dissenting.
This case did not come to us in the normal course. The state asked us to use our mandamus power under Article VII (Amended), section 2, of the Oregon Constitution1 to *129order the trial court to reverse its order requiring defendant to undergo diversion. The trial court’s decision was correct, and it was just. We should not have invoked our discretionary power to countermand it.
The trial court had before it a man who drove an ordinary passenger vehicle under the influence of intoxicants. That incident was defendant’s first violation and the court ordered diversion because it found that requiring defendant to undergo evaluation and treatment for substance abuse was in the best interest of the community. The state resisted that order, arguing that an Oregon statute prohibits diversion. The purpose of that statute, according to the majority, is to impose stricter sanctions on those who are “authorized to drive commercial motor vehicles.” 343 Or at 128.
The trial court considered that statute but did not deem it to bar diversion. The trial court found that defendant did not drive a commercial motor vehicle. He did not own or have access to a commercial vehicle. He did not have a job that required or permitted him to operate a commercial vehicle. He did not intend to acquire a commercial driver [’s] license (CDL) and, therefore, did not undergo the examination or submit to the DMV the report of the medical examination necessary to obtain a CDL. He did not obtain or possess the medical certificate necessary to drive a commercial vehicle. At the same time, the DMV did not demand the required medical examination and report and did not carry out its responsibility to evaluate defendant’s medical qualifications. Without the requisite medical examination, report, and certificate, the law only authorized defendant to drive an ordinary passenger vehicle; the vehicle he was driving at the time of the violation. Thus, reasoned the trial court, defendant would be treated the same as others who drive ordinary passenger vehicles. He would be required to complete diversion.
We have interceded and ordered the judge to impose a harsher sanction; a sanction the trial court did not choose when it determined the sanction that was in the best interest of the community. Why? And to what end?
*130I do not doubt that the majority sincerely believes that the wording of the applicable statutes did not leave it room to affirm what the trial court believed was right. I respect that view and yet I believe I must speak for two reasons.
First, Oregon law did not require us to take this case. The decision to invoke the constitutional power of mandamus is a decision within our own discretion. Or Const, Art VII (Amended), § 2. No injustice called us to use this extraordinary power; no wrong urged that we reach for this extraordinary remedy. See Oregonians for Health and Water v. Kitzhaber, 329 Or 339, 344-45, 986 P2d 1167 (1999) (stating mandamus in this court is an extraordinary remedy).2
Second, I am of the firm opinion that Oregon law does not compel the result the majority reaches. The law did not prohibit diversion because the document defendant possessed (1) was not a “commercial driver license” as that term is statutorily defined; and (2) was invalidly issued, granted no substantive right and could not, therefore, serve as a bar to diversion.3
I begin with the definition of “commercial driver [’s] license.” ORS 813.215(7) makes a defendant eligible for diversion if the defendant did not have a “commercial driver license” at the time of the DUII offense. ORS 801.207 defines a “commercial driver license” as a “driver license * * * that authorizes its holder to drive a commercial motor vehicle [.]” (Emphasis added.)
The document the DMV issued to defendant did not “authorize” him to drive a commercial motor vehicle. To “authorize” means “to give legal authority; to empower * * *,” *131Black’s Law Dictionary 143 (8th ed 2004), or “to endow with * * * effective legal power, warrant, or right,” Webster’s Third New Int’l Dictionary 146 (unabridged ed 2002). The document the DMV issued to defendant did not grant him “effective legal power, warrant, or right” to drive a commercial vehicle. The DMV did not fulfill its statutory responsibilities and, as a result, issued defendant a document that granted defendant effective power to drive only an ordinary passenger vehicle.
A commercial vehicle is enormous in weight, can carry numerous passengers, and may be used in mass transit or transportation of hazardous materials. ORS 807.031(3)(a) - (c). To qualify to drive a commercial vehicle, an applicant must undergo a medical examination within two years of the date of application and must meet additional federal requirements. ORS 807.040(1)(g) (requiring that applicant meet medical requirements prescribed by rule); OAR 735-074-0260(1) (adopting federal medical examination and certification requirements for CDL applicants); 49 CFR § 391.45(b)(1) (requiring medical examination and certification every 24 months). The medical examiner must be aware of the rigorous physical, mental, and emotional demands placed on the applicant, take the applicant’s medical history and conduct a physical examination, and certify that the applicant does not have any physical, mental, or organic condition that might affect the applicant’s ability to operate a commercial motor vehicle safely. 49 CFR § 391.43(f). An applicant is medically qualified to drive a commercial vehicle if, among other things, the applicant “has no current clinical diagnosis of alcoholism.” 49 CFR § 391.43(b)(13).
