Richardson v. DMV

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FILED: November 07, 2012 IN THE COURT OF APPEALS OF THE STATE OF OREGON TIMOTHY L. RICHARDSON, Plaintiff-Respondent, v. OREGON DEPARTMENT OF TRANSPORTATION, Department of Motor Vehicles, Defendant-Appellant. Clackamas County Circuit Court CV10100021 A149361 Susie L. Norby, Judge. Submitted on July 06, 2012. John R. Kroger, Attorney General, Anna M. Joyce Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the briefs for appellant. Timothy L. Richardson filed the briefs pro se. Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge. HADLOCK, J. Affirmed. 1 HADLOCK, J. 2 The Driver and Motor Vehicle Services Division (DMV) of the Oregon 3 Department of Transportation suspended plaintiff's driving privileges in 2010 after 4 receiving notice from the Central Lane Justice Court that plaintiff had failed to pay 17 5 traffic fines that he incurred in the 1990s. Plaintiff requested administrative review 6 before DMV under ORS 809.440(2), and DMV issued three orders upholding the 7 suspensions.1 Plaintiff initiated proceedings in circuit court, and that court reviewed the 8 DMV orders under ORS 183.484, which governs judicial review of orders in other than 9 contested cases. The circuit court reversed the DMV orders, ruling that the agency had 10 applied the law incorrectly, and ordered DMV to reinstate plaintiff's driving privileges. 11 DMV now appeals the circuit court's judgment. As explained below, we conclude (albeit 12 for reasons other than those on which the circuit court relied) that DMV erroneously 13 interpreted certain statutory provisions related to suspensions of driving privileges when 14 it rejected plaintiff's challenge to the suspension orders. We also conclude that, under a 15 correct understanding of the law, DMV erred when it suspended petitioner's driving 16 privileges in 2010. Accordingly, we affirm the circuit court's judgment. 17 18 We begin with a discussion of the statutes that govern suspension of driving privileges for failure to pay a traffic fine. When a person is convicted of a traffic offense 1 The orders are not explicitly titled "orders," but are letters from DMV Operations and Policy Analyst Elizabeth Woods to plaintiff denying his challenge to the 2010 DMV suspensions. DMV has acknowledged that the letters are final orders for purposes of judicial review under ORS 183.484. 1 1 and fails to pay a judicially imposed fine, ORS 809.210(1)(a) authorizes the court to 2 "[i]ssue notice to the [DMV] to implement procedures under ORS 809.416." ORS 3 809.416, in turn, directs that the person is subject to the suspension of driving privileges 4 under ORS 809.415(4) when DMV receives the ORS 809.210 notice of failure to pay the 5 fine. The statute also specifies how long the person remains subject to the suspension of 6 driving privileges: 7 8 9 10 11 12 13 14 "A person who is subject under this subsection remains subject until the person presents the department with notice issued by the court showing that the person has paid the fine or obeyed the order of the court or until 10 years have elapsed, whichever is earlier. * * * Upon receipt of notice from a court, the department shall send a letter by first class mail advising the person that the suspension will commence 60 days from the date of the letter unless the person presents the department with the notice required by this subsection." 15 ORS 809.416(2) (emphasis added). ORS 809.415(4) similarly directs that DMV "shall 16 suspend driving privileges when provided under ORS 809.416." It, too, provides that 17 suspension of a person's driving privileges under ORS 809.416(2) continues until either 18 (1) the person "establishes to the satisfaction of the department that the person has 19 performed all acts necessary under ORS 809.416 to make the person not subject to 20 suspension" or (2) "[t]en years from the date the suspension is imposed." ORS 21 809.415(4)(a)(A), (B).2 22 A person whose driving privileges are suspended under ORS 809.415(4) is 2 When plaintiff first incurred the fines in 1996 and 1997, the maximum suspension period for failure to pay a traffic fine was five years, not 10. ORS 809.290(2) (1997). The legislature subsequently renumbered the pertinent statutory provisions and, in 2007, increased the suspension period to 10 years. Or Laws 2007, ch 127, § 1 (amending ORS 809.415(4)(a)(B)); id. § 2 (amending ORS 809.416(2)). 