dissenting.
The record in this case satisfies me that on the afternoon defendant appeared in circuit court he had not the foggiest notion why he was there or what was happening to him. Under the circumstances, defendant was denied procedural due process. Floyd v. Motor Vehicles Div., 27 Or App 41, 44, 554 P2d 1024, rev den 276 Or 873 (1976).1 I *945would therefore vacate the trial court’s order and remand for further proceedings.
Defendant appeared in court without counsel. What transpired thereafter speaks for itself:
“THE COURT: State of Oregon, plaintiff, versus Gregory Lewis Dennison, 80-8-99. * * *
“Now, you know why you are here?
“THE DEFENDANT: Not really.
* * * *
“THE COURT: What violations are you relying on?
“[PROSECUTOR]: Your Honor, we are relying on a conviction on March 18, 1976, under the influence of intoxicants; conviction on February 8, 1978, two driving while suspended; conviction —
“THE COURT: Let’s see, say that again. In February of ‘78 two convictions?
“[PROSECUTOR]: Yes, there are two entries of convictions on that day.
“THE COURT: I see 1-23-78 and then 3-6-78.
“[PROSECUTOR]: Can I submit to the Court what I’m referring to as outlined in the sheet?
“THE COURT: I think that is probably different from mine.
“January 11, January 23rd — yes, this is the same. So you are relying on the conviction in ‘76 for DUIL, and the driving while suspended, two of them, in ‘78?
*946“[PROSECUTOR]: That’s correct. One driving while suspended, May of ‘78 in addition to a driving while suspended on November 29, 1978.
“You have to show at least three, Your Honor, and that would show five.
“THE COURT: What about the one there in April, April 28, conviction, of ‘78?
“[PROSECUTOR]: That is not a major traffic offense, Your Honor. It’s improper lane use, which is an infraction and not a major traffic —
“THE COURT: Doesn’t that say — I see. Well, the 4-28-78 DWS, isn’t that driving while suspended?
“[PROSECUTOR]: Yes, DWS.
“THE COURT: That is the one you are relying on, one of them?
“[PROSECUTOR]: I’m relying on four driving while suspended convictions, who [sic] of which are entered of record on February 8, 1978, and one of May 26, 1979. The last one on November 29, 1978; those in addition to the one DUIL in March of 1976.
“THE COURT: All right. What do you have to say about that, Mr. Dennison?
“THE DEFENDANT: Well, I don’t know — I don’t know what is going on yet. I don’t even know why I’m still here. I have no tickets. The last time I had a driving while suspended ticket was twenty-two months ago. I don’t understand. All of a sudden I’m here and I haven’t —
“THE COURT: The State computer records these and whenever you —
“THE DEFENDANT: I see a computer error. When I got the DUIL, that was in ‘75. That is why my license was reinstated without having proof of SR 22 in Salem, I think.”
At that stage in the proceeding the trial court appropriately determined that a continuance should be ordered to allow defendant to obtain counsel.
“THE COURT: All right. I’m going to continue this for three weeks from today at 9 o’clock in the morning. You get it ironed out or else all I can do is follow the law.
“THE DEFENDANT: I still don’t understand.
“THE COURT: You better find out; that will be a good project for you.
“THE DEFENDANT: How am I going to find out without nobody tell me?
*947“THE COURT: You will have to go to the Director of the Motor Vehicle Department and find out what this is.
“THE DEFENDANT: He said you are bringing me here and —
“THE COURT: I’m not bringing you in here. All I’m doing is sitting here and looking at this. The law says when this shows up, the State has to verify this to the district attorney. The district attorney —
“THE DEFENDANT: Why should they, it’s in ‘78.
“THE COURT: How do I know? I don’t ask them questions like this, I just look at the record.
“THE DEFENDANT: I —
“THE COURT: That’s all I’m going to tell you. I’ll give you to three weeks from today to get it straightened out. If not, you’ll forfeit your license.
“THE DEFENDANT: I’ve got my license.
“THE COURT: All right, turn it in now. Then —
“THE DEFENDANT: I don’t even understand why I’m here or anything.
“THE COURT: I told you I’m giving you three weeks to figure it out. Do you want three weeks or —
“THE DEFENDANT: I don’t understand what I have to do, to dig it out.
“THE COURT: Do you have your license with you?
“THE DEFENDANT: No, I don’t have it with me. What am I going —
“THE COURT: Why don’t you go to a lawyer. I’m just the judge, I can’t advise you. Go to a lawyer and have him straighten this out. I can’t sit here and be your lawyer. You understand that? You understand that, don’t you?”
Defendant made no response.
If defendant had comprehended the gravity of the proceedings against him2 or the procedural and substantive burdens imposed upon the state in such cases,3 he no doubt would have accepted the trial court’s offer of a continuance so that he could contact a lawyer. However, it is obvious that he did not comprehend, and so the prosecutor tried to explain to him what was going on.
*948“[PROSECUTOR]: Your Honor, if I may, just for the defendant’s sake. This is a civil hearing by which, if you agree that you have been convicted of three major traffic offenses within the last five years, would declare you to be an habitual offender under the law. And the Court is now giving you three weeks in order to see an attorney to either admit that you have been convicted of three major offenses within the last five years, either to admit that on the record, or to contest that. And he has given you three weeks to see an attorney.
“THE DEFENDANT: Oh.”
