S058369, Opinion — State v. Kellar

626
Argued and submitted November 9, 2010, decision of Court of Appeals and
judgment of circuit court affirmed February 19, 2011
STATE OF OREGON,
Respondent on Review,
v.
MARK ALLAN KELLAR,
Petitioner on Review.
(CC 08CR0241; CAA139320; SC S058369)
247 P3d 1232
CJS, Motor Vehicles§ 164.8.
On review from the Court of Appeals.*
Lindsey K. Detweiler, Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review.
* Appeal from Coos County Circuit Court, Martin E. Stone, Judge. 233 Or
App 621, 226 P3d 718 (2010).

Cite as 349 Or 626 	627
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Rolf C. Moan, Assistant Attorney General, argued the
cause and filed the brief for respondent on review. With him
on the brief were John R. Kroger, Attorney General, and
Mary H. Williams, Solicitor General.
Before De Muniz, Chief Justice, and Durham, Balmer,
Kistler, Walters, and Linder, Justices.**
KISTLER,J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
** Gillette, J., retired December 31, 2010, and did not participate in the deci-
sion of this case. Landau, J., did not participate in the consideration or decision of
this case.

KISTLER,J.
In 	1983, 	the 	legislature 	moved 	the 	prohibition
against driving under the influence of intoxicants (DUH)
from former ORS 487.540 to ORS 813.010. 1 Later, the legis-
lature provided for permanent revocation 2 of a person's
driver's license when, among other things, the person has
been convicted for a third time of DUH "in violation of* * *
ORS 813.010" or the law of another state. See ORS 809.235.
The question that this case presents is whether a conviction
for DUH in violation of former ORS 487.540 can serve as a
predicate conviction for the permanent revocation of a per-
son's driver's license. The trial court held that it could and
permanently revoked defendant's driver's license. The Court
of Appeals affirmed the trial court's judgment without opin-
ion. State v. Kellar, 233 Or App 621, 226 P3d 718 (2010). We
allowed defendant's petition for review and now affirm the
Court of Appeals decision and the trial court's judgment.
On 	February 6, 	2008, 	defendant 	unsuccessfully
attempted to sell his truck at the Bargain Corner car lot in
Coos Bay. Afterwards, the police received a report that defen-
dant was intoxicated and had gone to Allied Motors. A police
officer contacted defendant and, after speaking with him,
asked him to perform field sobriety tests. Defendant refused.
The officer arrested defendant, who later provided a breath
sample that disclosed a blood alcohol content of 0.25 percent.
Defendant was charged with and pleaded guilty to DUH.
At the sentencing hearing, the state represented
that defendant had two prior DUH convictions: one in 1981
and the other in 1989. Defense counsel agreed with that rep-
resentation and observed that it appeared that "back in '81
[the offense for which defendant had been convicted] still was
considered a Class A misdemeanor." 3 Defense counsel noted,
1 Because the act that led to defendant's conviction occurred in 2008, the 2007
version of the Oregon Revised Statutes applies. All references are to that version of
the revised statutes, unless otherwise noted.
2 Although ORS 809.235 refers to "permanent" revocation of a person's driver's
license, the term is not completely accurate. After 10 years, a person whose driver's
license has been permanently revoked may petition t-0 have his or her license rein-
stated. See ORS 809.235(2)(a).
3 The record does not include copies of defendant's 1981 and 1989 convictions.
It appears from defense counsel's statements that the prosecutor had provided