2 1 entitled to administrative review under ORS 809.440. ORS 809.415(4)(b). That review 2 "shall consist of an informal administrative process to assure prompt and careful review 3 by the department of the documents upon which an action is based." ORS 4 809.440(2)(a).3 In that review, it "shall be a defense" to any Department of 5 Transportation action if the person against whom the action is directed can establish that: 6 7 8 "(A) A conviction on which the department's action is based was for an offense that did not involve a motor vehicle and the department's action is permitted only if the offense involves a motor vehicle. 9 10 11 "(B) An out-of-state conviction on which the department's action is based was for an offense that is not comparable to an offense under Oregon law. 12 13 "(C) The records relied on by the department identify the wrong person." 14 ORS 809.440(2)(b). The person challenging a suspension of driving privileges (or other 15 department action) has the burden of proving by a preponderance of the evidence that he 16 or she is not subject to that action. ORS 809.440(2)(c). Judicial review of an 17 administrative order affirming a suspension is available "as for review of orders other 18 than contested cases." ORS 809.440(2)(e). 19 The facts relevant to our decision are undisputed. Between June 1996 and 20 July 1997, the Central Lane Justice Court entered 17 judgments against plaintiff for 21 motor vehicle violations. Each of those judgments required plaintiff to pay a fine, each 22 of which plaintiff failed to pay. DMV notified plaintiff that his driving privileges would 3 Actions subject to ORS 809.440(2) administrative review are exempt from the provisions of ORS chapter 183 applicable to contested cases. ORS 809.440(2)(d). 3 1 be suspended if he continued to fail to pay his fines and, on various dates between 2 February 1997 and February 1998, DMV did suspend plaintiff's driving privileges. Each 3 of those suspensions corresponded to a particular unpaid fine and, as DMV 4 acknowledges, each of those suspensions lasted "5 years total," which then was the 5 maximum statutory suspension period. See ___ Or App at ___ n 2 (slip op at 2 n 2). 6 Plaintiff first applied to reinstate his driving privileges on October 10, 7 2006, and he was issued a new license that same day. Plaintiff still has not paid any of 8 his fines associated with the 1996 and 1997 judgments. 9 For reasons not clear on this record, plaintiff appeared before the justice 10 court again on March 31, 2010, for proceedings related to his continuing failure to pay 11 the fines imposed in 1996 and 1997. The justice court issued an order that day allowing 12 plaintiff seven days to either pay the fines or make arrangements with the court clerk to 13 do so. The March 31 justice court order, according to the circuit court, "did not impose 14 license suspensions, but predicted that license suspensions [might] be ordered later if 15 [plaintiff] failed to act." Plaintiff filed a motion for reconsideration, which the justice 16 court denied. In the end, plaintiff did not satisfy the judgments and apparently did not 17 attempt to appeal the justice court's March 31, 2010, order or that court's denial of his 18 motion for reconsideration.4 4 Unfortunately, the record before us does not include any of the above-referenced documents from the 2010 justice court proceeding. The exhibit list from the circuit court judicial-review proceeding reveals that the circuit court received, as DMV's exhibits, the March 31, 2010, justice court order, plaintiff's motion for reconsideration of that order, and the justice court's order denying the reconsideration request, but neither party 4 1 On May 26, 2010, the justice court sent DMV 17 notices under ORS 2 809.210, each corresponding to one of the incidents from 1996 or 1997. Each of those 3 notices included the following statement (originally in all capital letters) from the justice 4 court judge: 5 6 7 8 9 "I certify that the defendant named above was notified to pay a fine on the stated charge and warned that for failure to pay, his/her license would be subject to suspension. You are hereby notified that the defendant failed to pay the above fine." DMV then aggregated the justice court's notices into three groups and sent 10 plaintiff three form letters stating that his driving privileges would be suspended in 60 11 days unless he contacted the court and "complet[ed] all the requirements necessary to 12 clear this matter." The letters also informed plaintiff of his right to administrative review 13 and informed plaintiff that, if he wanted administrative review, he should send DMV any 14 evidence he had "to show [he was] not subject to this suspension." DMV explained that, 15 in any administrative review, DMV would "look at [its] records and the documents 16 concerning this matter to determine if [it] took appropriate action." 