143
Submitted February 27, 2023, portion of judgment revoking defendant’s driver’s
license reversed, remanded for resentencing, otherwise affirmed July 19, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
SHEY BRIELLE KOELZER,
Defendant-Appellant.
Lane County Circuit Court
19CR74196; A176393
534 P3d 299
Defendant appeals from a judgment of conviction for one count of driving
under the influence of intoxicants (DUII), ORS 813.010 (2017), amended by Or
Laws 2021, ch 253, § 6. She challenges her sentence, assigning error to the application of ORS 809.235(1)(b) to permanently revoke her driving privileges and of
ORS 813.010(6) (2017) to the imposition of a $2,000 fine. According to defendant,
neither ORS 809.235(1)(b) nor ORS 813.010(6) (2017), both of which apply to a
defendant’s third or subsequent DUII conviction, applied to her case. She argues
this was not a third DUII conviction for the purpose of those statutes because one
of her prior DUII convictions occurred under an Alaska DUII statute that was
not a “statutory counterpart” to Oregon’s, as required under ORS 809.235(1)(b).
Held: Alaska and Oregon DUII statutes were not statutory counterparts as the
elements in both were not the same or nearly the same. State v. Guzman, 366
Or 18, 47,
455 P3d 485 (2019). While the Alaska DUII statute permitted a DUII
conviction to be based on a defendant’s blood alcohol level observed “within four
hours” after the alleged offense was committed, ORS 813.010 (2017) considered
the defendant’s blood alcohol level while driving. The trial court therefore erred
in permanently revoking defendant’s driving privileges. The court nevertheless did not err in imposing the $2,000 fine because the ORS 813.010(6) (2017)
fine provision was not affected by the ORS 809.235(1)(b) statutory counterpart
limitation.
Portion of judgment revoking defendant’s driver’s license reversed; remanded
for resentencing; otherwise affirmed.
Jay A. McAlpin, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
144 State v. Koelzer
ORTEGA, P. J.
Portion of judgment revoking defendant’s driver’s license
reversed; remanded for resentencing; otherwise affirmed.
Cite as 327 Or App 143 (2023) 145
ORTEGA, P. J.
Defendant appeals from a judgment convicting her
of one count of driving under the influence of intoxicants
(DUII), ORS 813.010 (2017), amended by Or Laws 2021,
ch 253, § 6.1 She raises two challenges to the sentencing proceedings, the first to the trial court’s permanent revocation
of her driving privileges and the second to the imposition of
a $2,000 fine. The state concedes that the trial court erred
in permanently revoking defendant’s driving privileges, and
we agree. However, we conclude that the imposition of the
fine was not erroneous. We therefore reverse the permanent
revocation of defendant’s driving privileges and otherwise
affirm.
We review the propriety of a trial court’s sentence
for legal error. State v. Coates, 288 Or App 586, 587,
406 P3d
1123 (2017). We begin by providing the background facts, as
presented at trial, and then recount the procedural facts.
Defendant was walking along Territorial Highway
and a driver stopped to check on her. She told the driver that
she had wrecked her car. According to the driver, defendant
“was very drunk.” The deputy sheriff who arrived to investigate the incident also observed that defendant appeared to
be intoxicated. After she performed poorly on field sobriety
tests, defendant was arrested and taken to jail, where she
was given a breath test that produced a blood alcohol content result of 0.14 percent, which is beyond the legal limit.
The state charged defendant with DUII, alleging
that she unlawfully drove a motor vehicle upon a highway
while under the influence of intoxicating liquor. Defendant
pleaded not guilty, and her case went to trial by a jury. At
trial, the state’s evidence included an audio recording of the
9-1-1 call made by the driver who first approached defendant
as well as that driver’s testimony, photos of the scene, the
results of defendant’s blood alcohol test, and testimony from
the investigating officers. Ultimately, the jury convicted
defendant of DUII.
1
All references to ORS 813.010 are to ORS 813.010 (2017), the version of the
statute in effect at the time that defendant was stopped for DUII. We therefore
refer to that statute as ORS 813.010 (2017).
146 State v. Koelzer
During the sentencing proceeding, the state asked
the court, among other things, to permanently revoke defendant’s driving privileges under ORS 809.235, asserting that
this was her third DUII conviction. The state argued—and
defendant does not dispute—that she had two prior DUII
convictions, a 2003 conviction in Alaska and a 2013 conviction in Oregon. The state further asked the court to order
defendant to pay a $2,000 fine, as provided under ORS
813.010(6)(c) (2017). Defendant argued that the state had not
provided a judgment or other proof of defendant’s conviction
under the Alaska DUII statute, so this should not count as
her third DUII conviction justifying permanent revocation
of her driving privileges. The trial court disagreed with
defendant, imposed the $2,000 fine, and suspended her driving privileges for life.