Cite as 349 Or 	629
however, that "the statute that applies to * * * [permanent]
revocation 	for 	a 	third 	conviction, 	[ORS] 	809.235, 	talks
about-talks in terms of convictions for DUii in violation of
[ORS] 813.010. But back in '81 there was no 813.010," only
former ORS 487.540. Defense counsel argued that, under the
plain terms of ORS 809.235, only DUII convictions entered
after the legislature codified that offense as ORS 813.010
could count as predicate convictions for the purposes of per-
manent revocation. As noted, both the trial court and the
Court of Appeals disagreed with that argument, which defen-
dant now presses before this court.
Before turning to defendant's argument, we briefly
describe the two sets of statutes that bear on the issue that he
raises. We begin with the prohibition against DUII. In 1975,
the legislature sought to decriminalize the offense of DUII by
classifying DUII as a traffic infraction rather than a crime.
See Brown v. Multnomah County, 280 Or 95, 97, 570 P2d 52
(1977). 4 This court held in Brown that, even though the leg-
islature had classified DUII as an infraction, a prosecution
for that offense still "retain[ed] too many penal characteris-
tics not to be [considered] a 'criminal prosecution' under arti-
cle I, section 11 of the constitution." Id. at 109. As a result, a
person charged with the traffic infraction of DUII was enti-
tled to "ajury trial, proof beyond a reasonable doubt, and the
many other protections that surround a criminal prosecution
***."Id. at 109-10.
In 1981, the legislature classified DUII as a Class A
misdemeanor. Or Laws 1981, ch 803, § 15. The offense, which
was then codified as former ORS 487.540, provided:
"(l) 	A person commits the offense of driving while
under the influence of intoxicants if the person drives a
vehicle while the person:
counsel with copies of those convictions and that the parties were willing to rely on
the prosecutor's representations at sentencing, without requiring the state to offer
copies of the 1981and1989 convictions into evidence.
4 In 1975, the legislature classified DUII as a traffic infraction. Or Laws 1975,
ch 451, § 87. It provided, however, that a person's second traffic infraction within
five years "shall be prosecuted and be punishable as a Class A misdemeanor* * *."
Or Laws 1975, ch 451, § 134.

Id.
State v. Kellar
"(a) 	Has .10 percent or more by weight of alcohol in the
blood of the person as shown by chemical analysis of the
breath, blood, urine or saliva of the person made under ORS
487.805 to 487.815 and 487.825 to 487.835; or
"(b) 	Is under the influence of intoxicating liquor or a
controlled substance; or
"(c) 	Is under the influence of intoxicating liquor and a
controlled substance."
In 1983, the legislature undertook a comprehensive
revision of the vehicle code. See Or Laws 1983, ch 338. The
legislature explained that, in revising the code, "[i]t is not the
purpose or intent of the Oregon Legislative Assembly to
change the law* * *."Or Laws 1983, ch 338, § 3. Rather, the
legislature's stated purpose was to "simplifly] the language,
establis[h] a single set of definitions for the code, eliminat[e]
confusing references," and the like. Id. As part of that revi-
sion, the legislature repealed much of the vehicle code, which
was then codified as ORS chapters 481 to 487. See id. § 978
(repealing, for the most part, those chapters of the revised
statutes). In the same act, the legislature reenacted the vehi-
cle code, id. §§ 4-977, which was later codified as ORS chap-
ters 801to823.
The 1983 legislature provided that the act revising
the vehicle code would not take effect until January 1, 1986,
approximately two-and-a-half years later. Or Laws 1983, ch
338, § 981. During the interim, the 1983 legislature directed
a joint legislative committee to study the 1983 act and pro-
pose any technical or conforming amendments to the 1985
legislature. See id. § 979. As part of an effort to bridge the
transition between the vehicle code that it had repealed and
the revised code that it had enacted, the 1983 legislature pro-
vided that "[a]ny references to the vehicle laws in effect
before the effective date of the revision are considered to be
references to any corresponding provision in the revision." Id.
§ 3(1). It also provided that "[t]he revision does not affect any
action, suit, proceeding or prosecution * * * involving or with
respect to vehicle laws revised except that the corresponding
provisions of the revision shall be deemed to apply." Id.§ 3(2).
Finally, the legislature provided that "every person shall

