State v. Ramirez

                                       117

   Submitted September 19, 2019; resubmitted en banc September 21, 2020;
        remanded for resentencing, otherwise affirmed June 3, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                  RICARDO SANTOS RAMIREZ,
                   aka Sergio Martinez Gonzales,
                    aka Ricardo Santo Ramirez,
                       Defendant-Appellant.
                   Umatilla County Circuit Court
                       17CR39991; A167114
                                   

     Defendant appeals a judgment of conviction for driving under the influence
of intoxicants (DUII), ORS 813.010, contending, among other things, that the
trial court erred in relying on two earlier out-of-state convictions in permanently
revoking defendant’s driving privileges under ORS 809.235(1)(b). Specifically, he
contends that the trial court erred in concluding that his Washington conviction for first-degree negligent driving qualified as a predicate offense under ORS
809.235(1)(b)(B). Held: The trial court erred. Under ORS 809.235(1)(b)(B), an out-of-state conviction cannot serve as a predicate offense unless the offense requires
proof that the person’s impaired driving was causally related to the person’s use
of an intoxicant. The Washington offense that the trial court relied on in permanently revoking defendant’s driving privileges does not have that requirement.
    Remanded for resentencing; otherwise affirmed.



    En Banc
    Eva J. Temple, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Hannah K. Hoffman, Assistant
Attorney General, filed the brief for respondent.
  Before Egan, Chief Judge, and Armstrong, Ortega, DeVore,
Lagesen, Tookey, DeHoog, Shorr, James, Aoyagi, Powers,
Mooney, and Kamins, Judges.
118                                       State v. Ramirez

  DeHOOG, J.
  Remanded for resentencing; otherwise affirmed.
  DeHoog, J., filed the opinion of the court in which
Armstrong, Ortega, Lagesen, Shorr, James, Aoyagi, Powers,
and Kamins, JJ., joined.
   Mooney, J., dissented and filed an opinion in which Egan,
C. J., and DeVore and Tookey, JJ., joined.
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           DeHOOG, J.
         Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010,
contending, among other things, that the trial court erred
in relying on two earlier out-of-state convictions in permanently revoking defendant’s driving privileges under ORS
809.235(1)(b).1 In his first assignment of error, defendant
argues that the trial court erred in relying on a California
judgment of conviction for DUII despite there being insufficient evidence that defendant was the person named in
the judgment. In defendant’s second assignment of error, he
contends that the trial court erred in concluding that his
Washington conviction for first-degree negligent driving
qualified as a predicate offense under ORS 809.235(1)(b)(B).
For the following reasons, we agree with defendant that his
Washington conviction did not qualify under that statute
and, therefore, remand for resentencing.2
         The relevant facts are procedural. Defendant
entered a plea of guilty to DUII without sentencing concessions from the state. At the sentencing hearing, the state
argued that, although defendant’s current DUII conviction
did not qualify as a felony because at least one of his prior
convictions was too old, he did have two previous convictions
for “DUI type offenses” that, collectively, triggered the
    1
      Under Oregon’s motor vehicle laws, a person’s driving privileges must be
revoked upon a third or subsequent conviction for one of various driving offenses,
including:
    “A driving under the influence of intoxicants offense in another jurisdiction
    that involved the impaired driving of a vehicle due to the use of intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination
    thereof.”
ORS 809.235(1)(b)(B). The text of ORS 809.235(1)(b) is set out more fully below. 312
Or App at 122-23. Although the statute refers to revoking licenses “permanently,”
a driver may petition the court for reinstatement after 10 years. ORS 809.235(2).
    2
      In light of our conclusion that the trial court erred in relying on defendant’s
Washington conviction as a basis for revoking his driving privileges, we need not
further consider his first assignment of error, as it is undisputed that the mandatory revocation provision of ORS 809.235(1)(b) would not be triggered unless both
the Washington and California convictions qualified as prior convictions under
the statute. Furthermore, we need not address defendant’s related but undeveloped argument that the trial court erred in imposing a fine, although we note
that the court indicated that it was exercising its discretion in determining the
amount of the fine and not strictly relying on the provisions of ORS 809.235 in
doing so.
120                                               State v. Ramirez

mandatory license revocation provisions of ORS 809.235
(1)(b). As relevant here, one of the convictions was for the
Washington offense of first-degree negligent driving, which
Washington law defines, in part, as follows:
       “(1)(a) A person is guilty of negligent driving in the
   first degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to
   endanger any person or property, and exhibits the effects
   of having consumed liquor or marijuana or any drug ….”
Revised Code of Washington (RCW) 46.61.5249. The state
described the negligent-driving conviction as a “pled down
DUI” and told the court that the underlying plea petition
included defendant’s admission to “operat[ing a] motor vehicle
in a negligent [manner] by exhibiting the effects of consuming alcohol.” The state further explained that, as a result of
that conviction, defendant had been ordered to undergo alcohol and substance abuse counseling and install an ignition
interlock device.
         Defendant objected, arguing that the Washington
conviction did not qualify as a prior conviction under ORS
809.235(1)(b). He argued that what mattered was the “crime
of conviction,” and not any “potential statutory equivalents”
or whether the sentence that had been imposed included
probation terms typical in DUII cases.
         The trial court concluded that defendant’s Washington
conviction qualified as a predicate offense under ORS
809.235(1)(b). Recognizing that an offense’s “name is not
always indicative of the nature of the crime,” the court
expressed its understanding that, under the case law, it
was required to compare the elements of the Washington
offense to the elements of DUII in Oregon. After examining
the Washington statute, considering its associated definitions for “negligent” and “exhibits the effects of having consumed liquor or marijuana or any drug,” and comparing it to
the offense of DUII in Oregon, the court concluded that the
offenses were sufficiently similar. The court explained:
   “So it is not identical to driving under the influence of intoxicants, but it does basically include an element of being
   under the influence of alcohol and marijuana, and driving
   in a way that is negligent, so it’s not exactly the same, but it
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   is … I would say more similar to driving under the influence than reckless driving, for example, because it includes
   the element of being under the influence or exhibiting the
   effects of consuming an intoxicant.”
Based upon its conclusion that defendant’s negligent-driving
conviction was for an offense sufficiently similar to DUII
under Oregon law, the court relied on that conviction—
together with the California conviction, which it accepted
as being defendant’s—and permanently revoked defendant’s
driving privileges. Defendant now appeals, contending that
the trial court erred in revoking his driving privileges
based, in part, on his Washington conviction for negligent
driving.
         On appeal, defendant reprises his challenge to the
trial court’s use of his Washington conviction, but he takes
a slightly different tack. Relying on our decisions in State v.
Rawleigh, 

