629
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted April 11, affirmed June 29, petition for review denied
November 3, 2022 (370 Or 455)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEPH VINCENT GALLAGHER,
Defendant-Appellant.
Jackson County Circuit Court
20CR24971; A175304
Lisa C. Greif, Judge.
Joel C. Duran, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jeff J. Payne, 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 Lagesen, Chief Judge,
and Hellman, Judge.
POWERS, P. J.
Affirmed.
630 State v. Gallagher
POWERS, P. J.
Defendant appeals from a judgment convicting him
of driving under the influence of intoxicants (DUII), ORS
813.010, arguing that the trial court erred in denying his
motion to suppress. Relying on the legislature’s enactment
of a moratorium on the issuance of specified citations due to
the COVID-19 pandemic, see Or Laws 2020, ch 15, § 21(2),
defendant contends that the deputy lacked a lawful basis
to initiate the traffic stop. As explained below, because it is
uncontested that the legislature enacted that moratorium
months after the deputy stopped defendant, we conclude
that the legislature’s enactment of a retroactive moratorium
on the issuance of specified traffic citations has no bearing
on whether the deputy had probable cause at the time of the
stop. Accordingly, we affirm.
On April 9, 2020, Deputy Reyes was on patrol when
he saw defendant driving without a front license plate.
Assuming that defendant’s car was registered in Oregon
and was required to have a front license plate, Reyes followed defendant. After Reyes got behind defendant’s car,
he noticed that defendant actually had a Louisiana license
plate with a registration sticker from 2019. Believing that
defendant’s registration was expired, Reyes called dispatch
and received confirmation that defendant’s registration had
expired on October 20, 2019. Reyes initiated a traffic stop
based on the expired tag. As defendant pulled over, Reyes
observed defendant turn “too far over to the right” so that
both of his passenger-side tires hit the curb. When Reyes
approached defendant’s car, he saw multiple signs of intoxication and a bottle of hard liquor by defendant’s feet. Reyes
asked defendant to step out of the car and for consent to conduct field sobriety tests. Eventually, Reyes arrested defendant for DUII.
Before trial, defendant moved to suppress the evidence discovered as a result of the traffic stop, arguing that,
under Senate Bill (SB) 1601 (2020), there was a moratorium
on the issuance of citations for having expired registration.
The legislature had adopted SB 1601 in June 2020, which
took effect on July 7, 2020. The bill arose because field
offices for the Driver and Motor Vehicle Services Division
Nonprecedential Memo Op: 320 Or App 629 (2022) 631
(DMV) “were unable to process non-commercial transactions due to the pandemic, [and] many Oregonians [had]
expired driver licenses, permits, and vehicle registrations.”
Exhibit 7, Joint Interim Committee of the First Special
Session, SB 1601, June 25, 2020 (letter from Lindsay Baker,
Assistant Director, Oregon Department of Transportation).
SB 1601 served as an effort to provide “statutory immunity
for certain violations during a certain time period … to
ensure Oregonians [were not] penalized as a result of DMV
office closures.”
Id. Among other provisions, section 21(2) of
the law provides that an officer “may not issue a citation for
a traffic offense based upon a document or credential that
expired or a document that was not submitted to the [DMV]
during the period beginning on March 1, 2020, and ending on December 31, 2020,” and section 21(3) provides that
a court shall dismiss any citations issued in violation of section 21(2). See Or Laws 2020, ch 15, §§ 21(2) - (3).1
1
Section 21 of SB 1601 provides, in part:
“(2) Notwithstanding any other provision of law, a police officer may not
issue a citation for a traffic offense based upon a document or credential that
expired or a document that was not submitted to the department during the
period beginning on March 1, 2020, and ending on December 31, 2020. This
subsection applies to the following offenses:
“(a) Unlawful parking in a space reserved for persons with disabilities
under ORS 811.615. This paragraph applies only to individuals who displayed a disabled person parking permit, issued by this state or another
jurisdiction, at the time of the offense but the permit expired during the
period described in this subsection.
“(b) Operating a vehicle without driving privileges under ORS 807.010.
“(c) Failure to register a vehicle under ORS 803.300.
“(d) Failure to pay the appropriate registration fee under ORS 803.315.
“(e) Permitting unlawful operation of an unregistered vehicle under ORS
803.320.
