whether McCarver had
physically given defendant the written notice of intent to
suspend. Defendant then argued:
       “I think it’s also important that we look at another reason to doubt, which is going to December 30th, the second
    time that Mr. Sanchez-Cacatzun was arrested. You heard
    Officer Wolf testify, and you heard how there were language barriers.
        “…
    “You can use your common sense and reason to consider those language barriers in determining whether
    Mr. Sanchez-Cactzun ever—
        “…
       “… [H]ow that could impact the [inaudible] in this
    case.”6
         The jury was given the standard jury instruction
for the affirmative defense of lack of notice, including when
the affirmative defense was not available, which largely
mirrored the language of the statute. The jury convicted
defendant of driving while suspended.
         On appeal, defendant argues that the trial court
erred in failing to give defendant’s requested jury instruction and limiting defendant’s argument because notice
under ORS 811.180(1)(b) requires defendant to have had
actual notice of his license suspension. And, without actual
notice of his license suspension, defendant was entitled to
raise the defense. Defendant also argues that notice under
ORS 811.180(1)(b) “is due-process notice,” and to satisfy
due process, notice must be “reasonably calculated, under
all the circumstances, to apprise interested parties of the
    6
      During that portion of defendant’s argument, the state made two objections, arguing that it was not a proper statement of the law. Defendant responded
that the state had opened the door, and the judge overruled both objections.
658                                          State v. Sanchez-Cacatzun

pendency of the action and afford them an opportunity to
present their objections.” During oral argument, defendant
clarified that he was “attacking purely the oral information
that [defendant] received” from the officer and that he was
not attacking the written implied consent form.7 Defendant
concedes that, if the jury found that defendant had received
the written form, then he would not prevail on the notice
issue under ORS 811.180(2)(e). However, because the question of whether the officer provided defendant with the written form was contested and, thus, the jury could find that
the officer did not provide defendant with the written form,
defendant contends that he should have been allowed to
argue to the jury that the oral notice of defendant’s suspension was inadequate due to the language barrier.
         The state disagrees that the statute requires actual
notice, contending that we need only look to subsection (2)
of the same statute for evidence of what “notice” in subsection (1) means. And, under ORS 811.180(2)(e), the defense is
unavailable if defendant was provided with the written notice
of intent to suspend under ORS 813.100 of the implied consent
statutes, which do not require actual notice. So, in the state’s
view, physically handing the form to defendant, so long as
the form contains the rights and consequences as required
by the implied consent laws, is all that is required to provide
defendant sufficient notice under ORS 811.180(1)(b).
         The state disagrees that the statute incorporates
the due process standard for notice. The state contends that,
nonetheless, due process does not require the state to translate notice of license suspensions into a language that the person understands.8 The state also argues that, even if the court
erred, any error was harmless because defendant was nonetheless able to argue the language barrier issue to the jury.

     7
       Before the trial court, defendant seemed to take the opposite view when
he indicated that he was only challenging the written implied consent form and
stated that “the very narrow issue that the defense is arguing … is … that
subsection [(e) of ORS 811.180] requires that notice be given, and all [the defense
is] arguing … is that a document not provided in a language [the person understands] is not notice.” However, the record reflects that defendant additionally
challenged the information that the officer provided orally.
     8
       During oral argument, the state conceded that a defendant may be able to
raise an as-applied or facial challenge to the affirmative defense statute.
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         As a preliminary issue, we understand defendant to
be arguing only that the term “notice” in ORS 811.180(1)(b)
incorporates the federal standard for adequate notice under
the Due Process Clause. See Mullane, 

 (“An
elementary and fundamental requirement of due process in
any proceeding which is to be accorded finality is notice reasonably calculated, under all the circumstances, to apprise
interested parties of the pendency of the action and afford
them an opportunity to present their objections.”). We do not
understand defendant to argue that the affirmative defense
statute, as applied to the facts of this case or on its face,
violates the Due Process Clause.9 See, e.g., City of Eugene
v. Lincoln, 

, 

 (2002) (explaining that “[a] facial challenge asserts that lawmakers violated the constitution when they enacted the ordinance;
an as-applied challenge asserts that executive officials,
including police and prosecutors, violated the constitution
when they enforced the ordinance”). Accordingly, we limit
our analysis to the meaning of “received notice” under ORS
811.180(1)(b).