17 As noted above, plaintiff did not appeal the justice court's rulings; nor did 18 he otherwise contact that court again after he received DMV's suspension-notice letters. 19 However, plaintiff did request administrative review, asserting, among other things, that 20 his driving privileges already had been ordered suspended in 1996 and 1997 for the then- 21 applicable five-year statutory period for unpaid traffic fines. Accordingly, he argued, the transmitted those documents to us on appeal. 5 1 period in which DMV could suspend his driving privileges had "expired long ago." 2 Plaintiff specifically argued to DMV that ORS 809.416(2) and ORS 809.415(4)(a)(B) 3 "limit the period of time for which [DMV] can suspend a license." 4 DMV conducted an administrative review in response to plaintiff's request. 5 In the resulting orders, DMV provided only a brief response to plaintiff's contention that 6 the time during which DMV could suspend his driving privileges for the unpaid fines had 7 expired; it asserted that the current 10-year period referenced in ORS 809.416(2) "refers 8 to the notice that DMV receives from a court, not from the citation or conviction date." 9 DMV also explained that it was affirming the suspensions because, essentially, plaintiff 10 had not established that any of the three defenses outlined in ORS 809.440(2)(b) applied 11 to his case and because plaintiff had "submitted no evidence which would invalidate 12 DMV's action." DMV recommended that plaintiff "contact the court to determine what 13 [he] must do to clear" the docket numbers relating to his suspensions. Plaintiff 14 apparently did not follow that recommendation but, instead, initiated proceedings in 15 circuit court. 16 Although plaintiff filed a complaint for declaratory relief, the circuit court 17 construed his complaint as a petition for judicial review in other than a contested case 18 under ORS 183.484, and the matter proceeded on that basis. Before the circuit court, 19 plaintiff argued, among other things, that DMV lacked authority to suspend his driving 20 privileges a second time for his failure to pay the fines from 1996 and 1997 because those 21 privileges already had been suspended for the maximum statutory period beginning in 6 1 1997. Plaintiff also argued that DMV had erred by not reaching that argument on 2 administrative review. 3 DMV responded that plaintiff's argument regarding enforceability was 4 really a challenge to the justice court's March 31, 2010, order (which required plaintiff to 5 pay the old fines and predicted that his license would be suspended if he did not), not to 6 DMV's administrative action. Accordingly, DMV argued, plaintiff should have appealed 7 directly from the justice court's March 2010 order, and he could not collaterally attack the 8 validity of that order in the DMV proceeding. DMV alternatively argued that it could not 9 address plaintiff's argument because ORS 809.440(2)(b) limits the scope of DMV's 10 administrative review to a review for the three defenses listed in ORS 809.440(2)(b). 11 Because plaintiff did not prove any of those defenses, DMV argued, it acted properly in 12 affirming his suspensions.5 The circuit court ruled in plaintiff's favor, and DMV appeals. 13 DMV first reiterates its "improper collateral attack" theory, arguing that the 14 circuit court should not have reached the merits of plaintiff's challenge to the DMV 15 suspension orders. Because plaintiff did not appeal directly from the March 31, 2010, 16 justice court order that preceded the suspensions, DMV reasons, he should not have been 17 allowed to challenge that order indirectly in a subsequent DMV license-suspension 18 proceeding. 19 DMV's "collateral attack" theory is premised on its contention that plaintiff 5 DMV made additional arguments to the trial court that it does not renew on appeal. 