What transpired thereafter is additional evidence defendant did not understand why he was in court and what was involved in the proceeding:
“THE COURT: Is that so complicated?
“THE DEFENDANT: I don’t have to wait for an attorney, I know I have three major convictions.
“THE COURT: All right then, if you have had three major convictions that is why you are here. Can’t you read your papers? That’s what they say, that’s why you’re here. You have had three major convictions?
“THE DEFENDANT: Uh-huh. I can see that on here.
“THE COURT: Well then, what are you arguing about?
“THE DEFENDANT: I still don’t understand.”
The trial court then attempted to explain the Habitual Traffic Offenders Act, ORS 484.700 et seq., to defendant:
“THE COURT: Under the law, if you have had three major convictions, you are brought into court and your license is forfeited. And you are an habitual offender and you are suspended for a period of ten years. You realize that?
“THE DEFENDANT: Ten years?
“THE COURT: And I have no discretion. All I do is declare you are an habitual offender and you are automatically suspended for ten years. You can get probationary type driving privileges.
“THE DEFENDANT: Well, who would; decide that?
“THE COURT: The Department of Motor Vehicles.
“THE DEFENDANT: Oh, I see.
“THE COURT: You have got three criteria to meet if yop are going to get probationary driving. You have to *949furnish proof of financial responsibility, you have to go to a doctor and have the doctor testify that you are emotionally able to drive and able to follow the rules of the road. And also that you take a defensive driving course. If you can follow those three conditions, you may get probationary driving.
“THE DEFENDANT: Which means I can drive to work?
“THE COURT: To drive to work, yes.”
Defendant made it clear to the trial court that he had not received notice of the nature of the proceedings against him:
“THE COURT: * * * Now, where is your driver’s license?
“THE DEFENDANT: It’s at home, I didn’t drive here.
“THE COURT: Well, you have got to bring your license back.
“THE DEFENDANT: Well, my wife told me I could bring my license. My wife told me an officer was out to my house and had some papers for me; they wouldn’t tell her nothing. And she said that the officer said, ‘Be sure and tell him his license is suspended.’
“THE COURT: That’s true.
“THE DEFENDANT: He said, ‘Be sure you tell him to call the courthouse.’ I called the courthouse and the courthouse said, ‘We don’t know what is going on.’ I said, ‘Well,
I’ll let it go.’
“THE COURT: When you say you called the courthouse, does someone here speak for the courthouse?
“THE DEFENDANT: I don’t know, I’m just telling you what I was told. I don’t want to argue with anybody. I’m telling the truth about what I heard.
“THE COURT: So what?
“THE DEFENDANT: So I’m telling you what I did. That’s why.”
The trial court then said:
“Your license is suspended. An order may be entered declaring him an habitual offender.”
While acknowledging that defendant did not understand the reason for his appearance in court, the majority nevertheless concludes he has waived his right to raise procedural defects in the proceedings because he *950failed to object in the trial court. In view of the overwhelming evidence that defendant did not understand the nature of the proceedings, not to mention his procedural and substantive rights, it is patently absurd to hold that he made a knowing waiver of his right to object to the failure of the state to comply with the notice requirements of ORS 484.715.
The majority rationalizes:
“The missing evidence in the present case is evidence that the state followed a procedural step prior to charging the defendant. The state is required to prove that it took that procedural step, but there could exist a variety of reasons for its failure to produce that evidence, including an agreement with defendant off the record that it was unnecessary to provide such evidence.”
There is not a scintilla of evidence in this record to indicate that there had been any contact between defendant and the prosecutor prior to the hearing or that defendant was even aware of the procedural requirement of ORS 484.715. Thus, in this case, the suggestion that defendant had somehow waived that requirement is specious.
My conclusion is that defendant was denied fundamental fairness by the trial court. While the defendant may not have been entitled to a perfect trial, he was certainly entitled to a fair one. Lutwak v. United States, 344 US 604, 619, 73 S Ct 481, 97 L Ed 2d 593 (1953). He didn’t get it. I regret that the majority decision by this court perpetuates that error.
Richardson, J., joins in this dissent.In Floyd v. Motor Vehicles Div., 27 Or App 41, 44, 554 P2d 1024, rev den 276 Or 873 (1976), we said that
*945“[r]egardless of whether denominated as a right or a privilege, an operator’s license is an important entitlement which can only be suspended or revoked in a manner consistent with procedural due process.
While the trial court offered defendant an opportunity to contact counsel, I would hold that under the circumstances, he did not waive that right.
An habitual traffic offender case is a civil proceeding. State v. Wright, 34 Or App 663, 579 P2d 266 (1978). ORS 484.730 does not specifically recognize a right to jury trial in such cases. The implied consent law, ORS 487.805 et seq., does provide for a jury trial. ORS 482.560(1). Inasmuch as the penalty under the habitual offenders act is substantially more severe than that under the implied consent law, it would seem logical to conclude that a person charged with being an habitual offender might have a right to a jury trial. See Art I, § 20, Oregon Constitution, which provides:
“No law shall be passed granting to any citizen or class of citizens privileges, or immunities, which, upon the same terms, shall not equally belong to all citizens.”
ORS 484.735 provides that, with certain exceptions, a license to operate motor vehicles shall not be issued to an habitual offender for a period of ten years.
See, e.g., ORS 484.715.