         We begin by addressing whether the trial court
erred in prohibiting defendant from arguing to the jury that
he did not receive adequate notice of his suspension due to

     9
       In defendant’s brief, he stated that “all of defendant’s appellate arguments
relate to the interpretation of [the affirmative defense statute.]” However, during
oral argument, defendant added that his arguments were “entirely fact-specific”
and that he was arguing, on the facts of this case, that the officer should have
made an effort to communicate with defendant in Spanish. Defendant stated
that he was not arguing that an officer in every case should have to interpret for
a particular defendant, but only that whether an officer should have to interpret
for a particular defendant is a factual dispute for the jury to decide. Moreover,
in response to the state contending during oral argument that an as-applied or
facial challenge to the affirmative defense statute was not at issue in this case,
defendant responded in rebuttal that he disagreed. Defendant argued that he
had raised a due process challenge in the trial court and on appeal, and thus,
even if the state is correct about its statutory construction of the affirmative
defense statute, defendant preserved his stand-alone due process claim. To the
extent that defendant was attempting to raise an as-applied challenge to the
affirmative defense statute during oral argument, even assuming that that argument was preserved, we decline to address an undeveloped argument raised for
the first time during oral argument. See Ailes v. Portland Meadows, Inc., 

, 

 (1991) (“Generally, before an appellate court may address
whether a trial court committed an error …, the adversely affected party must
have preserved the alleged error in the trial court and raised the issue on appeal
by an assignment of error in its opening brief.”); ORAP 5.45(1).
660                                 State v. Sanchez-Cacatzun

the language barrier. Generally, we review a trial court’s
ruling to limit argument for abuse of discretion. State v.
Fletcher, 

, 

 (2014). However,
when the court’s decision to limit argument is based on a
legal determination, as it was in this case, we review the
court’s decision for legal error. See State v. Rogers, 

, 

 (2000) (applying legal error standard of review instead of abuse of discretion when challenge
was to the trial court’s legal ruling to exclude evidence and
explaining that discretion “refers to the authority of a trial
court to choose among several legally correct outcomes. If
there is only one legally correct outcome, then ‘discretion’
is an inapplicable concept”); State v. Hunt, 

, 

 (2015) (“Statutory construction presents
a question of law … which we review for legal error[.]”
(Citations omitted.)); see also Rogers, 

 (“If the
trial court’s decision was within the range of legally correct
discretionary choices and produced a permissible, legally
correct outcome, then the trial court did not abuse its discretion.”); Fletcher, 

 (finding that a trial
court abuses its discretion when it limits argument based on
an incorrect understanding of the law).
         The dispute between the parties centers on the meaning of the phrase “received notice” under ORS 811.180(1)(b).
Ordinarily, we would examine the statute’s text, context,
and, if helpful, legislative history to determine the legislature’s intent. State v. Gaines, 

, 

 (2009). However, here, we need not interpret the statute because, for the following reasons, we conclude that any
alleged error in preventing defendant from making the specific argument he raises on appeal was harmless.
         Under Article VII (Amended), section 3, of the
Oregon Constitution, an appellate court must affirm a conviction, notwithstanding any error, if there is “little likelihood that the particular error affected the verdict.” State v.
Davis, 

, 

 (2003). The court’s inquiry
   “must focus ‘on the possible influence of the error on the
   verdict rendered, not whether this court, sitting as a factfinder, would regard the evidence of guilt as substantial
   and compelling.’ … That inquiry requires us to examine
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   the nature of the error that occurred below and the context
   of that error. … If the particular issue to which the error
   pertains has no relationship to the jury’s determination
   of its verdict, then there is little likelihood that the error
   affected the verdict.”
State v. Gibson, 

