Does Felony DUII Require Two Prior Convictions, or Three?
by: Rjohnson • May 30, 2011 • no comments
My client is accused of driving under the influence of intoxicants in late 2010. He has two prior convictions for driving under the influence of intoxicants. According to ORS 813.010, he's guilty of a misdemeanor. According to Ch 1 Or Laws 2011, it's a felony.
When I first started working on his case, I spent a good hour trying to work my way through the Oregon Legislature's website, attempting to find the latter statute. I knew it was out there from reading the news, but it has not been made a part of ORS 813.010, and there are enough legislative measures using terms like 'intoxicants' that the search engine doesn't get you there quickly.
So, how would my client know that he was committing a felony rather than a misdemeanor? He's presumed to know the law, of course. But that presumption seems a lot more solid if a reasonably intelligent person could figure out the law by looking. The law at issue here is affirmatively misrepresented by the easy-to-find ORS provision (ORS 813.010 says it takes three priors to get to a felony) and was probably not widely available in print when client committed his offense. I'm having trouble persuading the folks at the legislature to help me out much with the date that the Or Laws volumes get shipped to county courthouses, but it's a 2011 Or Laws cite being applied to his 2010 offense.
It makes sense that due process requires a minimum degree of publicity for the presumption about knowledge of the law to apply, and the statute at issue is awfully close to that minimum. The courts haven't discussed the issue much, but in Lambert v. California, 355 US 225 (1957), a failure-to-register offense was held not to apply to a transient who could not reasonably have been expected to know that the law existed. I'm not sure how far that gets in my case, but the publication of laws has changed over time, and now more laws have emergency clauses and take effect before they're published or reasonably available. The argument will apply, with gradually reducing force, until ORS 813.010 is amended to reflect the change.
