UUV Should Not Result in a License Revocation.
by: Gbicklee • May 15, 2011 • no comments
Recently I found out that the DMV's position is that any conviction for UUV initiates a revocation under ORS 809.409(5). ORS 809.409(5) says that the department shall revoke a person's license for any felony conviction "with a material element involving the operation of a motor vehicle." A first conviction under this section mandates a yearlong revocation while a second conviction is a lifetime revocation. There are a number of problems with the DMV's application of ORS 809.409(5) to UUV convictions.
First, UUV does not have "a material element involving the operation of a motor vehicle." It merely punishes use of a vehicle. The statute UUV replaced, Unauthorized Use of a Motor Vehicle explicitly dealt with "motor vehicles." The new statute has eliminated the "motor" from the definition without a corresponding update to ORS 809.409(5). Self-evidently, the newer statute prohibits the unauthorized use of more than "motor vehicles."
It is worth noting the license revocation is not for unlawfully using a motor vehicle. It is for being convicted of a crime that has use of a motor vehicle as an element. Under basic statutory interpretation, this means it does not matter if in fact your client was caught using a motor vehicle. Whether he was or not, he was not convicted of a crime with the essential material element.
Second, one can be convicted for UUV for conduct other than "operating" a vehicle. Use occurs when a person "takes, operates, exercises control over, rides in or otherwise uses another's vehicle, boat, or aircraft without the consent of the owner." People riding in or storing a stolen vehicle can be convicted of UUV without ever operating the vehicle. The DMV suspension guide and their practices do not recognize this possibility. Recently I had a case where a judge vacated the revocation of my client's ODL he had previously imposed. When I sent the order to the DMV, I was told by the DMV's suspension department that the DMV revokes the license of anyone convicted of UUV, with or without a judge's order. That is what they believe ORS 809.409(5) requires them to do. When I asked them what they do in the situation of a person convicted of UUV for merely riding in a stolen car, they said it made no difference. I was left with the impression that they are clearly exceeding their authority under ORS 809.409(5). Trying to convince them of that over the phone, as you can imagine, was not very successful.
Under the DMV's erroneous application of ORS 809.409(5) a person would lose their license for the rest of their life for a second conviction of UUV. The DMV's misinterpretation of the statue has a huge potential impact. To get the courts to clarify DMV's authority under ORS 809.409(5), it will likely take an appeal of a lifetime revocation imposed by a court for a second UUV conviction, to keep the issue from being mooted out.