, 

 (2008), and State v.
Mersman, 

, 

 (2007), rev den, 

 (2008), abrogated by State v. Guzman, 

,

 (2019), he recognizes that a “statutory counterpart” to ORS 813.010 from another jurisdiction qualifies as
a predicate offense under ORS 809.235(1)(b), but he argues
that the first-degree negligent driving statute does not qualify as a statutory counterpart to Oregon’s DUII statute. See
ORS 809.235(1)(b)(A)(ii) (providing that a “statutory counterpart to ORS 813.010 in another jurisdiction” is a predicate offense under ORS 809.235(1)(b)). Citing our decision in
Mersman for the proposition that, for an out-of-state statute
to qualify as a statutory counterpart to ORS 813.010, the
two statutes must be “either remarkably similar or have the
same use, role, or characteristics,” defendant explains why,
in his view, the negligent-driving statute does not satisfy
that test. Mersman, 

.
         The state, in turn, argues that defendant’s “statutory counterpart” argument is beside the point, because
proving that Washington’s first-degree negligent-driving
statute is a statutory counterpart to ORS 813.010 is only one
of several ways to establish it as a predicate offense under
ORS 809.235(1)(b). See ORS 809.235(1)(b)(A) (treating, as
predicate offenses, prior convictions under ORS 813.010
122                                                       State v. Ramirez

or a “statutory counterpart”). Here, the state argues, the
trial court properly treated defendant’s Washington conviction as a predicate offense under ORS 809.235(1)(b)(B).
Citing Dyrdahl v. DMV, 

, 

(2006), the state argues that that provision requires only
that the out-of-state provision “criminalize activity that is
‘substantially similar’ to activity that Oregon considers to
be ‘driving under the influence.’ ” And, quoting a decision
of the Washington Court of Appeals, the state reasons that
“the Washington statute, RCW 46.61.5249(1)(a), is a ‘driving
under the influence of intoxicants offense’ because it criminalizes driving dangerously while ‘exhibit[ing] the effects
of having consumed liquor or marijuana or any drug.’ ” See
State v. Mullen, 186 Wash App 321, 334, 

 (2015)
(stating, in dictum, that a “person may not be guilty of first
degree negligent driving unless he is under the influence of
alcohol or drugs”).3
         As we will explain, we agree that the state was not
required to establish that the Washington statute was a
statutory counterpart to ORS 813.010 for the trial court to
treat it as a predicate offense. We conclude, however, that
defendant’s conviction for first-degree negligent driving
under RCW 46.61.5249 did not fall within the provisions
of ORS 809.235(1)(b)(B), the statute that the state relies on
in this appeal. Accordingly, the trial court erred in relying
on defendant’s Washington conviction as a basis for permanently revoking defendant’s driving privileges.
         Before addressing that issue, we set out more completely the license-revocation provision at issue in this case.
As relevant here, ORS 809.235(1) provides:
       “(b) 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 in
   violation of ORS 813.010 or if the person is convicted for a
   third or subsequent time of any of the following offenses in
   any combination:
      “(A) Driving while under the influence of intoxicants
   in violation of:

   3
       The relevant text of RCW 46.61.5249 is set out below. 312 Or App at 128.
Cite as 

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       “(i) ORS 813.010;[4] or
      “(ii) The statutory counterpart to ORS 813.010 in
   another jurisdiction.
       “(B) A driving under the influence of intoxicants
   offense in another jurisdiction that involved the impaired
   driving of a vehicle 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 while having a blood alcohol
   content above that jurisdiction’s permissible blood alcohol
   content.”
          As framed by the trial court’s decision and the
arguments on appeal, our primary analytical task in this
case is to construe ORS 809.235(1)(b)(B), and particularly to
determine whether the Washington offense of first-degree
negligent driving is, within the meaning of that provision,
“[a] driving under the influence of intoxicants offense in
another jurisdiction that involved the impaired driving of a
vehicle due to the use of intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination thereof.”
That question requires us to determine the meaning of both
ORS 809.235(1)(b) and RCW 46.61.5249, and we review the
trial court’s application of those provisions for legal error. See,
e.g., Alfieri v. Solomon, 

, 

 (2015)
(reviewing for legal error trial court actions that turned on
proper interpretation of a statute). In performing that task,
we rely, in part, on the interpretive framework set out by
the Supreme Court in State v. Gaines, 

, 171-72

 (2009) (evaluating statutory text in context,
considering any helpful legislative history, and turning to
canons of construction when necessary), and, to the degree
   4
     Oregon’s DUII statute, ORS 813.010, provides, in relevant part:
       “(1) 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 …;
       “(b) Is under the influence of intoxicating liquor, cannabis, a controlled
   substance or an inhalant; or
       “(c) Is under the influence of any combination of intoxicating liquor, cannabis, a controlled substance and an inhalant.”
124                                                       State v. Ramirez

it is appropriate, on Washington decisional law regarding
the interpretation and meaning of that state’s laws.
          In arguing that defendant’s negligent-driving conviction falls under ORS 809.235(1)(b)(B), the state, citing
the Washington Court of Appeals’ decision in Mullen,
focuses on the first part of that provision and contends that
the Washington conviction was for a “driving under the
influence of intoxicants offense.” Although the state quotes
ORS 809.235(1)(b)(B) more completely in other parts of its
brief, in our view, the state pays inadequate attention to the
statutory language that closely follows the state’s emphasized language of “driving under the influence of intoxicants offense,” namely, the requirement that the offense
be one “that involved the impaired driving of a vehicle due
to the use of intoxi[cants].” ORS 809.235(1)(b)(B) (emphasis
added). And, because defendant’s Washington conviction
cannot serve as a predicate offense unless it satisfies ORS
809.235(1)(b)(B) in full, we will focus our assessment of that
provision on the latter language, without deciding whether
the Washington statute might otherwise be deemed to
define a “driving under the influence of intoxicants offense.”5
         We first consider the specific text of the statute. See
Gaines, 