7 1 could have appealed the March 2010 justice court order and that the circuit court erred 2 when it concluded otherwise. DMV makes a single argument in support of that 3 contention: that the order was appealable under ORS 53.010. That statute provides: 4 5 6 7 8 9 "Any party to a judgment in a civil action in a justice court, other than a judgment by confession or for want of an answer, may appeal therefrom when the sum in controversy is not less than $30, or when the action is for the recovery of personal property of the value of not less than $30, exclusive of disbursements in either case, also when the action is for the recovery of the possession of real property under ORS 105.110." 10 We are not persuaded that plaintiff could have appealed the justice court 11 order under ORS 53.010. That statute, by its terms, authorizes an appeal only from "a 12 judgment" entered by a justice court. The parties and the circuit court consistently have 13 referred to the justice court's March 2010 ruling as having taken the form of an order, not 14 a judgment. Moreover, because DMV has not provided us with the exhibit that 15 encompasses the justice court's ruling, see __ Or App at __ n 4 (slip op at 4 n 4), we 16 cannot determine independently whether that ruling might have taken the form of a 17 judgment, notwithstanding the repeated references to it as an order. Accordingly, DMV 18 has not established that plaintiff could have appealed the justice court order under ORS 19 53.010 and, therefore, it has given us no reason to disturb the circuit court's rejection of 20 its "improper collateral attack" theory.6 21 22 DMV's remaining arguments challenge the merits of the circuit court's review of DMV's administrative orders under ORS 183.484. We recently described the 6 DMV explicitly disclaims reliance on ORS 19.205(3), which provides that certain post-judgment orders may be appealed. 8 1 circuit court's task under that statute: 2 3 4 5 6 7 8 9 10 11 12 13 14 Ericsson v. DLCD, 251 Or App 610, 620, 285 P3d 722 (2012) (brackets in Ericsson). 15 "On review, this court reviews the circuit court judgment to determine whether it 16 correctly assessed the agency's decision under those standards. For the most part, that 17 means that the court directly reviews the agency's order under the standards set out in 18 ORS 183.484(5)." Id. (citations omitted). Both before the circuit court and on appeal, 19 the parties have disputed only the proper interpretation of the governing statutes; no 20 agency findings or discretionary actions are at issue. 21 "Under ORS 183.484(5)(a), a reviewing court can 'affirm, reverse or remand the order.' If the court finds that the agency 'erroneously interpreted a provision of law and that a correct interpretation compels a particular action,' it may '[s]et aside or modify the order' or remand it 'to the agency for further action under a correct interpretation of the provision of law.' ORS 183.484(5)(a)(B). Remand is required if the agency's exercise of discretion is '[o]utside the range of discretion delegated to the agency by law;' inconsistent with an agency rule, official position, or practice, 'if the inconsistency is not explained by the agency'; or '[o]therwise in violation of a constitutional or statutory provision.' ORS 183.484(5)(b). Finally, the court may set aside or remand the order if it is not supported by substantial evidence. ORS 183.484(5)(c)." DMV's first argument on the merits relates to the scope of administrative 22 review that it may conduct when a person challenges a license suspension. ORS 809.440 23 governs administrative review under those circumstances, providing for "an informal 24 administrative process" that assures "prompt and careful review by the department of the 25 documents upon which an action is based." ORS 809.440(2)(a). As noted earlier in this 26 opinion, the statute further provides: 27 28 "It shall be a defense to the [suspension] action if a petitioner can establish that: 9 1 2 3 "(A) A conviction on which the department's action is based was for an offense that did not involve a motor vehicle and the department's action is permitted only if the offense involves a motor vehicle. 4 5 6 "(B) An out-of-state conviction on which the department's action is based was for an offense that is not comparable to an offense under Oregon law. 7 8 "(C) The records relied on by the department identify the wrong person." 