Chapter 811

See also annotations under ORS chapter 483 in permanent edition.

NOTES OF DECISIONS

Under former similar statute

A party in violation of a motor vehicle statute is negligent as a matter of law unless he introduces evidence from which the trier of fact could find that he was acting as a reasonably prudent person under the circumstances. Barnum v. Williams, 264 Or 71, 504 P2d 122 (1972)

LAW REVIEW CITATIONS

Under former similar statute

10 WLJ 207 (1974)

811.010

NOTE: Repealed as of January 1, 2006

NOTES OF DECISIONS

Trial court’s instruction that it was statutory negligence for driver to stop in intersection to allow pedestrian to cross street in crosswalk unless pedestrian is so close to center of street as to constitute hazard was correct. Miller v. Miller, 106 Or App 434, 808 P2d 105 (1991), Sup Ct review denied

811.025

NOTES OF DECISIONS

Under former similar statute

Requested jury instruction regarding pedestrian’s right of way on sidewalk was properly refused where neither testimony nor exhibits demarcated “adjacent property line.” Nyman v. Lang, 81 Or App 361, 724 P2d 944 (1986)

811.030

NOTES OF DECISIONS

Area that is set apart for “exclusive use of pedestrians” is area which only pedestrians have privilege or benefit of using. State v. Bainbridge, 230 Or App 500, 216 P3d 338 (2009)

811.100

See also annotations under ORS 483.102 in permanent edition.

NOTES OF DECISIONS

Under former similar statute

Notwithstanding fuel conservation speed limit this section applies to speeds in excess of 55 miles per hour that are unsafe under the circumstances. State v. Ringle, 40 Or App 393, 595 P2d 824 (1979), Sup Ct review denied

ATTY. GEN. OPINIONS

Under former similar statute

Violation of the energy conservation speed limit, (1976) Vol 37, p 1388

811.105

See also annotations under ORS 483.104 in permanent edition.

NOTES OF DECISIONS

Under former similar statute

Under evidence that accident occurred on road bordering park, whether driver was within public park and subject to speed limit of this section at place of accident was question for jury. Pitts v. Strain, 282 Or 329, 578 P2d 1238 (1978)

In general

School zone speed limit applicable when “children are present” is particular variation on basic speed rule, therefore class of persons intended to be protected by limit is not restricted to children. Stokes v. Lundeen, 168 Or App 430, 7 P3d 586 (2000), Sup Ct review denied

811.110

NOTE: Repealed as of January 1, 2004

NOTES OF DECISIONS

Under former similar statute

Where twentieth traffic infraction was that of violating 55 miles per hour maximum speed, defendant was not held habitual offender “solely” on basis of violating 55 miles per hour maximum speed, for state still had to show 19 other convictions to meet its burden of proof. State v. Stehle, 33 Or App 115, 575 P2d 994 (1978)

As the purpose of this section is fuel conservation, it does not prevent the application of basic speed rule to a speed in excess of 55 miles per hour which is unsafe under the circumstances. State v. Ringle, 40 Or App 393, 595 P2d 824 (1979), Sup Ct review denied

ATTY. GEN. OPINIONS

Under former similar statute

City authority to construct speed bumps to control vehicle speed, (1975) Vol 37, p 658; violation of the energy conservation speed limit, (1976) Vol 37, p 1388

811.125

NOTES OF DECISIONS

Under former similar statute

Legislature has sufficiently differentiated speed racing from DUII and traffic infraction of failure to perform duties involved in accident causing property damage and defendant was properly tried under preponderance of evidence burden of proof provided by this section. State v. Walter, 36 Or App 303, 585 P2d 356 (1978), Sup Ct review denied

811.135

NOTES OF DECISIONS

Under former similar statute

It was error for court to instruct jury that defendant could be found guilty of both fourth degree assault and careless driving for same motor vehicle accident. State v. Ritchey, 46 Or App 871, 613 P2d 501 (1980)

Phrase “in a manner that endangers or would be likely to endanger any person or property” is not impermissibly vague. State v. Sarriugarte, 66 Or App 406, 674 P2d 82 (1984)

