17
Submitted November 4, 2021, affirmed July 20, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
FRED SCOTT MEYERS,
Defendant-Appellant.
Marion County Circuit Court
18CR82205; A174249
514 P3d 1147
Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII) under ORS 813.011, which makes DUII a Class C felony if a person had been convicted of DUII at least two times in the 10 years
before the date of the current offense. ORS 813.010(5)(a) also makes DUII a
Class C felony if the current offense was committed in a motor vehicle and the
defendant has been convicted of DUII at least three times in the prior 10 years.
Defendant argues that ORS 813.010 and ORS 813.011 are unconstitutionally
vague in violation of Article I, section 20, of the Oregon Constitution and the Due
Process Clause of the Fourteenth Amendment to the United States Constitution
because they fail to give fair warning as to whether a defendant’s third DUII
conviction is a misdemeanor or a felony and because the statutes give the prosecution “unfettered” charging power. Defendant also argues that he was treated
differently from other similarly situated individuals, in violation of Article I,
section 20. Held: The trial court did not err in ruling that neither ORS 813.010
nor ORS 813.011 is unconstitutionally vague under Article I, section 20, or the
Due Process Clause. Defendant failed to preserve his claim that he was, in fact,
treated differently than other similarly situated individuals.
Affirmed.
Daniel J. Wren, Judge.
R. Grant Cook, D. Stephanie Rivera, and Cook-Law Firm
filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Kamins, Presiding Judge, and Lagesen, Chief Judge,
and Joyce, Judge.
JOYCE, J.
Affirmed.
18 State v. Meyers
JOYCE, J.
Defendant appeals from a judgment of conviction for
driving under the influence of intoxicants (DUII). We write
to address defendant’s arguments that the trial court erred
in denying his motion to dismiss the indictment because the
statutes under which he was charged are unconstitutionally
vague and because he was treated unequally as compared to
similarly situated individuals.1 We affirm.
Defendant was charged with driving under the
influence of intoxicants in 2018. Defendant had two previous
convictions for the same offense, both in 2012. Accordingly,
the state charged defendant under ORS 813.011, which
makes driving under the influence of intoxicants a Class C
felony if a person had been convicted of driving under the
influence (as defined in ORS 813.010) “at least two times in
the 10 years prior to the date of the current offense[.]”2 The
statute imposes a “mandatory minimum term” of 90 days
incarceration. ORS 813.011(3).
Defendant filed a motion to dismiss the indictment.
In doing so, he pointed to ORS 813.010(5)(a), which makes
DUII a felony if the current offense was committed in a
motor vehicle and the defendant has been convicted of the
same offense “at least three times” in the prior 10 years.
(Emphasis added.) Under that statute, defendant could not
have been charged with a Class C felony because he had
two—not three—previous DUII convictions. He argued that
ORS 813.010 and ORS 813.011 are unconstitutionally vague
in violation of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution3 and Article I,
section 20 of the Oregon Constitution,4 both because they fail
1
We reject defendant’s sufficiency of the evidence claim of error without
discussion.
2
ORS 813.011 was enacted through the ballot initiative process in 2010; the
intent of the initiative was to impose a mandatory-minimum sentence for individuals who had been convicted of at least two prior driving under the influence
offenses in the previous 10 years. Official 2010 General Election Voters’ Pamphlet
at 46, 47.
3
That amendment provides, in relevant part: “No State shall … deprive
any person of life, liberty, or property, without due process of law.”
4
Article I, section 20, of the Oregon Constitution provides: “No law shall
be passed granting to any citizen or class of citizens privileges, or immunities,
which, upon the same terms, shall not equally belong to all citizens.”
Cite as 321 Or App 17 (2022) 19
to give fair warning as to whether a defendant’s third DUII
conviction is a misdemeanor or a felony and because the
statutes give the prosecution “unfettered” charging power.
The trial court denied defendant’s motion to dismiss, concluding that the statutes clearly identified the proscribed conduct: driving under the influence of intoxicants.
It also ruled that the prosecution’s charging decisions were
constrained by the elements of the statutes; the state, for
instance, could not charge defendant under ORS 813.010
because he did not have three prior DUII convictions. The
court then convicted defendant of driving under the influence and imposed ORS 813.011(3)’s mandatory minimum
sentence.
Defendant filed a motion for the trial court to reconsider its verdict. At the hearing on that motion, defendant
reiterated his vagueness arguments. He also asserted that
he “is being treated differently than some other joe blow who,
for whatever reason the [prosecutor] decides to charge it as a
misdemeanor because they have that option.” In defendant’s
view, the prosecutor’s office had “no standards or protocol
they can rely on for making a charging decision. They just
pick one. And how do they do that, that’s a privileges and
immunities issue.” The trial court denied defendant’s motion
to reconsider.
On appeal from the judgment of conviction, defendant reprises his arguments that ORS 813.010 and ORS
813.011 are unconstitutionally vague and violate Article I,
section 20, of the Oregon Constitution and the Due Process
Clause. He also argues that he was, in fact, treated differently from other similarly situated individuals. We review
for legal error. See State v. Illig-Renn, 341 Or 228, 238-40,
142 P3d 62 (2006) (applying that standard). We agree with
the trial court that the statutes are neither unconstitutionally vague under Article I, section 20, nor under the Due
Process Clause. We also conclude that defendant failed to
preserve his claim that he was treated differently than others
similarly situated, in violation of Article I, section 20.
