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FILED: May 25, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ERIN ELIZABETH DONOVAN,

Defendant-Appellant.

Jackson County Circuit Court
083840MI
A141100

Robert Millikan, Judge.

Submitted on November 30, 2010.

Peter Gartlan, Chief Defender, and Daniel C. Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Brewer, Chief Judge, and Landau, Judge pro tempore.

SERCOMBE, P. J.

Affirmed.

SERCOMBE, P. J.

Defendant appeals a judgment of conviction for driving while under the influence of intoxicants (DUII), ORS 813.010.(1) She argues that the trial court erred in determining she was ineligible for diversion under ORS 813.215(1). That statute provides that a defendant charged with DUII is ineligible to participate in diversion if, among other things, the defendant has been convicted under the "statutory counterpart" to ORS 813.010 in another jurisdiction within the last 10 years. Defendant has a prior conviction in New York within the last 10 years for "driving while ability impaired." The trial court concluded that the New York statute that includes the "driving while ability impaired" offense is a statutory counterpart to ORS 813.010. On appeal, defendant contends that she was previously convicted for an offense that has no "statutory counterpart" in ORS 813.010 and that she is therefore eligible for diversion. We affirm.

In 2004, defendant was convicted in New York of "driving while ability impaired" in violation of New York Vehicle and Traffic Law (VTL) section 1192(1), which provides, "No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol." In 2008, defendant was charged with DUII in Oregon. She petitioned for a diversion agreement, but the state objected, arguing that she was not eligible for diversion due to her prior New York conviction. After a hearing on defendant's petition, the trial court concluded that VTL section 1192(1) is a "statutory counterpart" to ORS 813.010 and that defendant was thus ineligible to participate in diversion. Defendant then entered a conditional guilty plea, reserving the right to appeal the adverse determination of her diversion eligibility. ORS 135.335(3).

On appeal, defendant contends that VTL section 1192(1) and ORS 813.010 are not "statutory counterpart[s]" because those statutes serve different roles in their respective statutory schemes. Specifically, she argues that VTL section 1192(1) "proscribe[s] conduct that falls below the threshold of Oregon DUII" and that Oregon has no analogue to New York's "driving while ability impaired." Moreover, defendant argues that a violation of VTL section 1192(1) is merely a traffic infraction, rather than a crime, further distinguishing it from the provisions in ORS 813.010.

The state responds that, despite any differences between the statutes, they are statutory counterparts because both are "directed at impaired driving resulting from [consumption of] alcohol or other intoxicants." Alternatively, the state argues that, even if VTL section 1192(1) is not the statutory counterpart to ORS 813.010, defendant was ineligible for diversion under other provisions of ORS 813.215(1) that disqualify a defendant from participating in diversion if convicted of an offense in another jurisdiction "that involved the impaired driving of a vehicle due to the use of intoxicating liquor[.]"(2) We conclude that the trial court did not err in determining that VTL section 1192(1) is a statutory counterpart to ORS 813.010 and that defendant was therefore ineligible for diversion.

ORS 813.215(1)(b) provides that "[a] defendant is eligible for diversion if the defendant * * * has not been convicted of an offense described in paragraph (a) of this subsection within" 10 years. ORS 813.215(1)(a), in turn, describes the disqualifying offenses:

"(A) An offense of driving while under the influence of intoxicants in violation of:

"(i) ORS 813.010; or

"(ii) The statutory counterpart to ORS 813.010 in another jurisdiction;

"(B) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving of a vehicle due to the use of intoxicating liquor * * *; or

"(C) A driving offense in another jurisdiction that involved operating a vehicle while having a blood alcohol content above that jurisdiction's permissible blood alcohol content."

Here, as noted, the trial court determined that defendant was ineligible for diversion because she had violated a "statutory counterpart to ORS 813.010 in another jurisdiction." ORS 813.215(1)(a)(A)(ii).

Whether a statute in another jurisdiction is a "statutory counterpart" to ORS 813.010 is a question of statutory construction. State v. Rawleigh, 222 Or App 121, 125, 192 P3d 292 (2008). Thus, we examine the text of the relevant statutes in context, along with any pertinent legislative history. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). ORS 813.010, Oregon's general DUII statute, provides, in relevant part:

"(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:

"(a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person * * *;

"(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or

"(c) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance."

New York VTL section 1192,(3) which addresses "[o]perating a motor vehicle while under the influence of alcohol or drugs," provides, in relevant part:

"1. Driving while ability impaired. No person shall operate a motor vehicle while the person's ability to operate such motor vehicle is impaired by the consumption of alcohol.

"2. Driving while intoxicated; per se. No person shall operate a motor vehicle while such person has .08 of one per centum or more by weight of alcohol in the person's blood as shown by chemical analysis of such person's blood, breath, urine, or saliva * * *.

"3. Driving while intoxicated. No person shall operate a motor vehicle while in an intoxicated condition.

"4. Driving while ability impaired by drugs. No person shall operate a motor vehicle while the person's ability to operate such a motor vehicle is impaired by the use of a drug * * *."(4)

It is readily apparent that VTL section 1192 is New York's general DUII statute. Like ORS 813.010, it prohibits driving a motor vehicle while under the influence of intoxicating liquor (or drugs). Also like ORS 813.010, it provides alternative methods of proving that a person has committed DUII: either by a chemical analysis of the defendant's blood alcohol content (BAC) or "by showing that the defendant's driving or operating abilities were, regardless of [BAC], impaired by an intoxicant." State v. Mersman, 216 Or App 194, 199, 172 P3d 654 (2007), rev den, 344 Or 390 (2008).

However, as defendant asserts, VTL section 1192 and ORS 813.010 differ in certain respects. VTL section 1192 makes a distinction between "driving while intoxicated" and "driving while ability impaired," and defines the latter offense--of which defendant was convicted--as a criminal infraction rather than a crime. See VTL