9 10 ORS 809.440(2)(b). DMV contends that the list of defenses quoted above is an exclusive list-- 11 that is, DMV argues that it can consider only those defenses, and no others, when it 12 conducts administrative review of a suspension of a person's driving privileges. DMV 13 challenges the circuit court's contrary determinations that (1) the ORS 809.440 review 14 provisions give DMV "a heightened responsibility to be circumspect in implementing 15 notices to suspend" and (2) the agency should "decline[ ] to implement the suspension" 16 when the notice it receives from a court "is unlawful on its face," whether that 17 determination is made promptly after DMV receives the notice or during the 18 administrative-review process. 19 To determine whether ORS 809.440(2)(b) creates an exclusive list of 20 defenses to DMV actions on administrative review, we engage in our usual mode of 21 statutory construction, considering the text, context, and useful legislative history of the 22 disputed statute. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). Looking 23 first to the text, we note that ORS 809.440(2)(b) states that it "shall be a defense to the 24 department s action if a petitioner can establish" one of three listed defenses. (Emphasis 10 1 added.) That provision does not prohibit DMV from considering additional defenses, but 2 merely describes three defenses that potentially are available in all cases subject to 3 administrative review under ORS 809.440. See Petersen and Petersen, 132 Or App 190, 4 194, 888 P2d 23 (1994) (holding that ORS 25.280's provision that "the following criteria 5 shall be considered" did "not clearly require the court to base a departure from the 6 [presumptive child support guidelines] only on the criteria enumerated"). As we have 7 recognized in other cases, the legislature knows how to write an exclusive list. See, e.g., 8 Oregonians for Sound Economic Policy v. SAIF, 187 Or App 621, 630, 69 P3d 742, rev 9 den, 336 Or 60 (2003) (explaining that the legislature "certainly knows how" to enact 10 wording that communicates an intent that a statutory scheme be exclusive); Langlotz v. 11 Noelle, 179 Or App 317, 322, 39 P3d 271, rev den, 334 Or 260 (2002) ("Had it wanted to 12 write an exclusive list, the legislature could have done so with any of a variety of 13 locutions."). If the legislature had wanted to forbid the consideration of other possible 14 defenses, it easily could have done so by, for example, enacting a provision stating that it 15 "shall be a defense only" if a licensee establishes one of the circumstances described in 16 ORS 809.440(2)(b). As currently written, however, the legislatively enacted text does 17 not expressly prohibit DMV from considering evidence of defenses other than the three 18 listed. 19 Nor does the context of ORS 809.440(2) suggest a different conclusion. 20 Other statutory provisions require DMV to consider matters beyond the three defenses 21 listed in ORS 809.440(2)(b) when it reviews an ORS 809.415(4) suspension of driving 11 1 privileges for failure to pay a traffic fine, including whether it has received notice from 2 the fining court "showing that the person has paid the fine" and whether "10 years have 3 elapsed." ORS 809.416(2). Indeed, the administrative-review statute requires DMV to 4 conduct a "prompt and careful review * * * of the documents upon which an action is 5 based," ORS 809.440(2)(a), in association with determining whether the person whose 6 driving privileges may be suspended has met his or her "burden of showing by a 7 preponderance of the evidence that the person is not subject to [that] action." ORS 8 809.440(2)(c). Those provisions confirm that DMV's administrative review is not limited 9 to considering the ORS 809.440(2)(b) defenses. 10 Moreover, many types of Department of Transportation actions may result 11 in administrative review under ORS 809.440(2), not just suspensions of driving 12 privileges for failure to pay traffic fines. Considering just one example, ORS 807.173 13 provides that the department may cancel a commercial driver's license that carries a 14 hazardous materials endorsement if the licensee does not pass a security threat 15 assessment, "including receipt by the department of a notice from the federal 16 Transportation Security Administration showing that the person does not pose a security 17 threat." ORS 807.173(1)(a). A person whose license is canceled under that statute is 18 entitled to administrative review under ORS 809.440. ORS 807.173(2). That 19 administrative-review proceeding would be meaningful, in that context, not necessarily 20 because any of the three ORS 809.440(2)(b) defenses would be available, but because the 21 person whose commercial license was canceled would have an opportunity to show that 12 1 he or she was "not subject to the action" under ORS 809.440(2)(c), perhaps because the 2 person could provide the department with the Transportation Security Administration 3 notice showing that he or she was not a security threat. 