For its part, the DMV must evaluate the applicant and determine that the applicant is qualified to drive a commercial vehicle. ORS 807.040(l)(g). The applicant for a CDL (including renewal of a CDL) must submit to the DMV a “report of a medical examination that establishes, to the satisfaction of the department, that [the applicant] meets the medical requirements” for that class of license. ORS 807.040(l)(g); ORS 807.150(2). To assure itself that the applicant is physically and mentally capable of driving a commercial vehicle, the DMV must examine that report.
*132If the DMV determines that the applicant for a CDL is not qualified to drive a commercial vehicle, the DMV may issue the applicant a license to drive an ordinary passenger vehicle. ORS 807.150(4).4 Concomitantly, a person who does not undergo a medical examination and obtain a medical certificate may drive only an ordinary passenger vehicle. ORS 807.100 provides that, to operate a commercial motor vehicle, a person must have a medical certificate issued within two years of the date of operation.5 Without that certificate, a person only has authority to drive a passenger vehicle. ORS 807.100.
The majority initially argues that, although DMV did not demand or evaluate defendant’s medical certificate or medical qualifications, it validly issued defendant a CDL under the terms of an administrative rule requiring CDL applicants to self-certify compliance with all federal regulations. The majority goes on, however, to recognize “that there may be some question whether an applicant’s certification * * * constitutes a ‘report of a medical examination’ within the meaning of ORS 807.040(l)(g).” 343 Or at 125. Neither the wording of the statute nor public safety leave any room for question. The statute requires a medical report, not self-certification. And the DMV did not even obtain self-certification.
The statute at issue, ORS 807.040(l)(g), provides, in part:
*133“[T]he [applicant] must submit to the department, in a form approved by the department, the report of a medical examination that establishes, to the satisfaction of the department, that the person meets the medical requirements for the particular class of license.”
The medical report must be in a form approved by the DMV. The DMV, by rule, requires the use of forms prescribed by federal regulation. OAR. 735-074-0260(1) (adopting federal regulations by reference); 40 CFR § 391.43(f), (h) (setting forth forms); OAR 735-074-0280(4) (stating medical certificate must comply with federal regulations). The required forms are (1) a detailed medical examination report form completed by the medical examiner, 40 CFR § 391.43(f); and (2) a medical certificate, signed by the medical examiner, certifying that the applicant is medically qualified to drive a commercial vehicle, 40 CFR § 391.43(h). ORS 807.040(l)(g) requires that the report, not the applicant, establish that the applicant meets the medical requirements for a CDL.
The administrative rule that the majority contends may permit self-certification, provides that an applicant for a renewal CDL “must certify on the renewal application that he or she meets all of the driver qualification requirements” set forth in federal regulations. OAR 735-074-0290(3) (emphasis added). Although the majority describes that rule as requiring that the applicant certify “that he or she * * * has a medical certificate,” 343 Or at 120, that rule does not explicitly reference medical requirements. That rule does not purport to define the statutory term “report of medical examination” or to dispense with the statutory requirement that all applicants submit, as proof of compliance with one particularly important qualification requirement, a report of a medical examination. That rule is not inconsistent with the statutory requirement and simply requires, in addition, that applicants self-certify compliance with all federal qualification requirements.6
*134Furthermore, the DMV did not even comply with its self-certification rule when it provided defendant with an application form for signature. That form requires a statement that ¿/the applicant is renewing a CDL used in interstate operations, the applicant certifies that he or she meets federal requirements. Defendant did not intend to renew any CDL, much less one used in interstate operations. By signing the form DMV gave him, he certainly did not self-certify that he “possessed a medical certificate.” The legislature did not leave the important matter of medical qualification to drive commercial vehicles to CDL license applicants. It required that the DMV evaluate a medical report from a medical professional before granting a CDL, and it made that requirement applicable to all CDL applicants. No administrative rule can contravene those statutory requirements. See Planned Parenthood Assn. v. Dept. of Human Res., 297 Or 562, 565, 687 P2d 785 (1984) (holding agency exceeds authority when it adopts a rule that contravenes an applicable statute).
The majority should have pointedly instructed the DMV that it erred in granting defendant a document labeled CDL without proof of his medical qualifications.7
Had the majority done so, the technical point on which its opinion stands would be apparent. The majority concludes that, even if the document defendant had in his possession was invalidly issued, it was in his possession, and therefore, diversion was prohibited. The law does not require that we view her with such narrow blinders. There are at least two principled reasons to think more purposefully.
