State v. Atkinson

*297CARSON, J.

This case involves the required contents of a notice of revocation of driving privileges by the Motor Vehicles Division (MVD) to a person found to be a habitual traffic offender. We are asked to determine whether the revocation notice issued under former ORS 484.718,1 which failed to state explicitly that the revocation would be stayed pending a requested hearing, is adequate to support a subsequent conviction for felony driving while suspended.2

The facts are not disputed. MVD revoked defendant’s driving privileges under former ORS 484.727,3 the habitual *298offender statute, and former ORS 482.440.4 The notice of revocation was dated October 19, 1984, and, among other things, stated that revocation would take effect for an indefinite time on November 13, 1984 (25 days later). The reverse side of the notice, among other things, informed defendant that he could request a hearing within 20 days of the notice date. Defendant received the notice but did not request a hearing.

In January 1985, during the suspension period, defendant was stopped while driving. Thereafter, he was convicted for felony driving while suspended under former ORS 487.560.5 Defendant appealed and argued to the Court of Appeals that his conviction should be reversed. He contended that the conviction was based upon the 1984 notice of revocation which was inadequate under former ORS 484.718. The Court of Appeals agreed and reversed the conviction. State v. Atkinson, 82 Or App 287, 728 P2d 564 (1986). We affirm for the reasons set forth below.

Under former ORS 484.727, MVD was required to stay revocation of a habitual offender’s driving privileges if the person requested a hearing within the time period dictated by former ORS 484.718. Former ORS 484.727(2). Former ORS *299484.718(2)(f) required that the notice provided by MVD inform the person, whose driving privileges were to be revoked, of “[t]he date that the revocation of the person’s driving privileges shall take effect unless a hearing is requested.” (Emphasis added.) The Court of Appeals determined that former ORS 484.718(2) (f) implicitly required that the licensee be explicitly informed that revocation would be stayed pending a requested hearing and that such explicit notice was absent from the October 19, 1984, notice given defendant. 82 Or App at 290. The court went on to conclude, under State v. Tooley, 297 Or 602, 687 P2d 1068 (1984) and State v. Adams, 78 Or App 428, 717 P2d 212 (1986), affirmed by an equally divided court 305 Or 330, 751 P2d 784 (1988), that notice was inadequate because “it failed to inform defendant fully of the consequences of his statutory right to a hearing.” Consequently, the notice could not support a license suspension and a subsequent driving while suspended conviction. 82 Or App at 291.

In Tooley, the notice given under former ORS 486.221 informed the recipient that he had 20 days from the date of the notice within which to request a hearing and that the revocation became effective within five days of the notice. We determined that this notice incorrectly communicated that revocation went into effect regardless of a request for a hearing and remained in effect unless and until the person prevailed. 297 Or at 609. The notice was inadequate to inform the person of the pending revocation and of his right to a prerevocation hearing. Id.

This case is similar to Tooley—resolution of both cases turns solely on statutes. In neither case is an issue of constitutional interpretation involved.

This case is not, however, a Tooley case. The decision in Tooley, although involving a notice from MVD, was grounded upon different operative statutes and not the statutes relating to habitual offenders. The legislatively-mandated notice requirements in this case, former ORS 484.718(2)(f), unlike the statutes in Tooley, specifically required the notice of revocation to inform defendant as to the date that his driving privileges would be revoked “unless a hearing is requested.”

Defendant was informed that revocation would take *300effect on November 13,1984, and that he had 20 days, or until November 8, 1984, within which to request a hearing. The notice also stated that if a hearing were granted, defendant would be notified of the time, place, procedures and his rights and that the hearing would be held in his county of residence. None of this fairly can be construed as conveying to defendant the statutorily-mandated information which the notice was required to state: The date that the revocation would take effect unless he acted to request a hearing. The notice thus failed to meet the requirements of former ORS 484.718 and, as such, could not support a conviction for felony driving while suspended.

The decision of the Court of Appeals is affirmed. The judgment of the trial court is reversed.

In October - November 1984, former ORS 484.718 (now see ORS 809.620) provided:

“(1) Service of notice required under ORS 484.715 or 484.727 is accomplished either:
“(a) By mailing the notice by certified mail restricted delivery, return receipt requested, to the person’s address as shown by division records; or
“(b) By personal service in the same manner as a summons is served in an action at law.
“(2) A notice required under ORS 484.727 shall inform the person of all the following:
“(a) That the person’s driving privileges are being revoked as a habitual offender.
“(b) That the person has a right to request a hearing.
“(c) The specific steps that must be taken to obtain a hearing before the division.
“(d) That the person may only obtain a hearing if the person requests, in writing, a hearing within 20 days from the date the notice was sent.
“(e) That the right to a hearing is waived if the person does not request a hearing within the time required.
“(f) The date that the revocation of the person’s driving privileges shall take effect unless a hearing is requested.”

Although defendant had his driving privileges revoked, he was charged with and convicted for driving while suspended. There is, in this case, no meaningful distinction between revocation and suspension. See former ORS 487.560(6) (now see ORS 811.175 and 811.180).

In October - November 1984, former ORS 484.727 (now see ORS 809.640) provided, in part:

“(1) When the division determines from the driving record of a person as maintained by the division that a person is a habitual offender as defined under ORS 484.705, the division shall do the following:
“(a) Revoke the driving privileges of the person.
“(b) Notify the person, as provided under ORS 484.718, of the revocation and of the person’s right to a hearing as provided under this section.
“(2) If the person makes a request for a hearing within the time required *298under ORS 484.718, the division shall stay the effective date of the revocation under this section.”

In October - November 1984, former ORS 482.440 (now see ORS 809.360) provided:

“Whenever the division or a court has reason under any laws of this state to suspend or revoke the license or permit of any person who has not been issued a current Oregon license or permit to operate motor vehicles or whose license is due to expire during a suspension period, the division or court shall suspend or revoke the right of such person to apply for a license or permit to operate motor vehicles in this state.”

In January 1985, former ORS 487.560 (now see ORS 811.175 and 811.180) provided, in part:

“(1) A person commits the crime of driving while suspended or revoked if the person drives a motor vehicle upon a highway during a period when the person’s license or permit to drive a motor vehicle or the person’s right to apply for a license to drive a motor vehicle in this state has been suspended or revoked by a court or by the division or if the person drives a motor vehicle outside the restrictions of an occupational license issued under ORS 482.475 or 484.735.
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“(6) Driving while suspended or revoked is a Class C felony if the suspension or revocation was the result of a finding that the person is an habitual traffic offender under ORS 484.727 * * *.”