4 In short, the list of defenses in ORS 809.440(2)(b) is not exclusive, and it 5 does not limit the issues that a person may raise on administrative review. Rather, a 6 person who seeks administrative review under ORS 809.440(2) is entitled to raise any 7 defense to the department's action that is capable of being proved through a "careful 8 review * * * of the documents upon which [that] action is based," ORS 809.440(2)(a), or 9 any other evidence of a type that the pertinent statutes contemplate the department will 10 consider (in the example above, an appropriate notice from the Transportation Security 11 Administration). DMV's contrary argument is unavailing. 12 DMV argues, finally, that, even if it could have considered matters beyond 13 the ORS 809.440(2)(b) defenses, it still would have suspended plaintiff's driving 14 privileges because nothing in the pertinent statutes "prohibits * * * DMV from imposing 15 a repeat suspension" for a continuing failure to pay a traffic fine. Indeed, DMV asserts, 16 even after a person's driving privileges have been suspended for the statutory period for 17 failure to pay a particular traffic fine, DMV may "issue a second 10-year suspension" for 18 the person's ongoing failure to pay that same fine. (Emphasis added.) In that respect, 19 too, we conclude that DMV has interpreted the law incorrectly. 20 21 Two statutes provide that a person's driving privileges may be suspended for 10 years if the person fails to pay a judicially imposed fine for a traffic offense. The 13 1 first is ORS 809.415(4)(a), which provides: 2 3 4 "The department shall suspend driving privileges when provided under ORS 809.416. The suspension shall continue until the earlier of the following: 5 6 7 "(A) The person establishes to the satisfaction of the department that the person has performed all acts necessary under ORS 809.416 to make the person not subject to suspension. 8 9 10 "(B) Ten years from the date the suspension is imposed if the suspension is imposed for a reason described in ORS 809.416 (1) or (2) * * *." 11 The second statute specifying a 10-year suspension period is ORS 809.416(2), which 12 provides: 13 14 15 16 17 18 19 20 "A person is subject to suspension under ORS 809.415(4) if the department receives notice from a court under ORS 809.210 that a person has failed to pay a fine or obey an order of the court. A person who is subject under this subsection remains subject until the person presents the department with notice issued by the court showing that the person has paid the fine or obeyed the order of the court or until 10 years have elapsed, whichever is earlier." According to DMV, those statutes require it to suspend a person's driver's 21 license for 10 years each time a court notifies it that a person has failed to pay a fine 22 associated with a particular traffic offense, even when that results in multiple suspensions 23 for the same unpaid fine. We disagree. Read in context, the two statutes quoted above 24 contemplate a maximum 10-year suspension for failure to pay the fine associated with 25 any given traffic offense. 26 Both ORS 809.415(4)(a) and ORS 809.416(2) incorporate a binary notion 27 of when suspension of a person's driving privileges will end: either when the person pays 28 his or her traffic fines (ORS 809.415(4)(a)(A); ORS 809.416(2)) or when 10 years have 14 1 elapsed (ORS 809.415(4)(a)(B); ORS 809.416(2)). Those two circumstances form the 2 entire universe of possibilities: either the person pays the fines before 10 years have 3 elapsed, thereby cutting short the possible suspension period, or the suspension lasts for a 4 maximum of 10 years if the fines remain unpaid. Under DMV's interpretation of the 5 statutes, however, the suspension of a person's driving privileges would not be limited by 6 any provision of ORS chapter 809, but could continue indefinitely, as long as the court 7 kept notifying DMV that the person still had not paid the traffic fines.7 That 8 interpretation of the statutes cannot be reconciled with the legislative intent to place a 10- 9 year cap on the period of time for which a person's driving privileges may be suspended 10 for failure to pay traffic fines. Cf. ORS 809.380(1) ("The period of suspension shall last 11 as long as provided for that particular suspension by law."). We will not adopt a 12 construction of the statutes that renders references to the 10-year suspension period 13 meaningless. See State v. Stamper, 197 Or App 413, 418, 106 P3d 172, rev den, 339 Or 14 230 (2005) ("[W]e assume that the legislature did not intend any portion of its enactments 15 to be meaningless surplusage."). 