Cite as 349 Or 626
consider the revision to be a continuation of the vehicle laws
in effect on the effective date of the revision." Id. § 3(4). 5
As part of the revision of the vehicle code, the 1983
legislature repealed the prohibition against DUII found in
former ORS 487.540, and reenacted the same prohibition,
which was later codified as ORS 813.010. See Or Laws 1983,
ch 338, § 978 (repealing former ORS 487.540); id.§ 587 (reen-
acting the same prohibition). There is no substantive differ-
ence between the 1981 prohibition against DUII found infor-
mer ORS 487.540 and the prohibition against DUII enacted
as part of the 1983 vehicle code revision. Compare former
ORS 487.540(1) and (2) (1981), with Or Laws 1983, ch 338,
§ 587. 6 Not only are the elements of those two prohibitions
identical, but both prohibitions made DUII a Class A misde-
meanor. Id. And, as noted, the legislature provided that the
1983 DUII prohibition it enacted was a continuation of the
1981 DUII prohibition it repealed.
Defendant's argument also requires discussion of
ORS 809.235, which provides for permanent revocation of a
person's driver's license in certain circumstances. Initially,
ORS 809.235 required permanent revocation of a person's
driver's license only when that person had been convicted of
using a motor vehicle as a weapon to commit murder or man-
slaughter. Or Laws 1993, ch 761, § 2. In 2001, the legislature
provided that the class of persons whose licenses were subject
to permanent revocation also included persons convicted of
5 In 1985, the legislature made technical changes to the vehicle code, repealed
certain remaining sections of ORS chapters 481 to 487, and provided that, as of
January 1, 1988, "section 3, chapter 338, Oregon Laws 1983" is repealed. Or Laws
1985, ch 16, § 475. The legislature thus provided that the transitional provision of
the 1983 act revising the vehicle code would expire two years after the 1983 law
went into effect on January 1, 1986.
6 Later in the 1983 legislative session, the legislature reduced the percentage
of blood alcohol content necessary to prove DUH from .10 percent to .08 percent.
See Or Laws 1983, ch 722, § 1. That change went into effect in 1984 and became
part of farmer ORS 487 .540( l)(a) ( 1983). When the 1985 legislature made technical
changes to the 1983 act revising the vehicle code, the legislature amended section
587 of the 1983 act (the section that reenacted the prohibition against DUIIJ to
reflect the lower blood alcohol content. See Or Laws 1985, ch 16, § 293. Section 587
of the 1983 act, as amended, went into effect on January 1, 1986. See Or Laws 1985,
ch 16, § 476 (providing that, although the 1985 act amended sections of the 1983
act, "[n]othing in this [1985] Act affects the operative date of such sections as pro-
vided by chapter 338, Oregon Laws 1983").

632 	State v. Kellar
felony DUii. Or Laws 2001, ch 786, § 1. Two years earlier, the
legislature had provided that a person was guilty of felony
DUii ifthe person "has been convicted of driving while under
the influence of intoxicants in violation of this section [ORS
813.010] or its statutory counterpart in another jurisdiction
at least three times in the 10 years prior to the date of the
current offense* * *."Or Laws 1999, ch 1049, § 1.
In 2003, the legislature amended ORS 809.235 to
require permanent revocation of a person's driver's license "if
the person is convicted of misdemeanor driving while under
the influence of intoxicants under ORS 813.010 for a third
time." Or Laws 2003, ch 346, § 2. The 2003 amendment effec-
tively reduced the number of DUII convictions required for
permanent revocation from four (for felony DUii) to three. It
also contained no time limitation, unlike felony DUII which
required that the three prior DUII convictions have occurred
within 10 years of the fourth DUII. The 2003 amendment to
ORS 809.235, however, limited the class of convictions that
would result in permanent revocation to misdemeanor DUii
convictions in violation of ORS 813.010. In that respect, it
was narrower than the felony DUII statute, which included
prior DUii convictions in violation of ORS 813.010 and its
statutory counterparts in other jurisdictions.
The legislature removed the latter limitation, in
part, in 2005 by amending ORS 809.235 to require perma-
nent revocation of a person's driver's license "if the person is
convicted of misdemeanor driving while under the influence
of intoxicants in violation of ORS 813.010 or its statutory
counterpart in any other jurisdiction for a third or subse-
quent time." See ORS 809.235(1)(b) (2005) (codifying Or
Laws 2005, ch 436, § 1).
Finally, 	in 2007, the legislature expanded ORS
809.235 yet again. As amended in 2007, ORS 809.235(1)(b)
provided:
"The court shall order that a person's driving privileges
be permanently revoked if the person is convicted of felony
driving while under the influence of intoxicants in violation
of ORS 813.010 or if the person is convicted for a third or
subsequent time of any of the following offenses in any
combination:

