216
Submitted June 2, affirmed September 20, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
KAITLIN RENEE COY,
Defendant-Appellant.
Multnomah County Circuit Court
21VI105849; A179312
537 P3d 178
Defendant appeals from the trial court’s judgment convicting her of failure to obey a traffic control device under ORS 811.265 for running a red light.
Defendant, who was issued the citation based on a photo red light camera, ORS
810.436, contends that the trial court erred in denying her motion to dismiss
the citation because the state failed to prove that she was properly served with
the citation. Held: The Court of Appeals concluded that a conviction under ORS
811.265 does not require proof that defendant was served with the citation.
Although service of the citation is a condition mandated by ORS 810.436, the
appropriate way to challenge the existence of that condition was in a pretrial
motion. Because defendant failed to raise the issue before trial, the trial court did
not err in denying defendant’s motion to dismiss.
Affirmed.
Bernadette H. Bignon, Judge.
Kaitlin Coy filed the brief pro se.
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.
POWERS, J.
Affirmed.
Cite as 328 Or App 216 (2023) 217
POWERS, J.
Defendant appeals from the trial court’s judgment
convicting her of failure to obey a traffic control device
under ORS 811.265 for running a red light. Defendant, who
was issued the citation based on a photo red light camera,
ORS 810.436, contends that the trial court erred in denying
her motion to dismiss the citation because the state failed
to prove that she was properly served with the citation.
As explained below, consistent with how we have decided
similar challenges to a citation based on photo radar, we
conclude that the court did not err in denying defendant’s
motion to dismiss as untimely. Accordingly, we affirm.
The relevant facts are mainly procedural and
uncontested. ORS 810.434 provides that cities may operate
cameras designed to photograph drivers who violate specified provisions of the traffic code, including failing to obey
a traffic control device under ORS 811.265. The intersection
at SE Stark Street and 99th Avenue in the City of Portland
is one such intersection that is monitored by traffic control
cameras that photograph vehicles when they fail to obey a
traffic signal. A camera photographed a vehicle registered
to defendant as it entered the intersection after the light
had turned red. A citation was mailed to defendant at her
registered address in Oregon City, Oregon. Defendant did
not appear or respond to the citation, and the court entered
a default judgment. The Notice of Conviction and Entry of
Judgment was mailed to the same address in Oregon City.
Months later, the DMV sent a notice to defendant
at an address in Gladstone, Oregon, notifying her that her
driving privileges would soon be suspended because of the
citation and her failure to appear. Defendant filed a motion
for relief from the default judgment, in which she explained
that she had never received the original citation. The court
granted her motion, ordered relief from the default judgment, and set a date for trial.
On the day of trial, defendant had a discussion with
the officer who issued the citation before trial started, which
the officer then brought to the court’s attention at the beginning of the hearing. The officer told the court that defendant
218 State v. Coy
mentioned that she intended to call her attorney and that
the officer was not sure whether defendant wanted to proceed to trial. The court asked defendant, who was appearing
without counsel, whether she wanted to proceed to trial or
request a setover. Defendant told the court twice that she
wanted to proceed to trial. Importantly, defendant did not
tell the trial court why she wanted to proceed to trial or that
she was planning to challenge the requirements related
to notice of the citation. The court then began the trial by
explaining that the state must prove the elements of the violation by a preponderance of the evidence.
As part of its case-in-chief, the state entered into
evidence the photos and video of defendant’s vehicle entering the intersection after the light had turned red. In her
testimony, defendant asserted that she had never received
notice of the citation, which the trial court understood to
be a motion to dismiss. The trial court explained that her
argument needed to be raised pretrial and then explained
again when it issued its ruling that issues regarding receipt
of the citation could be raised only prior to the start of trial:
“[E]ven if you had just stated it as a non-attorney prior
to us getting started, I would’ve addressed it. And we
would have had a trial on those facts. We didn’t. So we are
at the point of whether or not the violation of [ORS] 811.265
occurred, and I find that it did.”
The court then entered a judgment of conviction for violating ORS 811.265 and imposed a fine.
On appeal, defendant renews the argument that
she made below by contending that the trial court erred in
denying her motion to dismiss and convicting her of violating ORS 811.265 because she never received notice of the
citation. Relying on State v. King, 199 Or App 278,
111 P3d
1146, rev den,
339 Or 544 (2005), the state remonstrates
that a conviction under ORS 811.265 does not require that
it prove that defendant received the citation and, therefore,
the court properly denied defendant’s motion to dismiss.
We review a trial court’s denial of a motion to dismiss for errors of law. State v. Ritchie, 306 Or App 622, 623,
475 P3d 903 (2020), rev den,
367 Or 709 (2021). As explained
Cite as
328 Or App 216 (2023) 219
below, we conclude that the trial court did not err in denying
defendant’s motion to dismiss.
We begin with the text of ORS 811.265, which provides, in part:
“(1) A person commits the offense of driver failure to
obey a traffic control device if the person drives a vehicle
and the person does any of the following:
“(a) Fails to obey the directions of any traffic control
device.