 (“[T]here is no more persuasive evidence of the intent of the legislature than the words by which
the legislature undertook to give expression to its wishes.”
(Internal quotation marks omitted.)). Here, the only terms
in the latter part of ORS 809.235(1)(b)(B) that appear at all
susceptible to dispute are the phrases “impaired driving”
and “due to the use.” And, because it is ultimately dispositive, we focus our attention on the latter phrase, “due to the
use,” both in isolation and in the context in which it appears.
         The phrase “due to the use” consists of words of common usage; thus, following our typical practice, we may consider a standard dictionary to determine how those words
are ordinarily understood. E.g., State v. Baker-Krofft, 348

     5
       Similarly, because the state effectively concedes that the Washington statute is not a statutory counterpart to ORS 813.010 and advances no argument that
it satisfies any part of ORS 809.235(1)(b) other than ORS 809.235(1)(b)(B), we do
not decide whether any other provision might have allowed the trial court to rely
on the conviction as it did.
Cite as 

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, 

 (2010) (explaining that, when the
legislature has not defined statutory terms, “we look to the
dictionary to determine their ordinary meaning”). And, as
it appears here, the prepositional phrase “due to” most likely
means “because of.” See Webster’s Third New Int’l Dictionary
699 (unabridged ed 2002). Although the phrase “because of”
also appears in the dictionary, its principle definition does
not provide much, if any, clarity. See Webster’s at 194 (defining “because of” as meaning “by reason of” or “on account
of”). However, the ordinary meaning of “because” supports
a preliminary understanding that the expression “due to
the use” in ORS 809.235(1)(b)(B) is intended to convey an
element of causation, that is, a requirement that, to fall
within that provision, an offense must involve impairment
(of either driving or a driver) that is causally related to the
person’s use of intoxicants. See Webster’s at 194 (also defining “because” as “since : for the reason that : on account of
the cause that” and noting that the word is derived from “by
+ cause” (emphasis in original)).
         Moreover, even at that first-level examination of the
plain text and context of “due to the use,” we are not limited
to dictionary definitions for guidance as to its meaning; prior
interpretations of the same or related text also inform our
understanding of how the legislature likely intended those
words to be understood here. See, e.g., Keller v. Armstrong
World Industries, Inc., 

, 

 (2006)
(previous judicial interpretations of related statutes provide “relevant context” when construing a statute); State v.
Bryan, 

, 

 (2008), rev den, 

 (2009) (previous constructions of a statute are relevant at the first stage of statutory construction). Although
neither we nor the Supreme Court have construed ORS
809.235(1)(b)(B), we have case law construing comparable
language in the closely related context of ORS 813.010.6 We
turn to those decisions.
    6
      In considering whether the provisions of ORS 809.235(1)(b) encompassed
convictions under the predecessor to ORS 813.010, the Supreme Court has, in
passing, distinguished between ORS 809.235(1)(b)(A) and subparagraphs (B)
and (C), observing that the latter described qualifying offenses that “might not
be criminal in Oregon.” State v. Kellar, 

, 

 (2011).
However, the meaning of ORS 809.235(1)(b)(B) was not at issue or further discussed in Kellar. Thus, while it is true that the 2007 amendments would likely
126                                                      State v. Ramirez

         In Oregon, the offense of DUII, ORS 813.010, can
be proved in either of two ways. One, the state can establish
that a driver’s blood-alcohol content (BAC) was equal to or
greater than a statutory limit at the time of driving—the so
called “DUII per se” cases. See ORS 813.010(1)(a) (prohibiting driving a vehicle when the driver has a BAC of .08 percent or more); State v. Hedgpeth, 

, 

 (2019) (describing prosecutions under ORS 813.010(1)(a)
as “the per se method of proving DUII”). Two, the state can
establish, under ORS 813.010(1)(b) or (c), that the driver was,
at the time of driving, “under the influence” of one or more
intoxicants. It is the case law construing the latter, non-DUII per se method of prosecution that informs our understanding of “due to the use of” intoxicants as it appears in
ORS 809.235(1)(b)(B).
          Both we and the Supreme Court have developed a
long-standing and substantial body of DUII case law that
has always required, in non-DUII per se cases, proof of both
impairment and a causal relationship between a person’s
use of intoxicants and that impairment. See, e.g., State v.
Eumana-Moranchel, 

, 

 (2012) (to be
“under the influence” of an intoxicant within the meaning of
ORS 813.010(1)(b), a person must be shown to be “adversely
affected by intoxicants to a perceptible degree” (emphasis
added)); State v. Stroup, 

, 

(1997) (noting, in determining that officer lacked probable
cause to arrest defendant for DUII, that nothing in record
“suggest[ed] a correlation between defendant’s” circumstances “and a mental or physical impairment because of
the consumption of alcoholic beverages” (emphases added));
see also State v. Sinkey, 

, 

(2020) (“To constitute probable cause [to support a DUII
arrest], there must be information from which a law enforcement officer could conclude that it is more likely than not
that defendant drove while he was physically or mentally
impaired.”); State v. Snyder, 

, 62, 

(2017), rev den, 

 (2018) (a person who is shown to

encompass such things as a conviction on a DUII per se theory in a state that had
a .05 percent statutory BAC limit—that is, conduct that would not, as such, “be
criminal in Oregon”—Kellar does not aid our inquiry as to whether a statute such
as RCW 46.61.5249 fits within the newer provisions.
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have driven after consuming alcohol but who is not shown
to be adversely affected by that alcohol or to have a BAC of
at least 0.08 percent “has not committed a crime”). And, as
the Supreme Court observed in State v. Guzman, 

, 

 (2019), “[t]he perceptible degree standard
has been part of our law for close to a century.” (Internal
quotation marks omitted.)
         To be sure, the cases cited above all relate to ORS
813.010, and not ORS 809.235(1), the Oregon statute at issue
here. Nonetheless, those cases and others like them support
our preliminary understanding that, in referring, in ORS
809.235(1)(b)(B), to a driving under the influence offense
involving impaired driving “due to the use of” intoxicants,
the legislature was contemplating out-of-state offenses that,
like DUII in Oregon, involved proof of both impairment
and a correlation between a driver’s use of intoxicants and
that impairment. See Guzman, 

 (recognizing,
as contextual support for a particular reading of a statute,
Court of Appeals decisions construing same or similar language); cf. 

