Opinion
83-1341-C; CA A31162
Submitted on record and briefs September 14, 1984
Reversed and remanded October 3, 1984
Appeal from Circuit Court, Washington County.
Donald C. Ashmanskas, Judge.
Roy E. Elicker, II, Portland, submitted the brief for appellant.
Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, submitted the brief for respondent.
Before Gillette, Presiding Judge, and Van Hoomissen and Young, Judges.
PER CURIAM
Reversed and remanded for further proceedings.
Petitioner-appellant filed a petition for post-conviction relief in which he asked the circuit court to set aside his 1979 conviction for driving while under the influence of intoxicants (DUII) on constitutional grounds. Without ruling on the merits of petitioner's claim, the trial court dismissed the petition on the ground that the Post-Conviction Hearing Act, ORS 138.510 to 138.680, does not apply to DUII convictions that were only punishable as Class A traffic infractions under former law. As the state confesses, that was error. Evers v. State of Oregon, 69 Or. App. 450, 685 P.2d 1024 (1984).
Reversed and remanded for further proceedings.