“(b) Fails to obey any specific traffic control device
described in ORS 811.260 in the manner required by that
section.”
The legislature authorized the issuance of traffic citations
for violations of ORS 811.265 based on photographs from
traffic cameras when it enacted ORS 810.436. The photo red
light statute provides, in part:
“(1) Notwithstanding any other provision of law, if a
city chooses to operate a camera that complies with this
section and ORS 810.434, a citation for violation of ORS
811.265 may be issued on the basis of photographs from a
camera taken without the presence of a police officer if the
following conditions are met:
“…
“(d) The citation is mailed to the registered owner of
the vehicle, or to the driver if identifiable, within 10 business days of the alleged violation.”
ORS 810.436.
As evidenced by the plain language of those statutes, ORS 811.265 does not include as an element of the
offense a proof of service requirement that the state must
prove. We recognize, however, that service of the citation
is mandated by ORS 810.436. At issue, then, is when and
how a defendant may properly challenge lack of service of
the citation as required by ORS 810.436. We answered that
question in King, which raised a similar challenge to the
framework for photo radar tickets under ORS 810.439.
In King, the defendant was issued a speeding citation based on a photo radar device under ORS 810.439. 199
220 State v. Coy
Or App at 280. ORS 810.439(1)(a) sets out the conditions
that must be met for a citation to be issued, which includes
a requirement that the notice be “mailed to the registered
owner of the vehicle within six business days of the alleged
violation.” ORS 810.439(1)(a)(E). The defendant contended
that the trial court erred in denying his motion for judgment
of acquittal because the state failed to produce evidence
proving that the citation was ever mailed to him. King, 199
Or App at 283. Analyzing ORS 810.439, we concluded that
the conditions listed in subsection (1)(a) are conditions precedent for the issuance of a citation.
Id. at 284. We explained
that, although the conditions are ones that must be met
before the citation is issued, the conditions themselves are
not added elements that the state must prove for the statutory violation for speeding.
Id. Accordingly, we concluded
that “the appropriate time to challenge the existence of the
conditions precedent to the issuance of the citation is in a
pretrial motion aimed at the efficacy of the charging instrument.”
Id. at 285. We have also reaffirmed that holding in
State v. Daly,
275 Or App 1012, 1019,
365 P3d 1177 (2015)
(adhering to King and concluding that the trial court erred
in denying the defendant’s motion as premature).
We apply that same reasoning to defendant’s challenge in this case. Similar to ORS 810.439(1), which sets
out the conditions required for issuance of citations based
on photo radar, ORS 810.436(1) sets out the conditions
required for issuance of citations based on traffic camera
photographs. See also State v. Jackson, 318 Or App 370, 373,
507 P3d 727 (2022) (explaining that the conditions set out
in ORS 810.420 are conditions precedent for the issuance of
a citation using a speed measurement device, and thus, the
proper time to challenge the existence of those conditions is
before trial).1 Accordingly, as we did with ORS 810.439(1),
we conclude that ORS 810.436(1) sets out conditions precedent for the issuance of a citation, and the appropriate way
to challenge the existence of those conditions is with a pretrial motion.
1
In Jackson, after acknowledging the holdings of King and Daly, we
addressed the merits of the defendant’s argument because the parties litigated
the issue at trial and the state did not contend that it was prejudiced by the
defendant’s failure to raise the issue pretrial. See 318 Or App at 374. As we have
noted, neither of those circumstances exist in this case.
Cite as
328 Or App 216 (2023) 221
Here, defendant failed to raise the proof of service
issue prior to trial. During pretrial discussions with the
officer, defendant explained that she was not able to consult with her attorney, but twice declined the option to set
over the trial until a later time. Thus, although it appears
that defendant believed that she would be able to challenge
her citation for violation of ORS 811.265 during the trial by
arguing that she was never served with the citation, that
belief runs contrary to how that type of challenge must be
raised. Further, although defendant also contends that she
raised the issue of lack of service in discussions with the officer prior to the start of trial and in her motion to set aside
the default judgment, neither of those methods sufficiently
alerted the trial court before trial began that she was challenging having received proper notice of the citation. First,
defendant did not tell the trial court about the content of
her discussions with the officer when the court asked her
if she wanted a setover. Second, her motion to set aside the
default judgment was granted, which is why the case was
set for trial. In both instances, the trial judge did not have
any information before it that suggested that defendant was
attempting to raise a motion to dismiss pretrial. Thus, when
defendant raised the notice issue during her testimony, the
court did not err by declining to address that argument
because it was not made pretrial as King and Daly have held
in a similar context. That is, although the trial court could
have addressed the argument, especially considering that
defendant was acting without an attorney and assuming
that the parties had an opportunity to develop an appropriate record, the trial court was not required to do so.
In sum, because the conditions in ORS 810.436(1)
are not elements of the statutory violation—but are instead
conditions precedent to the issuance of a citation—we conclude that the trial court did not err in denying defendant’s
motion to dismiss.
Affirmed.