In general

Statutory protections against former jeopardy are not violated where in single proceeding defendant is acquitted by jury of crime and then convicted by court of lesser included offense that jury cannot try. State v. Cuffee, 87 Or App 293, 742 P2d 637 (1987); State v. Darlin, 122 Or App 172, 857 P2d 859 (1993)

Careless driving is lesser included offense of reckless driving. State v. Cuffee, 87 Or App 293, 742 P2d 637 (1987)

811.140

NOTES OF DECISIONS

Under former similar statute

Evidence that defendant was driving while intoxicated, although he was not so charged, together with evidence of several near-misses with parked cars and oncoming traffic was sufficient to allow trial court to conclude defendant’s driving was reckless. State v. Griffin, 55 Or App 849, 640 P2d 629 (1982), Sup Ct review denied

In general

Careless driving is lesser included offense of reckless driving. State v. Cuffee, 87 Or App 293, 742 P2d 637 (1987)

Court erred by instructing jury that term “recklessly” includes driving while under influence of intoxicants where effect of instruction was to direct jury to find defendant guilty of reckless driving upon finding defendant guilty of DUII. State v. Luke, 104 Or App 541, 802 P2d 672 (1990)

Finding that driving “endangered” safety of others or property does not require direct evidence of manner in which defendant actually drove vehicle. State v. Smith, 218 Or App 568, 180 P3d 148 (2008)

811.170

NOTES OF DECISIONS

Under former similar statute

Ability to identify beer is within common experience, and thus police officer’s testimony that contents of labeled beer bottle appeared and smelled like beer was sufficient to allow factfinder to infer that it was in fact beer. City of Gladstone v. Leonard, 33 Or App 169, 575 P2d 1012 (1978)

Under this section, the offense as well as the procedure has been decriminalized, so prosecutions are not criminal prosecutions, and due process guarantees of U.S. Constitution do not apply. State v. Vance, 53 Or App 290, 631 P2d 843 (1981)

In general

Officer had probable cause to believe passenger in violation where open bottle of beer was on floor of car near feet of passenger. State v. Garza, 104 Or App 350, 801 P2d 350 (1990), Sup Ct review denied

811.175

NOTES OF DECISIONS

Legislature intended that separate sentences were permissible for driving under influence of intoxicants and driving while suspended when they arise out of same driving episode. State v. Hale, 80 Or App 361, 722 P2d 1269 (1986)

Defendant in driving while suspended case is entitled to collaterally attack underlying convictions on which habitual traffic offender status is based. State v. Gilbert, 87 Or App 484, 742 P2d 713 (1987)

Where defendant volunteered information about automobile accident, stated that he had been driving and that he was driving in violation of restrictions placed on his driver license, provided his driver license number, made statement about cause of accident and statements regarding restrictions on license, such evidence, in prosecution for driving while suspended, was “some proof” other than defendant’s confession which corroborated confession that he had been driving. State v. Manzella, 88 Or App 258, 744 P2d 1321 (1987), aff’d 306 Or 303, 759 P2d 1078 (1988)

Where there is no evidence that defendants’ driver licenses were suspended or revoked for any reason in ORS 811.182, which would make offenses misdemeanors, and defendants were tried in district court, which does not have felony jurisdiction, court only had statutory authority to enter judgments for infraction driving while suspended or revoked under this provision. State v. Conlon/Manning, 108 Or App 141, 813 P2d 1132 (1991)

Defendant’s guilty plea to driving infraction of driving uninsured did not preclude prosecution for driving while suspended or revoked. State v. Lazaro, 113 Or App 330, 832 P2d 1259 (1992), Sup Ct review denied

Misdemeanor driving while suspended is not lesser included charge of felony driving while suspended. State v. Edwards, 123 Or App 519, 860 P2d 846 (1993)

Revocation terminates after statutory period so that driver assumes status of being unlicensed but not revoked. State v. Hammerton/Walmsley, 320 Or 454, 886 P2d 1012 (1994)

Where indictment fails to allege driving privileges were suspended in Oregon, identity of suspending entity is material element of offense. State v. Newman, 179 Or App 1, 39 P3d 874 (2002); State v. Crawford, 179 Or App 160, 39 P3d 917 (2002)