Cite as 349 Or 626
"(A) 	Driving while under the influence of intoxicants
in violation of:
"(i) 	ORS 813.010; or
"(ii) 	The statutory counterpart to ORS 813.010 in
another jurisdiction.
"(B) 	A driving under the influence of intoxicants
offense in another jurisdiction that involved the impaired
driving of a vehicle due to the use of intoxicating liquor, a
controlled substance, an inhalant or any combination
thereof.
"(C) 	A driving offense in another jurisdiction that
involved operating a vehicle while having a blood alcohol
content above that jurisdiction's permissible blood alcohol
content."
Two of the 2007 legislative changes bear mention.
First, the legislature omitted the term "misdemeanor," found
in the 2003 and 2005 versions of ORS 809.235, as a limitation
on the DUH convictions that can serve as predicate convic-
tions for the purposes of ORS 809.235. Second, the legislature
added subparagraphs (B) and (C), which expanded the cate-
gory of DUH offenses from other jurisdictions that will result
in the permanent revocation of a person's driver's license to
include acts that violate that jurisdiction's DUH laws but
that might not be criminal in Oregon.
With that background in mind, we turn to defen-
dant's argument. Defendant argues that, under the plain text
of ORS 809.235, only a conviction for DUH in violation of
ORS 813.010 counts as a predicate conviction for the perma-
nent revocation of a person's driver's license. Defendant does
not contend that there is any substantive difference between
a misdemeanor DUH conviction in violation of former ORS
487.540 and a misdemeanor DUH conviction in violation of
ORS 813.010. Nor does he dispute that the legislature
intended to permit a broad class of out-of-state DUH convic-
tions to count as predicate convictions for the purposes of
ORS 809.235. He argues, however, that only a narrower class
of in-state DUH convictions can serve as predicate convic-
tions under the plain language of ORS 809.235.

634 	State v. Kellar
If we were to focus 	solely on the 	text of ORS
809.235(1)(b)(A)(i), 	defendant's 	argument is not without
some force. Subsubparagraph (i) refers to convictions for
DUII in violation of"ORS 813.010." It does not refer to DUII
convictions in violation of ORS 813.010 and its statutory
predecessor. It is thus possible to infer, as defendant does,
that the legislature intended to limit in-state predicate con-
victions to those convictions entered after January 1, 1986-
the effective date of the 1983 act that revised and recodified
the vehicle code. As this court has explained, however, a stat-
ute's "text should not be read in isolation but must be consid-
ered in context." Stevens v. Czerniak, 336 Or 392, 401, 84 P3d
140 (2004); see State v. Barrett, 331 Or 27, 32, 10 P3d 901
(2000) (same). In this case, the statutory context cuts against
defendant's interpretation in three respects.
First, when the legislature revised the vehicle code
in 1983, the revisions did not take effect for two-and-a-half
years. During that transition period, the legislature sought to
make three propositions clear. First, "[a]ny references to the
vehicle laws in effect before the effective date of the revision
are considered to be references to any corresponding provi-
sion in the revision." Or Laws 1983, ch 338, § 3(1). Second,
"[t]he revision does not affect any * * * prosecution * * *
involving* * * [the] vehicle laws revised except that the cor-
responding provisions of the revision shall be deemed to
apply." Id. 	§ 3(2). 7 Finally, the legislature provided that
"every person shall consider the revision to be a continuation
of the vehicle laws in effect on the effective date of the revi-
sion." Id. § 3(4).
Read together, those provisions make clear that the
1983 legislature intended the revised vehicle code to be a
seamless continuation of the provisions that preceded them.
More specifically, the 1983 legislature understood the former
7 As we understand the second quoted provision, it provided that, if a DUII
prosecution began under former ORS 487 .540, the 1983 act revising the vehicle
code would have no effect on that prosecution "except that the corresponding prov-
isio[n) of the revision shall be deemed to apply." Or Laws 1983, ch 338, § 3(2). That
is, for prosecutions that straddled the effective date of the 1983 act, what began as
a prosecution under former ORS 487.540 would, if it resulted in a conviction,
become a conviction for DUH in violation of ORS 813.010.