First, the document the DMV issued did not “authorize” defendant to drive a commercial vehicle and was not, *135therefore, a CDL, as the statute defines that term. Because defendant did not intend to acquire a CDL, he did not undergo a medical examination, submit to DMV a report of a medical examination, or carry a medical certificate on his person.8 The DMV did not determine that defendant was qualified to drive a commercial vehicle and the agency had authority to issue him only a license to drive an ordinary passenger vehicle. ORS 807.150(4). No matter what label the document the DMV issued carried, defendant was entitled to drive only an ordinary passenger vehicle. ORS 807.100. Therefore, the document the DMV issued to defendant did not meet the definition of a CDL. It did not “authorize” him to drive a commercial vehicle because it did not grant effective legal power to do so.
The majority takes on the definitional issue by attempting to cut a fine line, opining that the document in defendant’s possession “authorized” him to drive a commercial vehicle, while the absence of a medical certificate disabled him from exercising that authority.9 But the power to act, given with one hand and taken away with the other, is not a power with legal heft. A power that cannot be exercised is not “effective” legal power.
Second, putting aside the definitional issue, we should not give substantive legal effect to an invalidly issued document. Even if I granted that the legislature intended to make the theoretical distinction between the legal grant of power and the ability to exercise it when defining CDL, I cannot conclude that, in this instance, the DMV validly granted defendant even the bare legal power to drive a commercial *136vehicle. The DMV did not fulfill its statutory responsibilities and wrongly issued defendant a document labeled CDL. The minute the DMV wrongly issued defendant the document labeled CDL, it was subject to cancellation and surrender. ORS 809.310(1), (4).10 Defendant had in his possession a document no different than an expired CDL. Both are labeled CDL. Neither grants an enforceable right to drive a commercial vehicle. Neither is of any real force and, as a result, neither should be given a real, substantive effect.
In prior cases, the court has refused to give force and effect to documents labeled “license” or “permit” when they were invalidly issued. In Li v. State of Oregon, 338 Or 376, 110 P3d 91 (2005), the court ruled that marriage licenses that Multnomah County had issued to same-sex couples had been issued without authority and thus “were void at the time that they were issued.” Id. at 397. In Bankus v. City of Brookings, 252 Or 257, 449 P2d 646 (1969), the court considered a city ordinance that prohibited excavation without a permit. Plaintiff paid the deposit the city asked him to pay, obtained a permit, and began work. Id. at 258-59. The city ordered the excavation halted because plaintiff had not paid the deposit required by ordinance. Id. at 259. Plaintiff sought to enjoin the city “from reneging on the permit issued.” Id. The court ruled that the permit was issued without following the provisions of the ordinance and permitted the city to rescind the permit. Id. at 259-60. The invalidly issued permit did not grant plaintiff authority to continue with the project.
In sum, the issuance of an invalid document does not authorize action, or endow the recipient with effective legal *137power.11 Neither should it expose the recipient to a substantive negative consequence.
Most importantly to me, the life the majority breathes into the otherwise impotent document in the possession of defendant stands it muscularly between defendant and diversion. The legislature designed the diversion program with two important purposes in mind: the first, to determine the extent to which defendant’s conduct was the result of an alcohol problem; the second, to treat that problem. ORS 813.210(4)(b), (c). A trial court can only order diversion if a driver has no DUII conviction within ten years of the commission of the present offense, ORS 813.215(2), and even then can only do so if the judge determines that diversion will benefit the community as well as the defendant, ORS 813.220(1) - (3). When a court denies diversion, an alcohol problem may go undetected and untreated, and the wrongful conduct may be repeated, not only to the detriment of the defendant, but also to the detriment of the community.
In providing that trial courts cannot order diversion for those who hold CDLs, the legislature has decided to treat such persons differently than others who violate the law. The majority states the reason that that distinction is constitutionally permissible:
“The legislature reasonably could conclude that persons who are authorized to drive commercial motor vehicles may either drive larger, heavier vehicles or drive more miles than other drivers. Preventing persons who are authorized either to drive larger vehicles or to drive more frequently from participating in diversion and subjecting them to harsher sanctions the first time that they drive under the influence gives them an incentive to avoid that behavior and thus increases highway safety.”
343 Or at 128. The majority does not state that the legislature reasonably could conclude that highway safety would be *138increased by subjecting persons who possess documents labeled CDLs, but who are not qualified or authorized to drive commercial vehicles, to harsher sanctions.12
The legislature has authorized the DMV to grant applicants who do not prove they are qualified to drive commercial vehicles only the driving privileges granted to drivers of ordinary passenger vehicles. The legislature has made the drivers of ordinary passenger vehicles eligible for diversion. Those whose driving privileges are similarly limited should be similarly eligible. I urge the fairness of a two-sided coin. The beneficial side of the coin is real authority to actually drive a commercial vehicle; the limiting side is the inability to participate in diversion. Grant of a substantive right on one side; consequence on the other. The legislature did not mandate a flip that can only come up tails: granting naught and penalizing regardless.