811.180

NOTES OF DECISIONS

Under former similar statute

Affirmative defense of failure to receive notice of suspension is not established by law by fact that envelope in which notice was transmitted was stamped “unclaimed.” State v. DeMello, 74 Or App 503, 703 P2d 276 (1985), aff’d 300 Or 590, 716 P2d 732 (1986)

In general

Defendant is not barred by this section from asserting lack of notice defense where failure to deliver notice of suspension of his driver license was not caused by defendant’s failure to notify MVD of his change of address within 30 days. State v. Sickles, 85 Or App 353, 736 P2d 223 (1987)

Evidence of “unclaimed” notation on suspension notice and defendant’s testimony that she neither received notice nor had actual knowledge of suspension was not sufficient to meet burden of proof of defense of lack of notice in prosecution for driving while suspended. State v. Click, 87 Or App 272, 742 P2d 67 (1987), aff’d 305 Or 611, 755 P2d 693 (1988)

Showing that post office failed to deliver notice of driver license suspension by certified letter is part of defendant’s burden in establishing non-notice of suspension. State v. Click, 305 Or 611, 755 P2d 693 (1988)

Affirmative defense to criminal charge may be withdrawn from jury’s consideration only if there is no evidence in record to support element of defense. State v. Brown, 306 Or 599, 761 P2d 1300 (1988)

To establish affirmative defense of injury or threat of injury, defendant need only establish, first, that he believed there was injury or threat thereof and believed that circumstances were urgent, and, second, that information available to him would cause reasonable person so to believe. State v. Brown, 306 Or 599, 761 P2d 1300 (1988)

Affirmative defense under this section that defendant had not received notice of suspension was not available to defendant who failed to notify MVD of his new address as required by ORS 807.560 where defendant was driving in Oregon and continued to hold his Oregon driver license after moving. State v. Hayes, 99 Or App 387, 782 P2d 177 (1989), Sup Ct review denied

811.182

NOTES OF DECISIONS

Defense of guilty except for insanity is available to persons charged under this section. State v. Olmstead, 310 Or 455, 800 P2d 277 (1990)

Where there is no evidence that defendants’ driver licenses were suspended or revoked for any reason in this provision, which would make offenses misdemeanors, and defendants were tried in district court, which does not have felony jurisdiction, court only had statutory authority to enter judgments for infraction driving while suspended or revoked under ORS 811.175. State v. Conlon/Manning, 108 Or App 141, 813 P2d 1132 (1991)

Indictment that alleges offense is felony, but does not specify grounds for underlying suspension or revocation, provides adequate notice of charge. State v. Early, 180 Or App 342, 43 P3d 439 (2002), Sup Ct review denied

Where defendant does not argue that notice of revocation was inadequate or that prerevocation hearing was denied, defendant may not collaterally attack validity of revocation order. State v. Sims, 335 Or 269, 66 P3d 472 (2003)

Under 2001 version of this section, state was not required to prove, and defendant could not collaterally challenge, validity of suspension. State v. Jones, 223 Or App 70, 195 P3d 78 (2008), modified 224 Or App 451, 199 P3d 317 (2008)

811.210

LAW REVIEW CITATIONS: 26 WLR 544 (1990)

811.260

NOTES OF DECISIONS

Under former similar statute (ORS 487.125)

In action against defendant city for injury connected with “locked” traffic signal, this section did not mean that signal did not malfunction just because it gave steady signal. Menke v. Bruce, 88 Or App 107, 744 P2d 291 (1987)

Under former similar statute (ORS 487.255)

Instruction in words of this section that “after stopping, driver shall yield right of way to any vehicle in intersection or approaching so closely as to constitute immediate hazard during time when driver is moving across or within intersection” was adequate, and court was not required to give defendant’s requested “immediate hazard” instruction. Collins v. Vann, 37 Or App 535, 588 P2d 52 (1978)

811.265

NOTES OF DECISIONS

Proper positioning of traffic control device is not element of offense under this section, but is fact that defendant is entitled to challenge by affirmative defense. State v. Boly, 210 Or App 132, 149 P3d 1237 (2006)

811.275

See also annotations under ORS 483.202 in permanent edition.