, 

, cert den, 

 (2005) (citations omitted).
         In this case, the nature of the error alleged is
that the trial court erroneously prevented defendant from
presenting an argument to the jury. Specifically, defendant sought to argue that the affirmative defense of ORS
811.180(1)(b) applied because he did not receive adequate
notice of his license suspension. The only theory that he
sought to advance in support of that proposition was that
the oral information the officer provided was in a language
that he did not understand.
         The problem with defendant’s argument is that it
is based on an incorrect premise—that the oral information
that the officer gave him could constitute “notice” under the
statute that defendant’s license was suspended. However,
the record shows that the information that the officer gave
to defendant orally did not include the fact that defendant’s
license was suspended.
         Before administering the test, McCarver testified
that he read in English (a) through (i) of Section I of the second page of the implied consent form. Regarding the license
suspension, that form states only that a person’s license is
“subject to suspension” if the person fails a breath test. That
oral information did not purport to inform defendant that he
had failed the breath test and, consequently, that his license
had been suspended, nor could it have. As McCarver testified, and as ORS 813.100(1) commands, Section I is read to
defendants before the test is administered. It was only after
defendant had failed the breath test that McCarver filled
out the first page of the implied consent form, and it is page
one that explains that defendant had failed the breath test
and provides that his license will be suspended.
        Further, nothing in the record establishes that,
after defendant had failed the test, McCarver orally told
662                               State v. Sanchez-Cacatzun

him that his license would be suspended. In discussing
whether he had physically handed both pages of the implied
consent form to defendant, McCarver stated that he did not
remember whether he had physically handed defendant the
form, but that he was “absolutely sure” that he had “provided it” to him. McCarver testified that generally he will
bring defendants the form and will “explain what it is and
that it was the form that [he] had just read to them a few
minutes prior.” Nothing about that testimony indicates
that he orally conveyed to defendant that his license was
suspended as a result of failing the breath test. Although
McCarver stated that he generally tells defendants “what
[the form] is,” that information could have included any or
all of the information in the form. For example, McCarver
could have told defendant that he had failed the breath test
and then simply referred defendant to the form if defendant
wanted to learn more about his rights, or McCarver could
have been more specific and told defendant that his license
would be suspended beginning at “12:01 a.m. on the 30th
day after the date of arrest.” In other words, McCarver’s
broad statement does not indicate how specific or general
McCarver was in explaining “what [the form was].” Further,
as previously explained, because Section I of page two of
the form that McCarver read to defendant does not include
information about the license suspension, McCarver’s testimony that he had communicated to defendant that the form
being placed in the bin was “the form that [he] had just
read to [him] a few minutes prior” does not establish that
McCarver orally provided defendant with information of the
license suspension.
          Defendant sought to argue that, because it was in
English, not Spanish, the oral information from the officer
did not constitute adequate notice of the license suspension under the affirmative defense statute. Defendant does
not contend that the form should have been in Spanish.
Defendant also does not argue that the oral information
that the officer provided was insufficient because it did not
include information that defendant’s license was suspended.
Defendant argues only that the lack of translation of the
officer’s spoken English into Spanish meant that he lacked
notice of the suspension. But the lack of translation could not
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cause a lack of notice under these circumstances, because,
even if the officer’s spoken English had been translated into
Spanish, it still would not have notified defendant that his
license had been suspended. Consequently, even if defendant had been able make that argument to the jury, it would
not have advanced defendant’s affirmative defense based
on lack of notice. Because defendant does not challenge the
sufficiency of the notice afforded by the form or the lack of
notice afforded by the officer’s oral statements—regardless
of whether they were in English or in Spanish—defendant
could not prevail on his affirmative defense.

         For purposes of the affirmative defense, the issue
the jury was asked to decide was whether defendant had
“received notice” of his license suspension under the affirmative defense statute. However, the oral information that
the officer provided included only generalized information
about a person’s rights and consequences as required by
ORS 813.100 and ORS 813.130 of the implied consent laws;
defendant did not show that it included the information that
defendant’s license would be suspended. In other words, “the
particular issue to which the error pertains”—the officer’s
oral communication of defendant’s rights and consequences
under the implied consent laws—has “no relationship to the
jury’s determination of its verdict”—whether defendant had
received notice of his license suspension under the affirmative defense statute. See Gibson, 

. As a result,
we conclude that there is little likelihood that this particular alleged error affected the verdict.