Cite as 349 Or 626 	635
prohibition against DUii and its identically worded replace-
ment to be interchangeable, both in substance and in name.
See note 7. To be sure, later legislatures were free to depart
from that understanding. But, when the 1983 legislature had
specified that ORS 813.010 was a continuation of former ORS
487.540, the reference to ORS 813.010 in ORS 809.235 is,
without more, a slim basis on which to disregard the prior
legislature's statement of the relationship between the two
provisions. 8
A second contextual clue points in the same direc-
tion. ORS 809.235 provides that an out-of-state DUII convic-
tion may serve as a predicate conviction for the permanent
revocation of a person's driver's license, without regard to
when the out-of-state conviction occurred. If defendant is cor-
rect that the reference in ORS 809.235 to DUH convictions
"in violation of** * ORS 813.010" limits in-state DUII con-
victions to those convictions that occurred after January 1,
1986 (the effective date of the 1983 vehicle code revision},
then the legislature has imposed a time limitation on in-state
convictions that it did not impose on out-of-state convictions.
The legislature, of course, could have made that policy choice.
But it is not obvious how that would have furthered the goals
of the statute. And, without some apparent basis for giving
greater effect to out-of-state DUil convictions than in-state
DUII convictions, that context counsels against reading the
reference to convictions in violation of ORS 813.010 as nar-
rowly as defendant would.
A final contextual clue also cuts against defendant's
position. As noted, in 2003, the legislature provided for per-
manent revocation of a person's driver's license "ifthe person
is convicted of misdemeanor driving while under the influ-
ence of intoxicants under ORS 813.010 for a third time." Or
Laws 2003, ch 346, § 2. In 2005, the legislature provided for
e Defendant notes that the 1985 legislature provided that section 3, chapter
338, Oregon Laws 1983-the section that provides for the transition from the for-
mer vehicle code to the reenacted code-was repealed as of January 1, 1988. See Or
Laws 1985, ch 16, § 475(3). While true, we fail to see how that advances defendant's
position. Section 3 of the 1983 act expressly recognizes that the reenacted provi-
sions are a continuation of the former provisions. The 1985 legislature did not repu-
diate that understanding when it provided that section 3 would be repealed as of
January 1, 1988. Rather, it merely recognized that, at some point, the need for a
transitional provision ends.