I respectfully dissent.
Article VII (Amended), section 2, of the Oregon Constitution provides, in part: “[T]he supreme court may, in its own discretion, take original jurisdiction in mandamus * * * proceedings.”
In ordering diversion in this case, the trial judge took into consideration the fact that she had ordered diversion in a similar case, State v. Scott, Deschutes County Circuit Court case number MI 061354, and that the state did not appeal, or petition for mandamus, to overturn her order.
Not a bit, much less most, of my reasoning turns on the fact that defendant did not intend to drive a commercial vehicle. If defendant had qualified to obtain a CDL, and the DMV had issued him a valid CDL that authorized him to drive a commercial vehicle, I agree that it would not matter that defendant did not intend to use it. But application of the pertinent statutes convinces me that the DMV did not issue defendant a valid CDL and, therefore, I conclude that defendant was eligible for diversion.
ORS 807.150(4) provides:
“If a person who applies for a renewal under this section is not qualified to renew the class of license sought to be renewed, the department may issue the person any lower class of license for which the person qualifies in lieu of renewing the person’s license for the class of license held by the person.”
I use the term “ordinary passenger vehicle” to refer to those vehicles that are not commercial motor vehicles and for which a CDL is not required.
ORS 807.100 provides:
“A vehicle that may be operated only by the holder of a commercial driver license may be operated only when a medical certificate approved by the Department of Transportation is in the licensee’s immediate possession and has been issued within two years prior to the date of operation of the vehicle. The holder of a commercial driver license who does not have a medical certificate required by this section may exercise driving privileges granted by a Class C license.”
OAR 735-074-0290(3) is consistent with the federal regulations that require that all CDL applicants certify that they meet all federal requirements. 49 CFR § 383.71(a)(1), (c)(1). That self-certification is not limited to renewal applicants or to medical qualifications.
The DMVs failure to obtain proof of medical qualifications was not a one-time error. The trial court in this case took judicial notice of another case in which the DMV granted a CDL to an applicant without determining her medical qualifications. State v. Scott, Deschutes County Circuit Court case number MI 061354. In the Scott case, a witness for the DMV testified that the DMV no longer requires proof of eligibility for CDL renewal, and that the DMV employees are instructed not to request proof of a valid medical certificate and are not required to ask if the applicant is eligible for a CDL. We have also been presented with another petition for mandamus raising similar issues. See State v. Barnes, (SC S55001) (filed June 27, 2007).
Defendant did not fail to do what he was required to do. He did not undergo a medical examination, or obtain or submit a medical examination report because he did not intend to acquire a CDL. The application form defendant signed indicated only that “¿/renewing a commercial driver’s license used in interstate operations,” the applicant certified that he met federal requirements. (Emphasis added.)
In a footnote, the majority argues that it must be a “license” that authorizes its holder to drive. 343 Or at 123 n 2. But, is a license necessarily a document labeled license? And if a person cannot drive unless he or she has a medical certificate, is it not the medical certificate that constitutes the license? Or do not those two documents together constitute the license, as defined, in that they are both necessary to authorize their holder to drive a commercial motor vehicle? To me, a document that is labeled license, but that does not actually permit its holder to drive, does not confer the authority required to meet the definition of a CDL.
ORS 809.310(1) and (4) provide:
“The Department of Transportation may cancel any driving privileges upon determining that the person is not entitled to the driving privileges under the vehicle code. The department may reissue driving privileges canceled under this subsection when the applicant has satisfied all requirements for the driving privileges sought.
“Upon suspension or cancellation of driving privileges under this section, a person whose privileges are suspended or canceled shall surrender to the department any license or driver permit issued for the driving privileges. Failure to comply with this subsection is subject to penalty as provided under ORS 809.500.”
The majority seems to argue that until the DMV goes through some administrative cancellation process, a person in possession of an invalidly issued CDL is authorized to drive a commercial vehicle. See 343 Or at 126 n 6. In fact, unless it determines that an applicant has the necessary medical qualifications, the DMV does not authorize an applicant to drive a commercial vehicle in the first instance. ORS 807.040(l)(g); ORS 807.150(2), (4). Such a person may drive only an ordinary passenger vehicle. ORS 807.100.
I recognize that there may be circumstances in which, for ease of administration, the legislature could seek to impose a consequence on a person who has a particular document in his or her possession regardless of whether that document was validly issued. The legislature has not, by the words of the statute, chosen to do so here, and the procedure for granting diversion requires a hearing by a judge in any event. ORS 813.210; ORS 813.220. A judge is required to exercise discretion in granting or withholding diversion and can adduce the necessary facts in that proceeding. ORS 813.220(1) - (9).