State v. Koelzer

Under ORS 809.235(1)(b), a person’s driving privileges shall 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.”

Defendant was convicted of one count of driving under the influence of intoxicants, ORS 813.010. On appeal, Defendant asserted two challenges: first, to the permanent revocation of her driving privileges; and second, to the imposition of the $2000 fine. She argued that one of her three DUII convictions was under Alaska statue, which does not count as a statutory counterpart to Oregon’s statute, because the elements in both are not the same or nearly the same. Under ORS 809.235(1)(b), a person’s driving privileges shall 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.” The Court found that the elements were not the same in both statutes because Alaska’s statute contains a four-hour time window and Oregon’s does not. Therefore, Defendant’s conviction under AS 28.35.030(a)(2) was not a statutory counterpart to ORS 813.010. Defendant relied on the same argument regarding imposition of the fine. The state responded that defendant’s conviction on this case was considered a third conviction for purposes of applying the fine provisions. The Court agreed and affirmed imposition of the fine, because fine provisions are not affected by the statutory counterpart limitation. Portion of judgment revoking defendant’s driver’s license REVERSED.