What is a Measure 73 DUII?
by: Nweingart • July 19, 2011 • no comments
On November 2, 2010, the voters of Oregon overwhelmingly approved Measure 73. The measure contained two major portions. The first portion of the measure deals with sentencing on repeat major felony sex offenders. The second portion of the measure changed felony DUII law from requiring three predicate DUII's to two. That measure was then codified by the Legislature as Sections 1-3, Chapter 1, Oregon Laws 2011. It became active on December 2, 2010. It stated, in relevant portion:
Section 3. a. Driving under the influence of intoxicants (ORS 813.010) shall be a class C felony if the defendant has been convicted of driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another jurisdiction, at least two times in the 10 years prior to the date of the current offense. b. Once a person has been sentenced for a class C felony under this section, the 10-year time limitation is eliminated and any subsequent episode of driving under the influence of intoxicants shall be a class C felony regardless of the amount of time which intervenes. c. Upon conviction for a class C felony under this section, the person shall be sentenced to a mandatory minimum term of incarceration of 90 days, without reduction for any reason. d. The state shall fully reimburse any county for the county's costs of incarceration, including any pretrial incarceration, for a person sentenced under this section.
Cut to now. The legislature recently passed Senate Bill 395, which amends the above section of Chapter 1, Oregon Laws 2011. Much more interestingly, though, the legislature included, and the Governor signed the following section:
SECTION 1. ORS 813.012 is amended to read: [ ] (1) The Oregon Criminal Justice Commission shall classify felony driving while under the influence of intoxicants that is committed under the circumstances described in ORS 813.010 (5) as crime category 6 of the rules of the Oregon Criminal Justice Commission. SB 395 (2011)
Thus, ORS 813.012, which used to classify all Felony DUII as a crime category 6 on the grid, now only classifies DUII as described in 813.010(5) as a crime category 6. We should all note that there has been no change to 813.010(5). That statute still describes three prior DUII's or statutory counterparts within ten years. Compare that to Measure 73, (Section 3, Chapter 1, Oregon Laws 2011), which requires two priors within ten years to be a felony DUII.
Thus, the legislature has created two felony DUII provisions. The first, the classic 813.010(5) requires 3 predicate DUII's in ten years. It gets sentenced as a crime seriousness level 6. Then there is the Measure 73 DUII. It requires only two prior DUII's or statutory counterparts within ten years. Currently it remains unclassified in crime seriousness, which makes it subject to OAR 213-004-0004.
"[W]hen a person is convicted of any other felony which is omitted from the Crime Seriousness Scale, the sentencing judge shall determine the appropriate crime category for the current crime of conviction and shall state on the record the reasons for the offense classification."
So, if the state only proves two predicate DUII's, your client's offense remains un-ranked. In Measure 73 cases that proceed to sentencing, you should be prepared to argue your client's grid. I believe that whatever the gridblock is, proportionality requires that it be less than a 6.