7 DMV does take the position that the effective duration of a suspension order would be limited by other statutes--the provisions of ORS 18.180 to 18.194 that specify when judgment remedies expire. Indeed, the purported expiration of judgment remedies is the basis on which the circuit court ruled that the 2010 suspension orders in this case were invalid--it determined that the suspensions impermissibly would continue past the expiration date for judgment remedies associated with the underlying traffic convictions. We express no view on that assessment, as we affirm the circuit court's judgment on other grounds. For similar reasons, we do not reach plaintiff's cross-assignment of error, in which he challenges certain aspects of the circuit court's "expiration of judgment remedies" analysis. 15 1 Indeed, had the legislature intended, as DMV suggests, to allow a person's 2 driving privileges to be suspended for as long as that person fails to pay his or her traffic 3 fines, it could have drafted a statute that said so. That is, the legislature could have 4 enacted a statute that did not reference any period of years, but stated simply that 5 suspension "shall continue until the person has paid the fine." By enacting a statute 6 providing, instead, that the suspension of a person's driving privileges ends when "10 7 years have elapsed," even when the person's fines remain unpaid, the legislature has 8 indicated its intent that a person's failure to pay a specific fine may result in his or her 9 driving privileges being suspended for a maximum of 10 years. ORS 809.416(2). 10 Given our interpretation of the statutory provisions discussed above, a 11 person's driving privileges remain subject to suspension for failure to pay traffic fines for 12 a maximum of 10 years.8 Consequently, a person can establish that he or she "is not 13 subject to" a DMV suspension action for failure to pay a particular traffic fine if the 14 person can show that his or her driving privileges already have been suspended for the 15 maximum statutory period in association with the failure to pay that same fine. See ORS 16 809.440(2)(c) (the person seeking administrative review of a DMV action "has the 17 burden of showing by a preponderance of the evidence that the person is not subject to 18 the action"). DMV erred by not considering plaintiff's argument that he was not subject 19 to the 2010 suspensions for that reason. 8 As noted, before the legislature amended the pertinent statutes in 2007, the maximum suspension period was only five years. See ___ Or App at ___ n 2 (slip op at 2 n 2). 16 1 The only question that remains relates to the appropriate disposition in this 2 case. On review, we "may affirm, reverse or remand the order." ORS 183.484(5)(a). 3 Here, because the pertinent facts are undisputed, we see no reason to remand. As noted 4 above, DMV has acknowledged that in "the 5 years between 1997 and 2003," it 5 suspended plaintiff's driving privileges for "5 years total" in association with his failure to 6 pay each of the 1996 and 1997 fines. Plaintiff agrees. Thus, it is undisputed that DMV 7 already suspended plaintiff's driving privileges for the then-applicable five-year statutory 8 period starting in the late 1990s. Accordingly, we hold that, as a matter of law, DMV 9 lacked authority to suspend plaintiff's driving privileges again, in 2010, for his continued 10 failure to pay the 1996 and 1997 fines. Like the circuit court, we conclude that the 11 appropriate remedy is reversal of the 2010 suspension orders. 12 Finally, we note that the circuit court also ordered DMV to reinstate 13 plaintiff's driving privileges. DMV has not argued that, even if the circuit court was 14 correct in reversing the 2010 suspension orders, it should not have required the agency to 15 reinstate plaintiff's driving privileges. Accordingly, we do not disturb that aspect of the 16 circuit court's judgment, either. 17 Affirmed. 17

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