dissenting.
The majority makes too much of the amendment to ORS 809.640 after our decision in State v. Jackson, 34 Or App 587, 579 P2d 299 (1978), in which we held that the defendant could not collaterally attack the validity of his alleged underlying convictions in the habitual traffic offender hearing. That decision would be controlling here, even without the amendment defining the scope of the hearing, but for Pooler v. MVD, 306 Or 47, 755 P2d 701 (1988).
The issue in Pooler was whether MVD, in an administrative (not criminal) proceeding to suspend Pooler’s driver’s license for failing a breath test, was required to determine whether his arrest was valid when he contended that it was not. The court held that it was, because the implied consent law required the driver to take a breath test only if he was under arrest for DUII, although the scope of the hearing was limited to determining whether the requirements for a valid suspension under former ORS 487.805 (now ORS 813.100) had been met. There was no dispute but that Pooler *201had been arrested, but he contended that the arrest was without probable cause and was, therefore, invalid. The court held that, in order to trigger Pooler’s obligation to submit to a breath test, his arrest must have been valid and, therefore, the scope of the administrative hearing had to include the question of the validity of the arrest.
Similarly, under the Habitual Traffic Offenders Act, ORS 809.600 etseq, aperson’s driver’s license maybe revoked “if the person, within a five-year period, has been convicted of three or more” named offenses, including DUII and DWS. As in Pooler, certain conditions must exist before revocation or suspension is permissible. In Pooler, the person must have been under arrest; here, the person must have been convicted. Pooler held that simply being under arrest was insufficient; the arrest had to be valid. Here, a record of a conviction is insufficient; the conviction must be valid.
The Supreme Court held in State v. Grenvik, 291 Or 99, 628 P2d 1195 (1981), that a conviction obtained without the benefit of counsel or a valid waiver of the right to counsel is void and that a valid waiver will not be presumed from a silent record. Because the record there was silent, the conviction was not admissible against the defendant to support the enhanced criminal charge. After Grenvik, we decided Matteson v. Board of Parole (Matteson I), 52 Or App 737, 629 P2d 1317, rev den 291 Or 662 (1981), in which the petitioner claimed that the Board had erred in setting his parole release date, because it had improperly considered certain of his convictions in establishing his criminal history/risk score. The record was silent as to whether the petitioner had had counsel or whether he had waived his right to counsel. We remanded the case to the Board to consider the impact of Grenvik on its procedures.
On remand, the Board adopted instructions relating to the form used to determine an inmate’s criminal history/ risk score. In substance, the instructions were not to count convictions in which the inmate was deprived of counsel; however, it put the burden on the inmate to establish that fact. If an inmate challenged a conviction, he was to be advised to petition for “a reversal” in the court in which he was tried and to supply the Board with evidence of the “reversal.” Matteson failed to provide evidence that the *202challenged convictions were invalid, and the Board sustained its earlier determination.
On Matteson’s second petition for judicial review, 63 Or App 418, 421, 664 P2d 434 (1983) (Matteson II), we affirmed the Board’s response to Grenvik:
“We believe the instructions represent a realistic method of dealing with the Grenvik question, given that the Board is not a court of law and that, although it is an agency (ORS 183.310(1)), it is not subject to the provisions of the Administrative Procedures Act governing contested case hearings. ORS 183.315. The Board has recognized that it is not a judicial body, that its members are not judges and that it does not have the authority to adjudicate the constitutional validity of an inmate’s prior convictions. In the light of those inherent limitations, the Board decided to accord prima facie validity to a prior conviction rather than to assume invalidity from a silent record. There are judicial procedures by which an inmate may challenge the validity of prior convictions on constitutional grounds (e.g., ORS 138.510 et seq), but petitioner has not availed himself of any of them.”
After Matteson II, the legislature revised the Habitual Traffic Offenders Act. Or Laws 1985, ch 16, § 187. The revision included the addition of what is now ORS 809.640(6), which provides:
‘ ‘If the person requesting the hearing denies having been convicted of or having forfeited bail for any offense necessary for the finding that the person is a habitual offender, and if the division cannot make a determination of the issue on the evidence available, the division shall certify the issue to the court in which the conviction or bail forfeiture was made. The court to which the certification is made shall forthwith conduct a hearing to determine the issue and shall send a certified copy of its final order determining the issue to the division.”
It seems clear that that section provides a procedure by which a challenged conviction is to be resolved judicially. DMV does not contend otherwise; its argument is that petitioner did not request the hearings officer to utilize that procedure. The answer is that the statute requires DMV to certify the issue to the appropriate court, if it cannot make a determination of the issue on the evidence available.
*203Aside from what appears to be the statutory mandate, we have held that a person charged with driving while suspended by an order under the Habitual Traffic Offenders Act may attack the convictions that resulted in the habitual offender suspension order. State v. Hardt, 81 Or App 607, 726 P2d 953 (1986), rev den 303 Or 74 (1987). It would be anomalous to deny petitioner the right to challenge a conviction in this proceeding and require that he do so only in a later prosecution for violating the order suspending his license. Furthermore, the state has taken the position that a defendant in a criminal proceeding must raise the validity of his conviction in the habitual traffic offender proceeding or waive it. See State v. Fritz, 85 Or App 1, 735 P2d 1228, rev den 303 Or 700 (1987); State v. Hardt, supra. The state cannot have it both ways.
Although the hearings officer believed that petitioner could not raise the question in this noncriminal proceeding, he went on to decide the question. However, he put the burden on petitioner to fill in the silent record and held that he had failed to carry his burden. That was the approach taken by the Board of Parole in Matteson II, which was approved by us. Here, however, the legislature has provided a procedure for resolving the question judicially, and it was not followed.
Accordingly, I would reverse and remand for further proceedings.