 (applying “the canon of consistent usage,”
which is “the principle that, in the absence of evidence to
the contrary, we ordinarily assume that the legislature uses
terms in related statutes consistently”). And, although the
statutory phrases “impaired driving” and “due to the use
of [intoxicants]” are not themselves phrases that appear in
other statutes, it stands to reason that their placement in a
DUII-related statute reflects the legislature’s awareness of
our case law repeatedly discussing those essential aspects
of a DUII prosecution.7
         In light of the foregoing, we understand ORS
809.235(1)(b)(B) to encompass out-of-state offenses only to
the degree that those offenses require proof that a person
or the person’s driving was impaired by the person’s use
of intoxicants.8 We turn then, to whether the Washington

    7
      Except as reflected in the above decisional law, we are aware of no legislative history that might inform our understanding of ORS 809.235(1)(b)(B).
    8
      Because we ultimately conclude that the Washington offense at issue in
this case did not satisfy the “due to” component of ORS 809.235(1)(b)(B), we need
not separately determine whether what must be “impaired” due to the person’s
use of intoxicants is the driver, the driving, or both.
128                                                        State v. Ramirez

offense of first-degree negligent driving, RCW 46.61.5249,
satisfies that requirement.
         As with our examination of ORS 809.235, we begin
by considering the text of RCW 46.61.5249, which provides,
in relevant part:
        “(1)(a) A person is guilty of negligent driving in the
    first degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to
    endanger any person or property, and exhibits the effects of
    having consumed liquor or marijuana or any drug ….
        “…
        “(2)   For the purposes of this section:
        “(a) ‘Negligent’ means the failure to exercise ordinary care, and is the doing of some act that a reasonably
    careful person would not do under the same or similar
    circumstances or the failure to do something that a reasonably careful person would do under the same or similar
    circumstances.
        “(b) ‘Exhibiting the effects of having consumed liquor,
    marijuana, or any drug’ means that a person has the odor of
    liquor, marijuana, or any drug on his or her breath, or that
    by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed
    liquor, marijuana, or any drug, and either:
       “(i) Is in possession of or in close proximity to a container that has or recently had liquor, marijuana, or any
    drug in it; or
       “(ii) Is shown by other evidence to have recently consumed liquor, marijuana, or any drug.”
RCW 46.61.5249 (emphases added).
        On its face, it is difficult to see how, if at all,
Washington’s negligent-driving offense requires proof of a
causal relationship between a person’s use of an intoxicant
and the impairment of the person or the person’s driving.9
    9
      Like Oregon, Washington follows an established methodology when construing statutes. See State v. Dennis, 191 Wash 2d 169, 172-73, 

 (2018).
In Washington, as in Oregon, the words of a statute are paramount and taken at
face value. Id. at 172. Thus, when “interpret[ing] a criminal statute,” Washington
courts “give it a literal and strict interpretation.” Id. (internal quotation marks
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While it may well be true that, in most instances, the prosecution of a person charged with first-degree negligent driving will include evidence that the person or the person’s driving was impaired by (or “due to”) intoxicants, nothing in the
statute defining that offense appears to require that showing. Indeed, RCW 46.61.5249 does not, on its face, appear to
require actual impairment of any sort, much less impairment “due to the use of” intoxicants, as ORS 809.235(1)(b)(B)
explicitly contemplates. (Emphasis added.)
         As the emphasized language of RCW 46.61.5249
suggests, a person may be convicted of first-degree negligent driving under that statute based merely upon a showing of ordinary negligence if, in conjunction with that showing, the person also has an “odor of liquor … on his or her
breath” and is near (“in possession of or in close proximity”)
to “a container that has or recently had liquor, marijuana, or
any drug in it.” RCW 46.61.5249(2)(b) (defining “ ‘Exhibiting
the effects of having consumed liquor …’ ”). Stated differently, although the Washington statute recognizes, as evidence of “the effects of having consumed liquor,” arguable
manifestations of impairment, such as any telltale aspects
of a person’s “speech, manner, appearance, behavior, lack
of coordination,” etc., 

 it does not require any evidence of
impairment, because impairment is not an element of that
offense.
        Under the plain language of RCW 46.61.5249, any
number of scenarios might satisfy the elements of first-degree negligent driving, even where the charged incident
does not involve impairment due to the use of intoxicants,
as we have determined ORS 809.235(1)(b)(B) requires.10
Consider, for example, a person who, as part of a religious

omitted); id. at 172-73 (“We derive the legislative intent of a statute solely from
the plain language” of the text in its statutory context.). Unlike Oregon courts,
Washington courts may not consider legislative history unless the statutory text
is ambiguous. Id.; see Gaines, 

 (in light of 2001 amendments to
ORS 174.020, Oregon courts may consider legislative history for what it may be
worth even in absence of ambiguity).
    10
       We note that, under analogous circumstances, the Supreme Court has
similarly considered hypothetical scenarios in determining whether the defendant’s convictions under a California statute were for offenses “comparable” to a
qualifying Oregon offense for purposes of the sentence enhancement provisions
of ORS 137.719(3)(b)(B). See State v. Carlton, 

