Opinion
No. 37-371, CA 8041
Submitted on record and appellant's brief November 15, reversed December 12, 1977
Appeal from Circuit Court, Washington County.
Gregory E. Milnes, Judge.
James A. Redden, Attorney General, Al J. Laue, Solicitor General, and Donald L. Paillette, Assistant Attorney General, Salem, filed the brief for appellant.
No appearance for respondent.
Before Schwab, Chief Judge, and Tanzer and Roberts, Judges.
Reversed.
TANZER, J.
The state appeals an order of the circuit court dismissing an habitual traffic offender proceeding because there was no proof that defendant received notice of his right to an advisory meeting with the Motor Vehicles Division. Such notice is required by ORS 484.715 and we have held it to be a condition precedent to adjudging a driver an habitual traffic offender. State v. Wells, 27 Or. App. 537, 556 P.2d 727 (1976).
ORS 484.700 to 484.750.
ORS 484.715 provides:
"When the division receives an abstract of the conviction or bail forfeiture, under ORS 484.240, and the conviction or bail forfeiture is the second one of those described by paragraph (a) of subsection (1) of ORS 484.705 for the convicted person, the division immediately shall notify the licensee and offer him an opportunity of an advisory meeting with a representative of the division in the county wherein the licensee resides. At such a meeting, the division shall advise the licensee of the provisions of ORS 484.700 to 484.750 and of the availability of educational programs for driver improvement."
The state's evidence included a certified copy of defendant's driving record which contained the notation "Hab 07/09/75 Warn," and a certified copy of a return receipt for certified mail which showed a delivery date of July 10, 1975. The notation was not explained. The return receipt was signed by defendant. Also in evidence was a printed form signed by defendant requesting a meeting with a division representative. Defendant testified that he did not recall receiving notice.
The printed form was as follows:
"HABITUAL OFFENDER ACT
" X I want to attend an advisory meeting with a division --- representative.
" /s/ Timothy L. Smith ------------------------------------- Signature
" Washington ------------------------------------ County of Residence"
Assuming, without deciding, that this evidence was insufficient to prove notice, we nevertheless hold that the trial court erred in dismissing the proceeding. The purpose of the notification requirement of ORS 484.715 is to advise drivers who are in danger of being adjudged habitual offenders that they can meet with a representative of the division to discuss the consequences of habitual offender status and the availability of driver improvement programs. The evidence shows that defendant knew of the opportunity for such a meeting and availed himself of it. Dismissal for failure to notify defendant of the existence of an opportunity of which he was proved to have actual knowledge would exalt form over substance.
Reversed.