specially concurring.
I concur with the majority on the procedural issue that the state may appeal allowance of a demurrer. I, however, disagree with the holding of the majority on the merits of the demurrer.
The lead opinion begins the analysis of ORS 484.365 by stating that that section "neither expressly include[s] nor exclude[s] the use of a prior foreign conviction” (34 Or App at 192.) From this observation, *197with which I concur, the analysis properly proceeds to determine legislative intent from extrinsic indicators. Any such analysis must start with an appreciation of the legislative purpose which prompted the enactment.
Among the primary purposes of the Motor Vehicles Code is the promotion of traffic safety, the removal of bad drivers from the highway and the prevention of unsafe driving conduct by the deterrent influence of penalties.
The lead opinion recognizes that Oregon has effectively abrogated the common law rule that penal statutes are to be strictly construed, citing ORS 161.025.1 concur with the suggestion that that statute sets forth an acceptable principle of statutory construction. Although, by its terms, it does not specifically apply to penal provisions in the motor vehicle code, it should nevertheless be applied by Oregon courts in determining the proper application of any penal statute. It would be strange to apply a rule of strict construction to a penal statute codified in the motor vehicle code and eschew the rule when interpreting criminal code provisions.
The lead opinion quotes only a portion of that statute to the effect that penal provisions should be construed according to the "fair import of [their] terms.” The latter portion of that section, ORS 161.025(2), ought also to be applied so that statutes are construed "to promote justice and to effect the purposes stated.” The narrow, restrictive construction of ORS 484.365, postulated by the lead opinion, frustrates rather than effectuates the purposes of the vehicle code.
ORS 484.365 seeks to effectuate the general purposes of the vehicle code by subjecting multiple offenders to harsher punishments. Given the ready movement of persons driving vehicles throughout the several states it is difficult to assume the legislature intended, as a general proposition, to exclude foreign *198convictions in determining multiple offender status. Unless such an intent is clearly expressed in the Act the courts ought not frustrate legislative purposes by restrictive interpretations.
The lead opinion determines this restrictive interpretation by two essential routes. The first results from a reading of ORS 484.365(2):
"In applying subsection (1) of this section, any conviction of a Class A infraction or a traffic crime as described in subsections (3) and (4) of this section, or a conviction before July 1, 1976 [the effective date of this section] of any of the statutory counterparts of these offenses which occurred within the immediate five-year period before the commission of the present offense, shall be included whether the previous conviction occurred before or after July 1, 1976.” (Emphasis added.)
The lead opinion concludes "statutory counterparts” relate only to offenses cognizable under the previous Oregon Vehicle Code: "The phrase 'statutory counterparts’ expressly refers to convictions occurring before June 27, 1975, the effective date of the new vehicle code.” (34 Or App at 192.) However, as the emphasized portion of the statute provides, the statutory counterpart conviction is to be included in the enhancement scheme whether the convictions occur before or after the effective date of that provision. In essence a conviction for a statutory counterpart of a Class A traffic infraction or crime is included whenever it occurs. This supports an interpretation that such counterpart relates to a statutory definition of comparable offenses in any jurisdiction. To follow the reasoning of the lead opinion would make the last sentence of subsection (2) redundant and meaningless.
The lead opinion notes that ORS 484.700 to 484.750 expressly provides for the use of foreign convictions in determining habitual offender status. From this fact the lead opinion concludes that had the legislature intended foreign convictions to be used in the enhancement provisions of ORS 484.365 it would have used language similar to that found in ORS 484.700 to *199484.750. It is more logical to assume that had the legislature made a conscious choice not to allow use of foreign convictions in elevating a Class A infraction to a crime it would have used specific limiting language. The use of the term "statutory counterpart” does not limit the prior convictions to violations of Oregon law. "Statutory counterpart” is not a term of art in the Oregon statutes and should be interpreted in light of the evident statutory purposes.
The second line of reasoning postulated by the lead opinion assumes legislative solicitude for the judiciary. It is argued that the "most compelling reason to believe that the legislature did not intend to include foreign convictions” is that the legislature did not want to saddle the courts with the "unmanageable system” of determining if a foreign conviction was in fact a statutory counterpart of the specified Oregon offenses. The difficulty would result, it is reasoned, because each of the fifty states have adopted their own substantive and procedural standards for traffic convictions.
I first note that procedural standards have little to do with determining if conduct proscribed by foreign statutes are a statutory counterpart of an Oregon offense. I assume by procedural standards the lead opinion means such as trial by court or by jury, the size of the jury, the required burden of proof and the available affirmative defenses. These relate to the route by which a conviction is obtained and not to what the statute prohibits. It could be inferred from this statement in the lead opinion that the court would henceforth hold that conviction of a statutory counterpart referred to in ORS 482.460(1), 482.820 and 484.705(2) would have to compare favorably with the Oregon statutory description of the offense and be obtained by Oregon type procedure. This would introduce a potentially "unmanageable system.”