, 

 (2017).
130                                         State v. Ramirez

observance, takes a sip of sacramental wine, then drives
home with her husband’s medical prescription on the car
seat next to her. Or the designated driver who drinks only
nonalcoholic beer on a night out with friends but picks up
a six-pack on the way home. Or a conscientious wine-lover
who tastes but never drinks the wine at tastings, but always
buys a bottle before leaving. Or even a liquor-store patron
who takes half a sip from a sample of local whiskey, then
leaves the store with a bottle of Jack Daniels. Assume then,
that as each of those people drives home, he or she suffers a
momentary lapse of attention, resulting in a fender-bender
at a red light or some other such minor accident.
         Under each scenario, even though alcohol impairment played no role in the incident—because very little or
no alcohol had been consumed, much less enough to cause
perceptible impairment or trigger even the strictest statutory limit—there seems to be little doubt that the driver
could be prosecuted for first-degree negligent driving under
RCW 46.61.5249. That is, the person would have (1) “operat[ed] a motor vehicle in a manner that is … negligent”
(momentarily failing to watch); (2) “endanger[ed another]
person or property” (the other vehicle and its occupants);
and (3) “exhibit[ed] the effects of having consumed liquor” by
(a) having “the odor” of the sipped, tasted, or alcohol-free
beverages “on his or her breath,” RCW 46.61.5249(2)(b), and
(b) being “in possession of or in close proximity to a container that has or recently had liquor, marijuana, or any
drug in it,” RCW 46.61.5249(2)(b)(i), namely, the bottles of
beer, wine, or whiskey that each had purchased or, in the
case of the first person, the prescription drugs belonging
to her husband. Thus, under the plain language of the
Washington statute, it is apparent that a person can be convicted of first-degree negligent driving without engaging
in any conduct that, as least under the plain text of RCW
46.61.5249, can be viewed as “impaired driving of a vehicle due to the use of intoxi[cants].” See ORS 809.235(1)(b)(B)
(applying only to such convictions). The dissent views our
reliance on hypotheticals as an attempt “to illustrate why a
conviction for first-degree negligent driving in Washington
does not involve impairment due to intoxicants.” 312 Or App
at 138 (Mooney, J., dissenting) (emphasis added). But that is
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not our point. As we acknowledge above, most convictions for
that offense probably do “involve” impairment due to intoxicants. The point we seek to illustrate, however, is that there
is a considerable difference between an offense that often
involves impairment and one for which proof of impairment
is required, i.e., an offense that necessarily involves impairment. As the foregoing discussion concludes, only the latter
type of offense is one that satisfies ORS 809.235(1)(b)(B).
         Resisting the conclusion that first-degree negligent driving is not such an offense, the state relies on the
Washington Court of Appeals’ decision in Mullen to support
its argument that, notwithstanding the plain language of
RCW 46.61.5249, a conviction under that statute qualifies
as a predicate offense under ORS 809.235(1)(b)(B). For two
reasons, we find that reliance misplaced. Ultimately, we
conclude that, even assuming that we ordinarily would defer
to the construction of an out-of-state statute by the other
state’s appellate courts to determine whether the statute fit
within ORS 809.235(1)(b)(B),11 Washington’s decisional law
is not helpful in that regard; that is, because that case law
simply adheres to the plain language of RCW 46.61.5249,
which, as we have just concluded, lacks any apparent causal
element, it does not illuminate whether such an element is
nonetheless required.
         First, although the court in Mullen observes in passing that the offense of first-degree negligent driving requires
the state to prove that a driver drove “under the influence
of alcohol or drugs,” 186 Wash App at 334, the meaning of
RCW 46.61.5249 was not at issue in that case. Rather, the

     11
        The Supreme Court has taken somewhat of a hybrid approach. In Carlton,
for example, the court considered whether the defendant’s convictions under a
California statute were for offenses “comparable” to a qualifying Oregon offense
for purposes of the sentence enhancement provisions of ORS 137.719(3)(b)(B). 

. In ultimately concluding that the California offense was not comparable
(because it had one fewer conduct element than the qualifying Oregon sexual
offense and could be committed through “even outwardly innocent touching”),
the court cited a decision of the California Supreme Court to that effect. 

. Even then, however, the Oregon Supreme Court seems to have relied initially on its own examination of the California statute and not wholly deferred
to the California court’s interpretation. See 

 Notably, in Carlton, the court
began its analysis with an extensive exploration of the meaning of the applicable
Oregon statute, ORS 137.719(3)(b)(B), before turning to the question whether the
California statute at issue fell within its ambit. 

.
132                                         State v. Ramirez

issue in Mullen was whether the defendant, who previously
had been convicted of reckless driving under a different statute, was entitled to a jury instruction requiring the jury to
determine whether the defendant had been previously convicted of an offense involving alcohol or drugs. 186 Wash
App at 325-26. The court’s reference to RCW 46.61.5249
was in passing and clearly intended only as a contrasting
example of an offense that, unlike the offense for which the
defendant had previously been convicted, did involve alcohol or drugs. Id. at 333-34. As a result, it was dictum, and
not a binding statement of law. See Guzman, 

(explaining that “the term dictum refers to a statement that
is not necessary to the court’s decision” (internal quotation
marks omitted)).
         Second, even if the observation in Mullen were not
dictum, it would seem unlikely to be viewed as a correct
statement of Washington law. As noted above, 312 Or App
at 128 n 9, Washington courts must construe statutory language strictly, and, unless there is an ambiguity in the text,
they may not resort to legislative history or otherwise give
statutes something other than a “literal and strict interpretation.” State v. Dennis, 191 Wash 2d 169, 172-73, 

 (2018). As the foregoing discussion illustrates, there
are no apparent ambiguities in the relevant text of RCW
46.61.5249. As a result, construing that statute to add an
“under the influence” element would seem to deviate from
Washington law. And, although it would not be our role to
correct a Washington court’s statement of Washington law,
if, in fact, the statement in Mullen were a holding, that
understanding counsels against relying on the passing
reference to RCW 46.61.5249 in that case as somehow controlling here.
        In urging a different result, the dissent, 312 Or
App at 137-38 (Mooney, J., dissenting), relies on two other
Washington appellate decisions, State v. Bosio, 107 Wash
App 462, 

 (2001), and State v. Wu, 194 Wash
2d 880, 

 (2019), but neither of those opinions
supports the dissent’s view that a conviction under RCW
46.61.5249 falls within the scope of ORS 809.235(1)(b)(B).
First, in Bosio, the defendant was prosecuted under
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Washington law for vehicular assault after she crashed the
car she had been driving and seriously injured her passenger’s arm; subsequent testing disclosed that the defendant’s
BAC was .23 percent. 107 Wash App at 463-64. At trial, the
defendant requested that the jury be instructed on the elements of first-degree negligent driving as a lesser-included
offense. 