         We turn to defendant’s requested jury instruction,
which we review for legal error. State v. Brown, 

, 

 (1990). “A party is entitled to a jury instruction on its theory of the case if the requested instruction
correctly states the law, is based on the operative pleadings,
and is supported by the evidence.” State v. Williamson, 

, 

, rev den, 

 (2007).
We view the facts in the light most favorable to defendant.
State v. Oliphant, 

, 

 (2009).
“There is no error if the requested instruction is not correct
in all respects” or “if the substance of the requested jury
instruction, even if correct, was covered fully by other jury
664                                State v. Sanchez-Cacatzun

instructions given by the trial court.” Hernandez v. Barbo
Machinery Co., 

, 

 (1998).
         We start by clarifying what is not in dispute. It is
undisputed that defendant’s proposed jury instruction was
based on the operative pleadings, there was evidence in the
record to support giving that instruction, and no other jury
instruction given covered defendant’s requested instruction. Thus, the only issue for us to resolve is whether defendant’s jury instruction correctly stated the law under ORS
811.180(1)(b).
        As previously noted, defendant’s jury instruction
provided:
      “Adequate notice is notice that under the circumstances
   and conditions would apprise the affected individual of an
   impending action and afford them an opportunity to present their objections.”
         Defendant argues that the trial court erred in refusing to give his requested jury instruction because notice
under the affirmative defense statute must be “reasonably
calculated, under all the circumstances, to apprise the
defendant of the existence and pendency of the action.” For
the following reasons, the trial court did not err in refusing
to give the instruction.
          There are two components to procedural due process: notice and an opportunity for a hearing. See Mullane,

 (“[T]he Due Process Clause … require[s]
that deprivation of life, liberty or property by adjudication
be preceded by notice and opportunity for hearing appropriate to the nature of the case.”). Though the right to a hearing is interrelated to having received adequate notice, those
rights are distinct. See 

 (explaining that the “fundamental requisite of due process of law is the opportunity
to be heard[, which] … has little reality or worth unless
one is informed that the matter is pending and can choose
for himself whether to appear or default, acquiesce or contest.” (Internal quotations and citation omitted.)).
        Here, defendant’s argument—that the officer’s oral
communication of his license suspension in a language that
he did not understand was not adequate notice—is based
Cite as 

 (2020)                                665

entirely on the sufficiency of the notice. However, defendant’s
requested jury instruction includes both components of the
procedural due process rights—notice and the opportunity
for a hearing.
        As noted above, ORS 811.180(1)(b) provides an affirmative defense if
   “[t]he defendant had not received notice of the defendant’s
   suspension or revocation or been informed of the suspension or revocation by a trial judge who ordered a suspension
   or revocation of the defendant’s driving privileges or right
   to apply.”
The second half of defendant’s requested jury instruction,
which states that a person must be “afford[ed] … an opportunity to present their objections,” encompasses the right
to a hearing. However, defendant provides no argument or
legal authority to suggest that “notice” for purposes of ORS
811.180(1)(b) includes the right to challenge the underlying
suspension in an administrative hearing. Further, there is
nothing in the plain text of ORS 811.180 that suggests a
legislative intent to create an affirmative defense to driving
while suspended based on an argument that the defendant
was not afforded an administrative hearing to challenge the
underlying license suspension. See, e.g., Comcast Corp. v.
Dept. of Rev., 

, 

 (2018) (rejecting
proposed interpretation because it “would require this court
to insert” wording that the legislature chose not to include);
see also ORS 174.010 (in construing a statute, courts are to
“ascertain and declare what is, in terms or in substance,
contained therein, not to insert what has been omitted, or
to omit what has been inserted”). Therefore, defendant was
not entitled to his requested jury instruction because it was
not a correct statement of the law, and the trial court did
not err.
        Affirmed.