Court: Court of Appeals of Oregon; October 6, 1993; Oregon; State Appellate Court
Defendant was convicted of misdemeanor driving while suspended (DWS) and giving false information to a police officer but appealed only the DWS conviction. The court affirmed the conviction. He faced felony DWS charges based on an indictment alleging unlawful driving on December 18, 1990, while his driving privileges were suspended due to a prior DUII conviction. The state presented two key documents: a letter from the Motor Vehicles Division (MVD) notifying the defendant of his suspension starting December 2, 1988, and an implied consent form indicating another impending suspension effective August 19, 1990, following a subsequent DUII arrest.
Defendant claimed he did not receive the 1988 suspension notice after moving residences and raised a lack of notice defense. The trial court acquitted him of the felony charge due to this lack of notice but convicted him of misdemeanor DWS, determining it was a lesser included offense. Defendant contested this, arguing that misdemeanor DWS is not a lesser included offense of felony DWS and that the indictment did not charge him with the misdemeanor. Although he didn't raise this argument during trial, he asserted it was an apparent error that warranted reversal.
The court analyzed whether misdemeanor DWS is a lesser included offense of felony DWS, concluding that it is not under the facts of this case. It referenced the classification of offenses under Oregon statutes, noting that the nature of the original suspension determines whether the charge is a felony or misdemeanor. In this instance, the felony charge was valid as the suspension stemmed from a DUII conviction, which qualifies for felony treatment. The trial court's earlier acquittal on the felony charge was based solely on the lack of notice regarding that suspension.
The evidence regarding the August 1990 suspension does not support a felony Driving While Suspended (DWS) charge, as it is not among the specified grounds required for such a felony conviction. The indictment's allegation of "unlawfully and feloniously" driving while suspended does not encompass the elements of misdemeanor DWS, which relies on different suspension types per ORS 811.182(4), making misdemeanor DWS not a lesser included offense. Although the state contends that the indictment could imply a misdemeanor charge due to the lack of specificity about the suspension, the indictment clearly charged felonious conduct, which does not support a misdemeanor conviction. This error is evident in the record, indicating that the indictment failed to charge the defendant with all necessary elements of the crime.
Despite this, the court did not address the defendant’s unpreserved argument, noting that the defendant had adequate notice regarding the misdemeanor DWS charge. The state presented evidence of the 1990 suspension notice issued after a DUII arrest, which could substantiate a misdemeanor DWS conviction. The trial court indicated its intention to find the defendant not guilty of felony DWS but guilty of misdemeanor DWS, acknowledging that the state did not overcome the affirmative defense related to the felony charge's notice. The defendant had the opportunity to defend against the misdemeanor charge and was not surprised by the conviction. Consequently, the court declined to review the unpreserved error and affirmed the decision.