 The appellate court held that the trial court had
not erred in refusing that request. Id. at 466.
         The court explained that vehicular assault could
be established based on either of two theories: (1) that the
person drove recklessly and caused serious bodily injury, or
(2) that the person drove intoxicated and caused serious
bodily injury. Id. at 465 (citing RCW 46.61.522(1)). To establish first-degree negligent driving, on the other hand, the
state was required to prove that the person drove negligently, endangered persons or property, and “exhibit[ed]
effects of alcohol or drugs.” Id. Applying Washington’s case
law as to lesser-included offenses, the court determined
that first-degree negligent driving was not a lesser-included
offense of vehicular assault, because not every element of
first-degree negligent driving was a necessary element of
vehicular assault. Id. at 465-66.
        Specifically, as to the intoxicated-driving theory of
vehicular assault, the court reasoned that it was not necessary to prove that the person drove negligently, which was
an element of first-degree negligent driving. Id. Therefore,
the crime of first-degree negligent driving was not a lesser-included offense to the crime of vehicular assault when
charged on an intoxicated-driver theory. And, as the dissent
observes, 312 Or App at 137 (Mooney, J., dissenting), the
court reached a similar conclusion as to the reckless-driving
theory of vehicular assault:
   “To commit negligent driving in the first degree, a driver
   must: drive negligently, endanger persons or property and
   exhibit effects of alcohol or drugs. First degree negligent
   driving is not a lesser-included offense of the [reckless-driving] means of committing vehicular assault because
   under that alternative, there is no requirement of signs of
   intoxication.”
Bosio, 107 Wash App at 465.
134                                         State v. Ramirez

         The dissent emphasizes Bosio’s reference to “signs
of intoxication” and suggests (without expressly saying so)
that the Washington court’s reference to “signs of intoxication” expressed its view that something more than the
statutorily defined “exhibit[ing of] the effects of having consumed” intoxicants is required to prove negligent driving.
312 Or App at 137-38 (Mooney, J., dissenting). However, in
a later passage in Bosio, the court dispels any such belief.
In explaining why an earlier decision holding that negligent
driving was a lesser-included offense of vehicular assault
was no longer controlling, the court noted that, due to intervening legislative changes, first-degree negligent driving now “includes [the additional element of] ‘exhibits the
effects of having consumed liquor or an illegal drug.’ ” Id. at
466 (quoting RCW 46.61.5249(1)(a)). In other words, rather
than holding that the negligent driving required more than
the statutorily defined exhibiting of effects, the court was
merely observing that requirement, itself, which, the court
correctly indicated, is not an aspect of vehicular assault
under Washington law.
         The Washington Supreme Court’s decision in Wu
lends even less support for the dissent’s view. In relevant
part, Wu simply states that “[n]egligent driving includes as
an express element that the person ‘exhibits the effects of
having consumed liquor.’ ” 194 Wash 2d at 888 (quoting RCW
46.61.5249(1)(a) (emphasis added)). In other words, the court
was simply quoting the language of the statute, not construing it, not even in dictum. And, although, like the dissent,
we see no reason that the Washington Supreme Court would
inaccurately quote the statute—and agree that it did not—
that observation does nothing to support the dissent’s conclusion that the Washington law is one that “involv[es] the
impaired driving of a vehicle due to the use of intoxi[cants],”
as ORS 809.235(1)(b)(B) requires.
         The dissent concludes by recounting the sentencing
proceedings in this case, including the prosecutor’s description of defendant’s Washington conviction as a “pled down
DUI.” 312 Or App at 140 (Mooney, J., dissenting). Echoing
the language of the Washington statute, the dissent emphasizes that, in his Washington case, defendant “ ‘exhibit[ed]
the effects of having consumed alcohol,’ ” id. (Mooney, J.,
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dissenting), but the dissent does not take issue with our
conclusion that, under RCW 46.61.5249(1)(a), the element
of “exhibits the effects of having consumed liquor” can be
established without proving impairment. Finally, based
on the prosecution’s unopposed recitation of the contents
of defendant’s Washington judgment of conviction, the dissent concludes that “the Washington conviction was appropriately before the court and available for it to consider
as it formulated defendant’s sentence.” 312 Or App at 141
(Mooney, J., dissenting). But, as the dissent itself acknowledges, defendant has never contended that the conviction
was not “properly before the court.” See id. (Mooney, J., dissenting). Rather, defendant contends—as we conclude—that
the conviction itself does not satisfy the requirements of ORS
809.235(1)(b)(B). Whether or not the prosecutor’s comments
were evidence on which the trial court could base factual
findings—a matter that we need not consider—the dissent
has not persuaded us that the prosecutor’s recitation of the
elements of first-degree negligent driving as they appeared
in the judgment of conviction somehow supports a different
conclusion.
         In sum, under ORS 809.235(1)(b)(B), an out-of-state
conviction cannot serve as a predicate offense unless the
offense requires proof that the person’s impaired driving
was causally related to the person’s use of an intoxicant.
The Washington offense that the trial court relied on in permanently revoking defendant’s driving privileges does not
have that requirement. Accordingly, the trial court erred.
        Remanded for resentencing; otherwise affirmed.
        MOONEY, J., dissenting.
         Defendant pleaded guilty to driving under the influence of intoxicants (DUII). ORS 813.010. At the time of sentencing, his driving privileges were permanently revoked
because he had been convicted of impaired driving twice
before, once in California and once in Washington. ORS
809.235(1)(b). Defendant argues, and the majority agrees,
that his license should not have been revoked because the
Washington conviction does not qualify as a predicate
offense under ORS 809.235. I respectfully disagree. In my
136                                                      State v. Ramirez

