State v. Renfro

                                  72

    Submitted April 29; remanded for resentencing, otherwise affirmed
                             June 2, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                 KEVIN PAUL RENFRO,
                   Defendant-Appellant.
              Washington County Circuit Court
                   20CR07414; A173832
                              

  Andrew Erwin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
  PER CURIAM
  Remanded for resentencing; otherwise affirmed.
Cite as 

 (2022)                                                   73

           PER CURIAM
         Defendant appeals from a judgment of conviction for one count of driving under the influence of intoxicants (DUII), ORS 813.010 (2019)1 (Count 1), and one count
of reckless driving, ORS 811.140 (Count 2). On appeal,
defendant challenges the use of a prior conviction under
California Vehicle Code (Cal. Veh. Code) section 23152(b)
to permanently revoke defendant’s driving privileges under
ORS 809.235, arguing that the California conviction was
not a statutory counterpart. We agree with defendant and,
accordingly, remand for resentencing.
         ORS 809.235(1)(b)(A) requires a court to order the
permanent revocation of a defendant’s driving privileges
upon conviction of DUII if the defendant has two prior convictions for DUII under ORS 813.010 or its “statutory counterpart” in another state. Another state’s statute is a statutory counterpart if its elements are the same or nearly the
same as the elements of the Oregon statute to which it is
compared. State v. Guzman/Heckler, 

, 

 (2019).
         Cal. Veh. Code section 23152(b) creates a rebuttable presumption that a person commits DUII if they have
a blood-alcohol content over .08 percent within three hours
of driving. ORS 813.010 (2019), in contrast, provides that a
person commits DUII if they drive a vehicle while having
a blood-alcohol content of over 0.08 percent. In light of that
difference, the state concedes on appeal that Cal. Veh. Code

    1
       In 2021, the legislature amended ORS 813.010(1), creating a new subsection (d) that provides,
         “A person commits the offense of driving while under the influence of
    intoxicants if the person drives a vehicle while the person:
         “…
         “(d) [w]ithin two hours after driving a vehicle, and without consuming
    alcohol in the intervening time period, 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 made under ORS 813.100, 813.140 or 813.150.”
Or Laws 2021, ch 480, § 1; ORS 813.010(1)(d).
    That amendment does not apply in this case because defendant both committed the crime and was sentenced before the amendment took effect on
July 14, 2021. See Or Laws 2021, ch 480, § 6. Accordingly, all of our references to
ORS 813.010 in this opinion are to the 2019 version of the statute.
74                                            State v. Renfro

section 23152(b) is not a statutory counterpart for purposes
of ORS 813.010 (2019), and we accept the concession.
         The state argues that, despite the concession of
error, we should nevertheless affirm the judgment on an
alternative basis that was not raised in the trial court. “To
do so, we would have to both (1) conclude that the predicate conditions for considering such an argument are met,
as described in Outdoor Media Dimensions Inc. v. State
of Oregon, 

, 

 (2001), and
(2) choose to exercise our discretion to affirm on a basis
raised for the first time on appeal.” State v. Shields, 

, 

 (2021). Here, the state has neither addressed the Outdoor Media Dimensions Inc. conditions, nor made any argument as to why, if the conditions
are met, we should exercise our discretion. On that basis
alone, we decline to consider the proffered alternative basis
to affirm. 

 (doing same). Moreover, it appears
that the record may have developed differently had the issue
been raised in the trial court, which would preclude our
considering it in any event. See Outdoor Media Dimensions
Inc., 

 (requiring that the record must be
materially the same as what would have developed had the
alternative basis been raised below). We recently rejected a
similar argument in State v. Nelson, 

, 231-
32, 

 (2022).
        Remanded for resentencing; otherwise affirmed.