A criminal statute is unconstitutionally vague under
Article I, section 20, if it “give[s] unbridled discretion to
judges and jurors to decide what is prohibited in a given
20 State v. Meyers
case.” Illig-Renn, 341 Or at 239 (quoting State v. Graves,
299
Or 189, 195,
700 P2d 244 (1985)). For due process purposes,
a statute is vague if it “either contains no identifiable standard or employs a standard that relies on the shifting and
subjective judgments of the persons who are charged with
enforcing it” or if it “fails to provide fair warning” of the conduct that it prohibits. Illig-Renn,
341 Or at 240-41 (citation
omitted).
We conclude that the statutes are not vague, both
because they clearly identify the prohibited conduct and
because they limit discretion to decide what conduct is
prohibited. As an initial matter, the statutes provide “fair
warning of the conduct that is prohibited.” State v. Krueger,
208 Or App 166, 171,
144 P3d 1007 (2006). Under both statutes, the prohibited conduct is driving under the influence
of intoxicants. The statutes likewise do not delegate “unbridled discretion” about what and whom to punish: The statutes clearly delineate the acts that a defendant must commit
to be prosecuted and, as relevant here, the number of times
that a person must commit them before they can be charged
with a felony.
Indeed, defendant acknowledges as much, agreeing
that both statutes “provide that a person commits the offense
of DUII if the person drives under the influence of intoxicants[.]” But he nonetheless asserts that “the statutes do not
provide certainty about whether said conduct rises to the
level of a misdemeanor or a felony after three or four DUII
convictions.” (Emphasis omitted.) But the vagueness inquiry
focuses on the discretion to decide “what conduct is prohibited” by the statute. State v. Farris, 312 Or App 618, 621,
492
P3d 744 (2021) (citing Illig-Renn,
341 Or at 239 (emphasis
added)); see also Graves,
299 Or at 195 (“The terms of a criminal statute must be sufficiently explicit to inform those who
are subject to it of what conduct on their part will render
them liable to its penalties.”). A statute is not vague simply
because the state can choose to prosecute a person under
different statutes with different penalties. United States v.
Batchelder,
442 US 114, 123-26,
99 S Ct 2198,
60 L Ed 2d 755
(1979) (rejecting vagueness challenge where the defendant’s
conduct violated two statutes with different penalties).
Cite as
321 Or App 17 (2022) 21
Defendant’s central complaint on appeal appears to
be less one of vagueness and more one of what he perceives
to be “unequal treatment” by the prosecution in exercising
its discretion to charge him with a felony, rather than a misdemeanor, in violation of Article I, section 20. Defendant
invokes State v. Savastano, 354 Or 64, 96,
309 P3d 1083
(2013), which made clear that a person can bring an individual claim that the state, in its exercise of prosecutorial discretion, “in fact denied defendant individually … an equal
privilege … with other citizens of the state similarly situated” in violation of the privileges and immunities clause.
We begin by addressing the state’s argument that
defendant did not preserve that issue. Although the concept
of “discretion” is relevant both to whether a law is vague
under Article I, section 20, and to whether the exercise of
prosecutorial discretion comported with Article I, section 20,
the analytical frameworks are distinct. As described above,
a statute is vague if it “delegates uncontrolled discretion”
as to what conduct the law proscribes. Illig-Renn, 341 Or at
239. In contrast, a person bringing an individually based
privileges and immunities claim under Article I, section 20,
must show that the prosecution, in the exercise of their discretion, in fact treated a defendant differently than a similarly situated person. Savastano,
354 Or at 96. A prosecutor’s decision complies with Article I, section 20, “as long as
no discriminatory practice or illegitimate motive is shown
and the use of discretion has a defensible explanation” in the
individual case.
Id. at 83 (quoting State v. Clark,
291 Or 231,
246,
630 P2d 810 (1981)).
To demonstrate preservation, defendant relies on
his argument below that the statutes allow unfettered discretion by judges and juries on whom and what to punish.
But as just explained, that argument relates to his challenge to the statutes being vague, not to whether the prosecution in this case violated Article I, section 20, by treating
him differently than others similarly situated.
To be sure, at the hearing on defendant’s motion
for reconsideration, defendant argued that he was being
treated differently from other similarly situated individuals.
Even assuming that defendant could have preserved his
22 State v. Meyers
differential-treatment challenge at that stage,5 the challenge would fail on its merits. The statutes, and the discretion that they confer upon prosecutors, no doubt give rise
to the possibility that similarly situated defendants will be
treated differently in a way that violates Article I, section 20.
But, as a consequence of the Supreme Court’s decision in
Savastano to overrule State v. Freeland, 295 Or 367,
667 P2d
509 (1983), it was defendant’s burden to show that he in fact
was the subject of differential treatment. He did not do that.
He offered no evidence that he was “in fact denied” equal
treatment to those who are similarly situated. Savastano,
354 Or at 96. That is, he did not show that other people
in similar circumstances were charged with misdemeanors
rather than felonies.
Id. at 95-96 (“Article I, section 20, does
not require consistent adherence to a set of standards or a
coherent, systematic policy”; rather, a defendant bears “the
burden of demonstrating a prima facie violation of Article I,
section 20, by showing that he … was treated differently
than a similarly situated person”).
Affirmed.
5
But see Hinman v. Silver Star Group, LLC, 280 Or App 34, 38 n 2,
380 P3d
994 (2016) (“Generally, a party cannot preserve an issue for appellate review by
raising it for the first time in a reconsideration motion.”).
