State v. Norton

WARREN, J. In this proceeding under the Habitual Traffic Offenders Act, ORS 484.700 to 484.750, defendant appeals from the trial court’s ruling that he is a habitual offender. Under ORS 484.705, a habitual offender is a person who, within a five-year period, accumulates three convictions for any of certain listed traffic offenses, including driving while suspended. ORS 484.720 provides: “(1) The administrator of the division shall certify in triplicate an abstract of the operating record as maintained by the division, of a habitual offender to the district attorney of the county in which the person resides, * * *. “(2) The district attorney upon receiving the abstract shall forthwith file a complaint against the person named therein in the circuit court for the county in which such person resides, charging him with being a habitual offender. ***” Defendant was convicted of driving while suspended on October ,18, 1974, May 15, 1975, and July 5, 1978. It was not until July 7, 1980, that a complaint was filed requesting that defendant be ordered to show cause why he should not be barred as a habitual offender from operating a motor vehicle in Oregon and why his driver’s license should not be surrendered to the court. The record before us shows that, despite the fact that the third conviction occurred on July 5, 1978, the abstract was not received by the district attorney until June 25, 1980. There is no explanation for the Motor Vehicle Division’s delay in forwarding the abstract. Defendant moved to dismiss the complaint on the ground that the action was barred by the statute of limitations. He assigns as error the denial of that motion. He argues that two-year limitation in ORS 12.110(2) should apply to actions brought under the Habitual Traffic Offenders Act. He contends that the loss of driving privileges should be considered a penalty or forfeiture and, because an action under the act accrues upon a person’s third conviction within a five-year period, it should be required to be brought within two years of that conviction. The action against defendant was not brought within two years [682] of his third conviction; therefore, he argues, it should be barred. The state argues that the loss of driving privileges under the Habitual Traffic Offenders Act is intended to protect the public and lies well beyond the traditional fine, penalty and forfeiture actions contemplated by ORS 12.110(2) and, therefore, should not apply to these actions. Instead, according to the state, under ORS 12.250 there is no statute of limitations applicable to actions under ORS 484.720. ORS 12.250 provides: “Unless otherwise made applicable thereto, the limitations prescribed in this chapter shall not apply to actions brought in the name of the state, or any county, or other public corporation therein, or for its benefit.” To accept the state’s argument would be to concede that defendant, whose last conviction was on July 5, 1978, could be found to be a habitual offender in the year 2000 or beyond. This position is untenable, particularly in light of the indication in both ORS 484.7151 and 484.720 that prompt action in the enforcement of the Habitual Traffic Offenders Act is contemplated. In State v. Rhoades, 54 Or App 254, 634 P2d 806, rev den 292 Or 232 (1981), we stated that the sanction imposed by the Habitual Traffic Offenders Act was regulatory rather than punitive. In that case, the issue on appeal was whether a defendant in a habitual offender proceeding was entitled to court-appointed counsel. See Brown v. Multnomah County Dist. Ct., 280 Or 95, 570 P2d 52 (1977). This court’s analysis was, therefore, limited to whether the sanction should be considered to be a criminal sanction, despite the civil nature of the proceeding. In this case, the issue is not whether or not the sanction is sufficiently punitive in nature to qualify as a [683] criminal sanction, but, rather, whether there are aspects of penalty or forfeiture which would bring the act under the limitations of ORS 12.110(2). This is a different question from the one addressed in Rhoades and the determination in that case does not preclude a finding that the Habitual Traffic Offenders Act does effect a forfeiture or penalty, despite its having a purpose which is, in part, regulatory. The purpose of the Habitual Traffic Offenders Act is set forth in ORS 484.710: “(1) To provide maximum safety for all persons who travel or otherwise use the public highways of this state; “(2) To deny the privilege of operating motor vehicles on the public highways to persons who by their conduct and record have demonstrated their indifference for the safety and welfare of others and their disrespect for the laws of the state, the orders of her courts and the statutorily required acts of her administrative agencies; and “(3) To discourage repetition of criminal acts by individuals against the peace and dignity of the state and her political subdivisions and to impose increased and added deprivation of the privilege to operate motor vehicles upon habitual offenders who have been convicted repeatedly of violations of traffic laws.” (Emphasis added.) We do not accept the argument that delay, no matter how extended, will never constitute a bar to an action having these goals. Substantial delay in bringing actions under the Act would subvert its declared purposes. Furthermore, it is apparent that this law does have punitive aspects and can be considered as effecting the forfeiture of an important privilege. Generally, forfeiture has been defined as divestiture without compensation of property used in a manner contrary to law. See United States v. Eight (8) Rhodesian Stone Statues, 449 F Supp 193 (CD Cal 1978). Licenses have not been considered property. However, forfeiture can be loss of position or personal right, as well as property, and the distinction between a right and privilege has been eroded to the point where it is doubtful that any meaningful distinction exists. See Sherbert v. Verner, 374 US 398, 83 S Ct 1790, 10 L Ed 2d 965 (1963); Goldberg v. Kelly, 397 US 254, 90 S Ct 1011, 25 L Ed 2d 287 (1970). Furthermore, the [684] United States Supreme Court has recognized that a licensee has a substantial personal interest in his license to operate a motor vehicle and that loss of that license can work a great hardship. Bell v. Burson, 402 US 535, 539, 91 S Ct 1586, 29 L Ed 2d 90 .(1970). Oregon has also recognized that the loss of driving privileges can be a form of regulation or a form of punishment, depending on the legislative purpose. See Brown v. Multnomah County Dist. Ct., supra, 280 Or at 105. The loss of driving privileges pursuant to a proceeding under the Habitual Traffic Offenders Act effects both a regulatory and punitive legislative purpose and forfeiture of an important personal privilege. Whether loss of driving privileges under the Habitual Traffic Offenders Act is analyzed as a penalty or a forfeiture, ORS 12.210 is the applicable statute of limitations. Reversed. Footnotes [1] ORS 484.715 provides, in pertinent part: “(1) When the division receives an abstract of the conviction or bail forfeiture, under ORS 158.625, and the conviction or bail forfeiture is the second one of those described by ORS 484.705(l)(a) for the convicted person, the division immediately shall notify the licensee and offer the licensee an opportunity of an advisory meeting with a representative of the division.