view, the Washington conviction is a predicate offense and
defendant’s license was properly revoked.1
         ORS 809.235(1)(b)2 requires permanent revocation
of driving privileges when
    “the person is convicted for a third or subsequent time of
    any of the following offenses in any combination:
       “(A) Driving while under the influence of intoxicants
    in violation of:
        “(i) ORS 813.010; or
       “(ii) The statutory counterpart to ORS 813.010 in
    another jurisdiction.
        “(B) A driving under the influence of intoxicants
    offense in another jurisdiction that involved the impaired
    driving of a vehicle 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 while having a blood alcohol
    content above that jurisdiction’s permissible blood alcohol
    content.”
The relevant provision here is ORS 809.235(1)(b)(B), which
requires that the conviction be for an offense “that involved
the impaired driving of a vehicle due to the use of intoxicating liquor.” The question is whether defendant’s conviction
under Revised Code of Washington (RCW) 46.61.5249 constitutes such a qualifying predicate offense. The majority
concludes that it does not; I conclude that it does.

    1
      Although the majority does not reach defendant’s other assignments of
error, I would also find that the California conviction was a predicate offense
and that, regardless of whether this was defendant’s first, second, or third DUII
conviction, the fine imposed was within the permissible statutory range. ORS
813.010(6); ORS 161.635(1)(a).
    2
      The language used in ORS 809.235(1)(b) is virtually identical to several
other statutes that enhance penalties for those repeatedly convicted of impaired
driving and reflects a statewide sentencing policy for those repeat offenders.
See, e.g., ORS 813.010(5) (increasing crime of DUII from a misdemeanor to a
felony); ORS 813.215 and ORS 813.220 (disqualifying individuals from DUII
diversion programs); ORS 809.730 (allowing for a motor vehicle to be seized);
ORS 813.430 (increasing the length of driving privilege suspension (1) related to
refusal or failure of a breath or blood test and (2) before a hardship permit may
issue).
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         To qualify as a predicate offense under ORS
809.235(1)(b)(B), defendant’s conviction for first-degree negligent driving under RCW 46.61.5249 must have “involved”
impaired driving due to the use of intoxicants. RCW
46.61.5249 provides, in relevant part:
       “(1)(a) A person is guilty of negligent driving in the
   first degree if he or she operates a motor vehicle in a manner that is both negligent and endangers or is likely to
   endanger any person or property, and exhibits the effects of
   having consumed liquor or marijuana or any drug or exhibits the effects of having inhaled or ingested any chemical,
   whether or not a legal substance, for its intoxicating or hallucinatory effects.
      “…
      “(2)   For the purposes of this section:
      “…
       “(b) ‘Exhibiting the effects of having consumed liquor,
   marijuana, or any drug’ means that a person has the odor
   of liquor, marijuana, or any drug on his or her breath, or
   that by speech, manner, appearance, behavior, lack of coordination, or otherwise exhibits that he or she has consumed
   liquor, marijuana, or any drug, and either:
      “(i) Is in possession of or in close proximity to a container that has or recently had liquor, marijuana, or any
   drug in it; or
     “(ii) Is shown by other evidence to have recently consumed liquor, marijuana, or any drug.”
         In State v. Bosio, 107 Wash App 462, 465, 

 (2001), the Washington Court of Appeals described negligent driving in the first degree as follows:
   “To commit negligent driving in the first degree, a driver
   must: drive negligently, endanger persons or property and
   exhibit the effects of alcohol or drugs. First degree negligent driving is not a lesser-included offense of the first
   alternative means of committing vehicular assault because
   under that alternative, there is no requirement of signs of
   intoxication.”
In other words, “signs of intoxication” are required for
negligent driving in the first degree. In State v. Wu, 194
138                                          State v. Ramirez

Wash 2d 880, 888, 

 (2019), the Supreme Court
of Washington stated that “[n]egligent driving includes as
an express element that the person ‘exhibits the effects of
having consumed liquor.’ ” (Quoting RCW 46.61.5249.) And,
although Wu concerned felony DUII, and its discussion of
negligent driving was dictum, I can think of no reason why
its description of negligent driving under RCW 46.61.5249
would be inaccurate. What is clear from the text of the statute and Bosio and Wu is that, in Washington, the crime of
negligent driving in the first degree includes (1) negligent
driving, (2) endangerment, and (3) exhibited effects of alcohol or drugs.
         The majority nevertheless concludes that impairment is not required for a conviction under RCW 46.61.5249
and, because of that, it is not an offense involving impaired
driving due to the use of alcohol or drugs. 312 Or App at
130-31. It presents a series of hypothetical scenarios to illustrate why a conviction for first-degree negligent driving in
Washington does not involve impairment due to intoxicants.
But the question is whether, during sentencing, the trial
court erred in concluding that defendant’s conviction for
first-degree negligent driving in Washington qualifies as a
predicate offense under ORS 809.235.
          It is important to understand that, prior to 2007, ORS
809.235(1)(b) and similar statutory provisions increased or
enhanced penalties only when the defendant had been previously convicted of (1) DUII in Oregon under ORS 813.010 or
(2) “[t]he statutory counterpart to ORS 813.010” of another
jurisdiction. But, in 2007, House Bill (HB) 2651 expanded
the reach of those statutes by adding the language currently
found in subparagraphs (B) and (C) of ORS 809.235(1)(b),
quoted above, ORS 813.010(5)(a), ORS 809.730(1)(a), ORS
813.215(1)(a), ORS 813.220(7)(a), and ORS 813.430. See Or
Laws 2007, ch 879, § 4.
        The Supreme Court, in State v. Kellar, 

, 

 (2011), provides a historical overview of
the evolution of those statutory provisions that supports the
conclusion that the scope of ORS 809.235(1)(b) and similar
provisions was expanded in 2007 by the passage of HB 2651:
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   “Two of the 2007 legislative changes bear mention. First,
   the legislature omitted the term ‘misdemeanor,’ found in
   the 2003 and 2005 versions of ORS 809.235, as a limitation
   on the DUII convictions that can serve as predicate convictions for the purposes of ORS 809.235. Second, the legislature added subparagraphs (B) and (C), which expanded the
   category of DUII offenses from other jurisdictions that will
   result in the permanent revocation of a person’s driver’s
   license to include acts that violate that jurisdiction’s DUII
   laws but that might not be criminal in Oregon.”