“(f) Purchase and use of an out-of-state registered vehicle by a resident
under ORS 803.325.
“(g) Failure to surrender out-of-state registration under ORS 803.380.
“(h) Failure to submit a declaration of weight under ORS 803.440.
“(i) Failure to renew vehicle registration under ORS 803.455.
“(j) Improper display of validating stickers under ORS 803.560.
“(k) Failure of a person to hold a trip permit when required under ORS
803.600(10).
“(3) If a police officer issues a citation in violation of subsection (2) of this
section, the court shall dismiss the charge.”
Or Laws 2020, ch 15, § 21.
632 State v. Gallagher
At the suppression hearing, Reyes testified that his
“only basis for the stop was the expired tags.” When asked
about SB 1601, Reyes testified that he was aware of the bill
but explained that it was his understanding that he could
still conduct traffic stops based on probable cause, because
the main objective in conducting traffic stops was “not only
to issue a citation or fine someone for being in violation,” but
also to educate the public.2 Defendant argued that, because
a driver could not receive a citation between March 1, 2020
and December 31, 2020, for expired registration under SB
1601, Reyes lacked any constitutional basis to conduct the
stop, and because the stop was not justified by any other
basis, the stop violated Article I, section 9, of the Oregon
Constitution. In response, the state remonstrated that the
prohibition on issuing citations applied only to documents
that expired during the “period beginning on March 1,
2020, and ending on December 31, 2020,” and that, because
defendant’s registration expired in October 2019, Reyes had
probable cause to stop and investigate defendant for expired
registration. The state further argued that SB 1601 did not
“repeal other laws or violations or limit law enforcement’s
ability to conduct traffic stops on the listed offenses” in section 21, and therefore, the stop was lawful.
The trial court denied defendant’s motion to suppress, concluding that SB 1601 did not apply to the circumstances under which defendant was stopped because defendant’s registration expired in 2019, and “the period of time
in Section 21(2) of March 1[ ], 2020 to December 31[ ], 2020
applie[d] both to citations for traffic offenses based on documents that expired and to documents that were not submitted to the department during that period.” Concluding that
the stop was supported by probable cause, the trial court
denied the motion to suppress. Defendant then entered a
conditional guilty plea, reserving his right to challenge the
court’s denial of his motion to suppress.
On appeal, the parties generally renew the arguments that they made before the trial court, including
2
Although Reyes’s testimony appears to suggest that he believed that SB
1601 was already in effect at the time of the stop, the legislature had not yet
enacted SB 1601 when Reyes initiated the traffic stop.
Nonprecedential Memo Op: 320 Or App 629 (2022) 633
opposing views on how to interpret the text of SB 1601. As
explained below, however, we need not reach the merits of
the parties’ statutory construction arguments because SB
1601 was not in effect at the time Reyes stopped defendant
and because there is nothing in the legislature’s enactment
that affects whether there was probable cause at the time
of the stop. See State v. Bourget-Goddard,
164 Or App 573,
579,
993 P2d 814 (1999), rev den,
330 Or 331 (2000) (explaining that “[p]robable cause is determined on the basis of an
officer’s belief at the time of the stop and its reasonableness
at the time of the stop” (emphasis omitted)); see also State v.
Esplin,
314 Or 296, 304,
839 P2d 211 (1992) (explaining that
probable cause to search refers “to the time that the officer
acts” and that “[a]t that time, the officer must subjectively
believe that a crime has been committed and that a thing is
subject to seizure, and the officer’s belief need only be objectively reasonable then” (emphasis omitted)).
As noted earlier, SB 1601 was adopted in June 2020
and did not go into effect until July 7, 2020, which was three
months after defendant was stopped. Thus, at the time Reyes
initiated the traffic stop of defendant, there was no moratorium on specified traffic offenses. Although SB 1601 applies
retroactively in certain respects and directs a court to dismiss citations for the specified offenses that are covered by
section 21(2) of the bill, defendant never received a citation
for failing to have valid registration. Importantly, defendant
does not otherwise challenge that Reyes had probable cause
to stop defendant’s vehicle.
In short, because SB 1601 did not affect the lawfulness of Reyes’s stop, the trial court did not err in denying
defendant’s motion to suppress.
Affirmed.
