State v. Arriaga-Mendoza

Under ORS 811.175(1), the material time period for a Driving While Suspended charge is not a specific date, but rather, “during a period when the person’s driving privileges or right to apply for driving privileges have been suspended or revoked[.]”

Petitioner was convicted of Driving While Suspended (DWS), a misdemeanor.

On appeal, Petitioner first argued that the trial court erred when it admitted into evidence a prior judgment of conviction because, unredacted, portions of the judgment were irrelevant to the present DWS charge. However, the court rejected the argument because it was unpreserved.

Second, Petitioner argued that the trial court erred when it denied his motion for judgment of acquittal (MJOA). He argued that because the specific date of the incident was incorrect, and the date is a material element of DWS, the error was a “material variance” requiring acquittal.

ORS 811.175(1) defines the material time period as “during a period when the person’s driving privileges * * * have been suspended[.]” Accordingly, the court held that the “time period of the suspension” is relevant to determining whether a defendant committed the crime of DWS–not the “specific date during the period of suspension” when the person drove. Thus, even if the date could have been severed from the charging instrument, because the charging instrument indicated a period of time when Petitioner’s license was in fact suspended, the instrument would still have included the material time element–during a period of suspension.

Affirmed.