The supposed solicitude for the judiciary is not evident in other portions of the traffic code.
*200ORS 482.460(1) provides:
"The division may suspend or revoke the license of any resident of this state upon receiving notice of the conviction of such person in another state of an offense therein which, if committed in this state, would be grounds for the suspension or revocation of the license of an operator or chauffeur.”
The Motor Vehicles Division is initially given the "manageable” task of determining if a foreign conviction is comparable to an Oregon provision requiring suspension of the driver’s license. The court would ultimately have to participate in this "manageable system” in the event of an appeal from the order of suspension.
Reading ORS 482.460(2) with ORS 484.430 the defendant in this case would be subject to a mandatory one year suspension based on his prior foreign conviction even though the lead opinion holds he cannot be sentenced for a crime based on that same conviction. Rather an anomalous result of a comprehensive statutory scheme for traffic safety.
ORS 482.810 through 482.840 set forth Oregon’s adoption of the Driver’s License Compact. In essence the compact provides that the party states shall exchange information regarding convictions within their several jurisdictions. It.also provides that the state which issues an operator’s license shall give the same effect, respecting suspension of that license, to a foreign conviction, for certain offenses, as it would if the conduct of the driver had occurred in the licensing state. The Motor Vehicles Division is given the task of administering the compact in Oregon. The legislature thus projected the Division into an apparently manageable system not markedly different from a system of applying foreign convictions to elevate a Class A infraction to a crime. It is difficult to imagine the legislature felt the Motor Vehicles Division is capable of managing such a system while the court is not. It is sufficient to cite that body of jurisprudence known as *201conflicts of laws to illustrate courts are constantly engaged in and well equipped to interpret foreign law and apply it to Oregon controversies.
The Oregon Habitual Traffic Offenders Act, ORS 484.700 et seq, allows the status of Habitual Offender to be imposed based on foreign convictions which substantially conform to the Oregon offense. Here again the Oregon courts are called upon to construe foreign law and determine if the foreign conviction is a statutory counterpart of an Oregon offense.
The anomaly again exists in applying the Habitual Offender Act to this defendant. If the defendant is ultimately convicted of a Class A traffic infraction, he is not subject to the greater criminal penalties despite a previous conviction. If, however, he has or incurs another conviction, even in another state, he will be subject to being declared a habitual traffic offender by utilizing his foreign conviction.
Admittedly, these statutory provisions outlined above relate to suspension of licenses based on multiple convictions and are not, strictly speaking, penalty statutes. However, they impose harsher consequences for traffic offense convictions based upon previous driving conduct of the person convicted. This illustrates a broad legislative policy to impose more onerous consequences upon multiple offenders wherever the offense was committed.
These provisions also illustrate that extricating the judiciary from the "unmanageable system,” seen by the lead opinion, has simply not been a matter of legislative concern. This essentially removes the "most compelling reason” seen by the lead opinion to construe ORS 484.365 in a restrictive fashion.
In meeting the arguments of the state based on State v. Jones, 4 Or App 447, 479 P2d 1020 (1971), the lead opinion distinguishes that case (34 Or App at 194). The distinction is based on the premise that the term "felony” is one of general application while the *202terms "traffic infraction” and "traffic crime” have no such general application and are not defined in foreign statutes. That distinction, if such it is, is not material to resolution of the problem at issue. The substantive offense described in the statute may be the same as comparable offense described in a foreign statute whether it is called a "traffic infraction,” "traffic crime” or "traffic widget.” The use of the term "traffic infraction” does not mean the offense so named is peculiar to Oregon. Traffic infraction merely describes a category of punishment. In comparing foreign with local offenses we must look beyond the name and analyze the substantive description of the offense.
It appears, absent this supposed distinction, State v. Jones, supra, has more vitality than the lead opinion ascribes to it. In Jones we determined a felony conviction in another jurisdiction could serve as a basis for a conviction under former ORS 166.270 which prohibits a convicted felon from possessing a concealable firearm. We noted the statute, by its terms, did not include or exclude a foreign felony conviction and determined, based on the evident purpose of the Act, that a foreign conviction could be used. The same reasoning should apply in construing ORS 484.365.
I conclude the legislature intended, by use of the term "statutory counterpart,” to include foreign convictions. I concur that the case should be reversed but it should be reversed with instructions to overrule the demurrer and allow the matter to proceed to trial as a traffic crime.
Thornton, Joseph and Roberts, JJ. concur in this specially concurring opinion.