On appeal, defendant asserts two challenges, the
first to permanent revocation of her driving privileges, which
the state concedes was erroneous, and the second to imposition of the $2,000 fine. In a combined argument, defendant
maintains that because one of her three DUII convictions
was under an Alaska DUII statute that is not a “statutory
counterpart” to Oregon’s statute given that Alaska criminalizes a broader range of conduct, both the revocation of
her license and the imposition of the highest statutory fine
were erroneous.
We begin with defendant’s first assignment of error
and explain why we agree that permanent revocation of her
driving privileges was erroneous. ORS 809.235(1)(b) provides that “[t]he court shall order that a person’s driving
privileges be permanently revoked … if the person is convicted for a third or subsequent time” of driving while under
the influence of intoxicants in violation of ORS 813.010
or its “statutory counterpart” in another jurisdiction. As
defendant argues and the state concedes, AS 28.35.030(a)(2)
(Alaska’s DUII statute) was not a “statutory counterpart” to
ORS 813.010 (2017) because the elements in both are not the
same or nearly the same. State v. Guzman/Heckler, 366 Or
18, 47,
455 P3d 485 (2019) (a foreign statute and an Oregon
statute are “statutory counterparts” when they have elements that are “the same as or nearly the same”); see also
id.
at 38 (“when [a] foreign offense reaches conduct that is less
Cite as
327 Or App 143 (2023) 147
culpable than that involved in the Oregon offense, then that
is an indication that the foreign offense is not a statutory
counterpart”). Here, AS 28.35.030(a)(2) permitted a conviction for DUII if a defendant is found to have a 0.08 blood
alcohol level “within four hours” after the alleged offense
was committed. ORS 813.010 (2017), however, did not contain the same four-hour time window that Alaska’s statute
did but instead required proof that a defendant presented a
0.08 blood alcohol level while driving.2 Because the elements
in both statutes were not the same or nearly the same given
the Alaska statute’s broader scope, the trial court erroneously considered defendant’s Alaska DUII conviction in
revoking defendant’s driving privileges.
We turn to defendant’s second argument, challenging the imposition of a $2,000 fine based on the same arguments about whether the statute that formed the basis of
her Alaska DUII conviction was a statutory counterpart to
ORS 813.010 (2017). The fine was imposed based on ORS
813.010(6) (2017), which provides:
“(6) In addition to any other sentence that may be
imposed, the court shall impose one or more of the following fines on a person convicted of driving while under the
influence of intoxicants as follows:
“…
“(b) For a person’s second conviction, a minimum of
$1,500.
“(c) For a person’s third or subsequent conviction, a
minimum of $2,000 if the person is not sentenced to a term
of imprisonment.”3
2
Oregon’s DUII statute, ORS 813.010 (2017), provided:
“(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 made
under ORS 813.100, 813.140 or 813.150.”
The 2003 version of Alaska’s DUII statute, AS 28.35.030(a)(2), provided that
a person’s punishable blood alcohol level could be “determined by a chemical test
taken within four hours after the alleged offense was committed.”
3
We observe that ORS 813.010(6)(c) (2017) provided that a $2,000 fine should
be imposed if a defendant “is not sentenced to a term of imprisonment.” Defendant
does not argue that the fact that she was sentenced to 60 days in county jail as
148 State v. Koelzer
According to defendant, because the Alaska DUII conviction
was not under a statutory counterpart to the Oregon’s DUII
statute, she had only two qualifying DUII convictions and
the fine imposed should have been lower, as provided in ORS
813.010(6)(b) (2017). The state argues in response that defendant’s conviction on this case was a “third or subsequent
conviction” for the purpose of applying the fine because the
fine provisions in ORS 813.010(6) (2017) are not affected by
the ORS 809.235(1)(b) statutory counterpart limitation.
We agree with the state. Contrary to defendant’s
argument, ORS 813.010(6) (2017) does not include a requirement that prior convictions for driving under the influence
of intoxicants must be under the Oregon statute or its statutory counterparts in other jurisdictions to be counted for
purposes of assessing a fine. Because defendant had two
prior convictions for DUII, the conviction at issue marks her
“third or subsequent conviction.” Accordingly, the trial court
did not err in imposing the $2,000 fine pursuant to ORS
813.010(6)(c) (2017).
Portion of judgment revoking defendant’s driver’s
license reversed; remanded for resentencing; otherwise
affirmed.
a condition of her probation impacts the propriety of imposition of a $2,000 fine
in her case. See State v. Frier, 264 Or App 541, 547,
333 P3d 1093 (2014) (a fivemonth jail sentence as a condition of the defendant’s probation counted as a “term
of imprisonment,” and so the defendant was not subject to the mandatory minimum $2,000 fine under ORS 813.010(6)(c) (2017)). As a result, we do not consider
that issue.