NOTES OF DECISIONS

Under former similar statute

When plaintiff introduces evidence of defendant’s failure to yield right of way, defendant may refute it by introducing evidence of favored vehicle’s excessive speed, but if defendant does not introduce such evidence, it is error to give an instruction on excessive speed. Medina v. Mayo, 267 Or 315, 516 P2d 1297 (1973)

811.280

See annotations under ORS 483.206 in permanent edition.

811.285

See annotations under ORS 483.202 in permanent edition.

811.295

See also annotations under ORS 483.302 in permanent edition.

NOTES OF DECISIONS

Under former similar statute

Under former similar statute, the duty to drive in the right half of a highway was not absolute and the section did not establish a standard for negligence as a matter of law. Mennis v. Highland Trucking, Inc., 261 Or 233, 492 P2d 464 (1972)

In general

Infraction does not require presence of oncoming traffic. State v. Mealer, 129 Or App 456, 879 P2d 230 (1994), Sup Ct review denied

811.300

See also annotations under ORS 483.306 in permanent edition.

NOTES OF DECISIONS

Under former similar statute

Duty to drive in the right half of a highway is not absolute and this section does not establish a standard for negligence as a matter of law. Mennis v. Highland Trucking, Inc., 261 Or 233, 492 P2d 464 (1972)

811.310

See annotations under ORS 483.306 in permanent edition.

811.315

See annotations under ORS 483.304 in permanent edition.

811.335

NOTES OF DECISIONS

Requirement that signal be given applies to any change in direction of travel from one street to another at intersection, whether or not directional change is only available option. State v. Bea, 318 Or 220, 864 P2d 854 (1993)

Turn made after stop is subject to requirement for continuous signal at least 100 feet prior to turning. State v. Arthur, 158 Or App 623, 976 P2d 1146 (1999), Sup Ct review denied

811.350

See annotations under ORS 483.202 in permanent edition.

811.370

NOTES OF DECISIONS

For violation to exist, failure to stay within single lane of travel must be result of act or omission within control of driver. Frasier v. DMV, 172 Or App 215, 17 P3d 582 (2001)

Center line of roadway is not part of traffic lane for purposes of operating vehicle within single lane. State v. McBroom, 179 Or App 120, 39 P3d 226 (2002), Sup Ct review denied

811.400

NOTES OF DECISIONS

Where legislature did not qualify term “lane,” it is apparent legislature intended term to include all lanes of highway including those used for parking. State v. Thomas, 104 Or App 126, 799 P2d 208 (1990)

Defendant driving in merge lane and entering driving lane is required to signal. State v. Belcher, 108 Or App 741, 816 P2d 1215 (1991)

Where right turn was only available lawful option, driver was not required to signal. State v. Padilla, 119 Or App 27, 850 P2d 372 (1993), Sup Ct review denied

811.410

See annotations under ORS 483.308 in permanent edition.

811.415

See annotations under ORS 483.308 in permanent edition.

811.425

NOTES OF DECISIONS

Under former similar statute

Police officer’s testimony that he observed at least eight cars lined up behind defendant’s, that speed faster than defendant was traveling was not unreasonable under circumstances, and that there were areas in which defendant could have made a safe turnout, was sufficient to support conviction under this section. State v. Smith, 30 Or App 475, 567 P2d 579 (1977), Sup Ct review denied

811.505

NOTES OF DECISIONS

Under former similar statute (ORS 487.450)

Where only evidence was that defendant did not stop before entering sidewalk, statutory negligence was presumptively established. Reynolds v. Tyler, 65 Or App 173, 670 P2d 223 (1983)

811.515

See also annotations under ORS 485.020 in permanent edition.