(Emphasis added.) The majority opinion discounts the importance of the history and context of ORS 809.235 carefully
outlined by the Supreme Court in Kellar, and it dismisses
that court’s conclusion that a predicate offense from another
jurisdiction need not be a criminal offense in Oregon as a
mere observation made “in passing.” 312 Or App at 126 n 6.
And, yet, the history and evolution of ORS 809.235 is as
important here as it was in Kellar to determining whether
an out-of-state conviction qualifies as a predicate offense
requiring a permanent license revocation.
         The Supreme Court revisited that history in State
v. Guzman, 

, 

 (2019), a case concerned
with the “statutory counterpart” language of ORS 813.011.
In rejecting an argument by the state that, when the voters adopted ORS 813.011 in 2010, they would have understood the phrase “statutory counterpart to ORS 813.010” to
include any statute with the “same use, role or characteristics” as ORS 813.010, the Supreme Court noted the 2007
amendments and quoted extensively from our decision in
State v. Donovan, 

, 

 (2011), in
which we discussed ORS 813.215(1)(a):
      “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 a person ineligible for diversion. Thus, we
   presume the legislature intended subparagraphs (B) and
   (C) [the new additions] 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
140                                            State v. Ramirez

   interpretation would mean the amendments were merely
   redundant of what was already in the statute.’ ”

Guzman, 

-33 (quoting Donovan, 

 (brackets in Guzman)).
         It is clear that the 2007 amendments rejected the
requirement of a direct connection to Oregon’s DUII statute
and expanded the type of out-of-state convictions that would
qualify as predicate offenses. The majority’s acknowledgment that this is not a “statutory counterpart” case is correct. But, respectfully, it seems to me that, by that acknowledgment, the court today sidesteps the importance of the
legislature’s decision in 2007 to broaden the scope of out-of-state convictions that qualify as predicate offenses, and
it analyzes this case as if those amendments had not been
made.
         Defendant was not convicted under RCW 46.61.5249
for endangering persons or property by mere negligent driving. He was convicted under RCW 46.61.5249 because, in
addition to driving negligently and dangerously, he also
“exhibit[ed] the effects of having consumed alcohol.” At the
time of sentencing, the state described the Washington conviction for the court as follows:
   “Defendant was also convicted of Negligent Driving in the
   First Degree in the State of Washington in 2016. This is
   a pled down DUI. I’ve got a certified copy of the judgment
   showing that this was a DUII. He was ordered to attend the
   DUI victim’s impact panel. It shows that this is a negligent
   driving—sorry a—a DUI judgment amended to Negligent
   Driving in the First Degree. He was ordered to obtain and
   use an ignition interlock device, undergo alcohol and substance classes, and he stated in his petition that on April
   10th, 2016 in Pasco, Washington I did operate my motor
   vehicle in a negligent manner by exhibiting the effects
   of consuming alcohol, and in the State of Washington
   under their statutory system a negligent Driving in the
   First Degree is a predicate offense for a felony DUI. If a
   person were to have a negligent Driving in the First-Degree conviction, a DUI conviction, their third conviction would be a felony DUI, similar to here in the State of
   Oregon.”
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We note here that the state’s counsel referred to a certified
copy of the judgment that he was holding as he spoke, but
he did not technically offer it into the evidentiary record.
Generally, the assertions of counsel are not evidence. State
v. Green, 

, 317 n 11, 

 (1996).
However, in the context of sentencing, courts may rely on
assertions of counsel determined to be “reliable.” State v.
Balkin, 

, 

, rev den, 

 (1995); State v. McNeil, 

, 

 (2000). Although the court made no express reliability
findings, no party on appeal disputes that the Washington
conviction was properly before the court. Defendant did not
object to the state’s reference to the judgment nor claim that
the prosecutor’s description was unreliable. Accordingly, the
Washington conviction was appropriately before the court
and available for it to consider as it formulated defendant’s
sentence.
         Nevertheless, the majority concludes that defendant’s conviction does not qualify and that it essentially
amounted to a conviction for first degree-negligent-but-notimpaired driving. It illustrates its conclusion through hypothetical drivers who sip but do not swallow, keep alcohol or
drugs within reach while driving, drive negligently or recklessly and then cause accidents, but who, according to the
majority, are not impaired. Would that it were so.
         Impaired drivers place themselves and others at
unnecessary risk of injury and death. And, yet, those struggling with alcoholism and other addiction disorders can
recover and achieve sobriety. That is one reason why DUII
diversion programs exist for first-time offenders. And it is a
reason why drug and alcohol treatment programs are ordered
as probationary conditions for repeat offenders. It cannot
seriously be disputed that the risk posed by impaired drivers is significant and likely increases with each additional
conviction for impaired driving. The increasing penalties
for drivers who continue to drive impaired reflects reasonable and prudent intolerance for the risk that those drivers
repeatedly create. Permanent license revocation removes
the opportunity, at least in theory, for a repeat offender to
exercise poor judgment about when he has sipped or swallowed too much to drive safely.
142                                           State v. Ramirez

         The trial court was well within its authority to
revoke defendant’s license because he was convicted of
exactly the type of offense that the Oregon legislature
intended to include as a predicate offense when it expanded
ORS 809.235(1)(b) in 2007 to include the driving offenses
described in subparagraphs (B) and (C). Accordingly, I
dissent.
           Egan, C. J., and DeVore and Tookey, JJ., join in this
dissent.