636 	State v. Kellar
permanent revocation "if the person is convicted of misde-
meanor driving while under the influence of intoxicants in
violation of ORS 813.010 or its statutory counterpart in any
other jurisdiction for a third or subsequent time." ORS
809.235(1)(b) (2005) (codifying Or Laws 2005, ch 436, § 1).
If, as defendant argues, the phrase that the legisla-
ture used in 2003, "under ORS 813.010," or the phrase that it
used in 2005, "in violation of ORS 813.010," referred only to
convictions entered after January 1, 1986 (the effective date
of the 1983 vehicle code revision), then there would have been
no need to require, as the legislature did, that the conviction
also be for a "misdemeanor" DUII. The legislature had clas-
sified DUII as a misdemeanor in 1981, more than four years
before it moved the prohibition against DUII from former
ORS 487.540 to ORS 813.010. Defendant's interpretation
results in a redundancy, something that we seek to avoid in
interpreting statutes. Cf Vsetecka u. Safeway Stores, Inc.,
337 Or 502, 510, 98 P3d 1116 (2004) (interpreting overlap-
ping notice provisions in a workers' compensation statute to
give effect to all of them).
Conversely, if, as the 1983 vehicle code revision sug-
gests, one views the reference to DUII convictions "in viola-
tion of*** ORS 813.010" as referring to both the recodified
statute and the statute that it continued, then the legisla-
ture's use of the restrictive term "misdemeanor" serves an
important purpose. Because a DUII conviction in violation of
former ORS 487.540 could be either for an infraction or a mis-
demeanor, adding the restrictive term "misdemeanor" to
ORS 809.235 precluded the use of infraction DUII convic-
tions to revoke a 	person's driver's license permanently.
Indeed, one inference to be drawn from the addition of the
restrictive term "misdemeanor" to the 2003 and 2005 ver-
sions of ORS 809.235 is that the reference to convictions "in
violation of ORS 813.010" includes convictions in violation
of both the named statute and its identically worded pre-
decessor.9
In that connection, it is worth noting that the 1999 legislature did not use the
restrictive term "misdemeanor" when it provided that a person's fourth conviction
for DUH in violation of ORS 813.010 would result in a conviction for felony DUII.
See Or Laws 1999, ch 1049, § 1. The legislature, however, provided that only prior
convictions within the past 10 years would count as predicate convictions for the

Cite as 349 Or
In 2007, the legislature deleted the term "misde-
meanor" from ORS 809.235, and the parties debate the sig-
nificance of that deletion. On the one hand, deleting the
restrictive term "misdemeanor" could signal a legislative
intent to expand the category of in-state DUII convictions to
include infractions. On the other, it could signal, as defen-
dant argues, an intent not to preclude the use of felony DUII
convictions under out-of-state statutory counterparts. We
need not resolve that debate to decide this case. As noted,
before the trial court, defendant did not dispute that his 1981
conviction was a misdemeanor DUII, and the only issue that
he raised was whether the reference to convictions "in viola-
tion of* * * ORS 813.010" precluded the trial court from rely-
ing on any DUII conviction in violation of former ORS
487.540. In this posture, we need not decide whether the
deletion of the word "misdemeanor" signaled a legislative
intent to permit the use of infraction DUII convictions in vio-
lation of former ORS 487.540 as predicate convictions under
ORS 809.235. Rather, it is sufficient to limit our holding to
misdemeanor DUII convictions in violation of former ORS
487.540. 10 On that issue, we are persuaded by the text and
context of ORS 809.235 that a misdemeanor DUII conviction
in violation of former ORS 487.540 counts as a predicate con-
viction for the purposes of permanent revocation of a person's
driver's license. 11 Accordingly, we affirm the Court of Appeals
decision and the trial court's judgment.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.
purposes of felony DUil-a decision that necessarily restricted prior DUII convic-
tions in violation of ORS 813.010 tc misdemeanor DUil convictions. Conversely,
when the legislature omitted any time limitation, as it did in the 2003 amendment
to ORS 809.235, it added the term "misdemeanor" as a limitation on the type of
DUII convictions that would result in permanent revocation.
10 We have no occasion to consider, and express no opinion on, the question
whether a conviction for an infraction DUII in violation of former ORS 487.540 can
serve as a predicate conviction for the purposes of ORS 809.235.
11 We have considered the legislative history of the various changes to ORS
809.235. See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009) (discussing use
oflegislative history). The legislative history does not bear directly on this issue,
and we base our holding on the statute's text and context.