NOTES OF DECISIONS

Under former similar statute

Under former similar statute, failure of operator of a worker transport bus to have flashing red lights in operation on the rear of the bus was as a matter of law not negligent since the Motor Vehicles Division had not as yet changed its regulations from prohibiting to either authorizing or requiring such lights on worker transport buses. Lasley v. Dorsey Bus Co., 271 Or 228, 531 P2d 278 (1975)

811.535

NOTES OF DECISIONS

Under former similar statute

This section encompasses only those orders which fall under the officer’s general authority to direct, control or regulate traffic and thus the state must establish as an element of the offense that the order allegedly disobeyed related to that authority. State v. Rodinshy, 60 Or App 193, 653 P2d 551 (1982)

811.540

NOTES OF DECISIONS

Under former similar statute (ORS 487.555)

Nonviolent flight from attempted arrest is not criminal, and thus evidence was insufficient to sustain escape charge where defendant was convicted of driving under influence of intoxicants and third degree escape. State v. Swanson, 34 Or App 59, 578 P2d 411 (1978)

Where defendant was driving car in one direction on street, police officer traveling in other direction indicated by lights and signal defendant was to pull over, defendant pulled off road at first opportunity and immediately after stopping car jumped out and fled on foot, flight from car, standing alone, could not serve as basis for conviction under this section. State v. O’Connor, 36 Or App 293, 584 P2d 352 (1978)

Campus security officer who was also deputy sheriff was not “police officer” within meaning of this section where his uniform and automobile identified him only as security officer. State v. Beaman, 42 Or App 57, 599 P2d 476 (1979)

In general

Requirement that police officer be in uniform and display badge or be operating marked vehicle is essential element of offense that must be specified in indictment. State v. Burnett, 185 Or App 409, 60 P3d 547 (2002)

Person need not be within sight of pursuing officer at time person flees or attempts to elude officer by leaving vehicle. State v. Cave, 223 Or App 60, 195 P3d 446 (2008), Sup Ct review denied

811.550

NOTES OF DECISIONS

811.560

NOTES OF DECISIONS

811.700

NOTES OF DECISIONS

Under former similar statute

Criminal charge based on failure of driver involved in accident to leave name and address is not a charge which can be dismissed on basis of civil compromise. State v. Duffy, 33 Or App 301, 576 P2d 797 (1978)

One charged with Class A traffic infraction under this section is entitled to trial by jury and proof beyond reasonable doubt. State v. Riggs, 35 Or App 571, 582 P2d 457 (1978), Sup Ct review denied

“Accident” under this section includes intentional as well as unintentional vehicular collisions. State v. Parker, 70 Or App 397, 689 P2d 1035 (1984), aff’d 299 Or 534, 704 P2d 1144 (1985)

Defendant-parking lot attendant who damaged complainant’s car while parking another and declined to provide information required by this section did not violate section in failing to provide information since he had remained at scene of accident at all times. State v. Martin, 298 Or 264, 691 P2d 908 (1984)

In general

Requirement that driver damaging property take “reasonable steps” to notify property owner is not unconstitutionally vague. State v. Porter, 95 Or App 373, 768 P2d 940 (1989), Sup Ct review denied

Requirement in this section that person involved in accident give name and address to driver of other car does not impose substantial risk of self-incrimination and thus does not violate Article I, section 12 of the Oregon Constitution. State v. Monroe, 101 Or App 379, 790 P2d 1188 (1990)

If defendant actually and reasonably believed compliance with this section was literally impossible, she would not have had required culpable mental states and failure to give requested jury instruction prejudiced defendant. State v. Monroe, 101 Or App 379, 790 P2d 1188 (1990)

Although statute does not require driver of vehicle that damages property to remain at scene and report accident before moving car, court could determine that driver did not intend to report accident, where driver with suspended license and driving under influence damaged fire hydrant and sped away from scene just as police officer arrived. State v. Pruitt, 115 Or App 587, 839 P2d 735 (1992), Sup Ct review denied

“Collides” refers only to collision that results in damage to unattended vehicle. State v. Foote, 154 Or App 227, 960 P2d 900 (1998)

Duties arising from accident that results “only” in damage to vehicle apply to any accident in which vehicle damage occurs, regardless of whether other damage, injury or duty results or arises. State v. Hval, 174 Or App 164, 25 P3d 958 (2001), Sup Ct review denied

811.705

NOTES OF DECISIONS

Under former similar statute

Failure to remain at scene of accident may or may not be excused, depending upon reasonableness of driver’s apprehension of danger and seriousness of accident, and this is question of fact to be submitted to trier of fact. State v. Burris, 10 Or App 297, 500 P2d 265 (1972)

Failure to perform duties of driver at scene of accident which resulted in death of person is state traffic offense and therefore not expungeable. State v. Greer, 26 Or App 605, 553 P2d 1087 (1976)

To establish implicit requirement that defendant acted knowingly, state must show that defendant knew, or can be inferred to have known, that accident was likely to have involved injury or death to another person. State v. Corpuz, 49 Or App 811, 621 P2d 604 (1980)

It was proper to separately sentence for assault (ORS 163.175) and failure to perform duties of driver involved in an accident since knowingly leaving accident scene was not part of reckless activity which resulted in assaults but was intended to accomplish separate result. State v. Lopez, 56 Or App 179, 641 P2d 596 (1982), Sup Ct review denied

In general

If person knows that person has been in accident, culpability for failure to perform duties of driver is established if person acts intentionally, knowingly, recklessly or with criminal negligence. State v. Van Walchren, 112 Or App 240, 828 P2d 1044 (1992), Sup Ct review denied

Although charging instrument in prosecution under this section alleged that “medical and surgical treatment...was necessary,” it pleaded complete defense that victim died immediately because nothing could have been done to preserve victim’s life. State v. Burton, 114 Or App 84, 834 P2d 477 (1992)

Requirement to remain at scene and give nonincriminatory information does not create compelling circumstances equivalent to custodial situation. State v. Larson, 141 Or App 186, 917 P2d 519 (1996), Sup Ct review denied

Person must have culpable mental state to commit offense of failure to performduties of driver to injured persons. State v. Hamlett, 235 Or App 72, 230 P3d 92 (2010)

Culpability for offense of failure to perform duties of driver to injured person is established if person acts with culpable mental state. State v. Hamlett, 235 Or App 72, 230 P3d 92 (2010)

Each injured person for whom defendant fails to render reasonable assistance is separate victim. State v. Moncada, 241 Or App 202, 250 P3d 31 (2011)

811.706

NOTES OF DECISIONS

Award of damages for injuries or losses resulting from accident itself must be in form of restitution award, not compensatory fine. State v. Kappelman, 162 Or App 170, 986 P2d 603 (1999)

Restitution may be ordered only if court finds that accident in which defendant failed to perform duties was caused by defendant. State v. Piazza, 170 Or App 628, 13 P3d 567 (2000)

Where fault is contested, defendant is entitled to evidentiary hearing regarding whether defendant caused accident resulting in damage. State v. Hval, 174 Or App 164, 25 P3d 958 (2001), Sup Ct review denied

Court must give consideration to rehabilitative effect of restitution award and to defendant’s ability to pay. State v. Hval, 174 Or App 164, 25 P3d 958 (2001), Sup Ct review denied

Where defendant abandoned vehicle after accident, pecuniary damage resulting from collision with abandoned vehicle did not result from incident that imposed duties of driver on defendant. State v. Llanos-Martinez, 185 Or App 597, 60 P3d 1099 (2003)

Defendant does not have right to jury determination of whether defendant caused incident resulting in damages. State v. Webster, 220 Or App 531, 188 P3d 329 (2008), Sup Ct review denied

Damages resulting from incident are not limited by type of duty person fails to perform. State v. Bassett, 243 Or App 289, 259 P3d 953 (2011)

811.720

ATTY. GEN. OPINIONS: Police officer duty to report intentional line-of-duty collision or other vehicle damage, (2004) Vol 50, No. 8280

811.725

NOTES OF DECISIONS

Under former similar statute

Suspension of operator’s license for failure to report accident, based solely on written police report, did not constitute denial of due process, especially where petitioner did not challenge accuracy of report, offer any contrary evidence, or seek subpoena to produce police officer who had authored report. Felling v. Motor Vehicles Division, 30 Or App 479, 567 P2d 581 (1977)

In general

Conviction for offense of driver failure to report accident does not require proof of culpable mental state. Hazen v. DMV, 241 Or App 413, 250 P3d 962 (2011)

ATTY. GEN. OPINIONS

In general

Police officer duty to report intentional line-of-duty collision or other vehicle damage, (2004) Vol 50, No. 8280