562 December 20, 2023 No. 662

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

IRINA GENNADYEVNA KNOWLES,

Defendant-Appellant.

Lincoln County Circuit Court

21CR39864; A179041

Joseph C. Allison, Judge pro tempore.

Submitted November 16, 2023.

Adam Kimmell filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Peenesh Shah, Assistant Attorney 

General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Lagesen, Chief 

Judge, and Kamins, Judge.

TOOKEY, P. J.

Affirmed.
Cite as 329 Or App 562 (2023) 563
564 State v. Knowles

TOOKEY, P. J.

Defendant was charged by indictment with driving under the influence of intoxicants (DUII), in violation of 

ORS 813.010 and ORS 813.011. The indictment alleged that 

defendant had two prior California convictions, which would 

have the effect of elevating the charged offense to a felony 

under ORS 813.011.1

In a demurrer, defendant acknowledged the two 

prior California convictions but asserted that one of those 

convictions does not qualify as predicate conviction under 

ORS 813.011. The trial court rejected defendant’s demurrer, 

and defendant entered a conditional guilty plea to felony 

DUII.

On appeal, defendant assigns error not to the denial 

of her demurrer but to her conviction. She continues her 

assertion that one of the prior California convictions alleged 

in the indictment does not qualify as a predicate conviction 

to elevate the offense to a felony under ORS 813.011. She 

seeks a reversal of the judgment convicting her of a felony 

and entry of a judgment of conviction for a misdemeanor 

under ORS 813.010.

1 ORS 813.011 elevates the offense of DUII to a felony when the defendant 

has prior qualifying convictions:

“(1) Driving under the influence of intoxicants under ORS 813.010 shall 

be a Class C felony if at least two times in the 10 years prior to the date of 

the current offense the defendant has been convicted of any of the following 

offenses in any combination:

“(a) Driving under the influence of intoxicants in violation of ORS 

813.010, or its statutory counterpart in another jurisdiction.

“(b) A driving under the influence of intoxicants offense in another jurisdiction that involved the impaired driving or operation of a vehicle, an aircraft or a boat due to the use of intoxicating liquor, cannabis, a controlled 

substance, an inhalant or any combination thereof.

“(c) An offense in another jurisdiction that involved driving or operating 

a vehicle, an aircraft or a boat while having a blood alcohol content above that 

jurisdiction’s permissible blood alcohol content.

“(2) Once a person has been sentenced for a Class C felony under this section, the 10-year time limitation is eliminated and any subsequent episode of 

driving under the influence of intoxicants shall be a Class C felony regardless 

of the amount of time which intervenes.

“(3) Upon conviction for a Class C felony under this section, the person 

shall be sentenced to a mandatory minimum term of incarceration of 90 days, 

without reduction for any reason.”
Cite as 329 Or App 562 (2023) 565

The state contends that defendant’s challenge to 

whether the California conviction can constitute a predicate 

conviction under ORS 813.011 was not preserved. The state 

asserts that the trial court’s adverse ruling on defendant’s 

demurrer, which is the only ruling that defendant reserved 

for appeal on her conditional guilty plea, addressed only 

whether the indictment, which alleged two California DUII 

convictions, was sufficient on its face to establish felony 

DUII. But in the state’s view, defendant did not preserve a 

challenge as to whether the state could prove that defendant 

had two qualifying prior convictions.

As the state correctly points out, a demurrer challenges only the legal sufficiency of the face of the indictment. 

ORS 135.630(4) (A defendant “may demur to the accusatory 

instrument when it appears upon the face thereof ** * [t]hat 

the facts stated do not constitute an offense[.]”); State v. 

Cervantes, 232 Or App 567, 573, 223 P3d 425 (2009) (A court 

ruling on a demurrer “may consider only the information 

alleged in the indictment”). Here, the indictment alleged 

two predicate California convictions and did not cite the 

statutes under which defendant was convicted. The indictment was legally sufficient on its face to charge defendant 

with felony DUII.

Thus, the state is technically correct that the trial 

court would not have erred in rejecting a challenge to the 

indictment by demurrer on that basis.

However, the state did not raise that argument 

against the demurrer below, and the trial court did not reject 

the demurrer on that basis. Instead, with the parties’ agreement, the trial court treated defendant’s argument based 

on the adequacy of the predicate California offense as properly before it as if “in arrest of judgment.” Thus, the state 

acquiesced in the trial court’s consideration of defendant’s 

arguments on the demurrer. Assuming, without deciding, 

that the trial court could properly address the argument 

raised by the demurrer pretrial, we conclude for the reasons 

explained below that the trial court did not err in rejecting 

defendant’s contention on its merits.2

2 We agree with defendant that the argument is “preserved,” in the sense that it 

was raised below. At the hearing on defendant’s demurrer, the state asserted that the 
566 State v. Knowles

ORS 813.011 elevates the offense of DUII to a felony 

when the defendant has prior qualifying convictions:

“(1) Driving under the influence of intoxicants under 

ORS 813.010 shall be a Class C felony if at least two times 

in the 10 years prior to the date of the current offense 

the defendant has been convicted of any of the following 

offenses in any combination:

“(a) Driving under the influence of intoxicants in violation of ORS 813.010, or its statutory counterpart in another 

jurisdiction.

“(b) A driving under the influence of intoxicants 

offense in another jurisdiction that involved the impaired 

driving or operation of a vehicle, an aircraft or a boat due 

to the use of intoxicating liquor, cannabis, a controlled substance, an inhalant or any combination thereof.

“(c) An offense in another jurisdiction that involved 

driving or operating a vehicle, an aircraft or a boat while 

having a blood alcohol content above that jurisdiction’s permissible blood alcohol content.”

It is undisputed that defendant’s prior California convictions were under California Vehicle Code (Cal Veh Code), 

section 23152(b), which provides, as relevant:

“It is unlawful for a person who has 0.08 percent or 

more, by weight, of alcohol in his or her blood to drive a 

vehicle.”

demurrer was untimely, because it had not been asserted at arraignment. In colloquy, the court and the attorneys discussed whether the demurrer should be rejected 

on that basis or allowed to go forward as if raised after trial “in arrest of judgment.” 

ORS 135.640 (“When the objections mentioned in ORS 135.630 appear upon the face 

of the accusatory instrument, they can only be taken by demurrer, except that the 

objection to the jurisdiction of the court over the subject of the accusatory instrument, or that the facts stated do not constitute an offense, may be taken at the trial, 

under the plea of not guilty and in arrest of judgment.”). The parties agreed to allow 

the court to consider the merits of the demurrer. The record shows that defendant’s 

arguments at the hearing presented the same legal contention raised on appeal that 

one of defendant’s California convictions could not be a predicate for a felony designation under ORS 813.011. We understand the court’s ruling on the demurrer to 

have been based on a rejection of that argument. Thus, although not presented in the 

proper posture, the exact question that defendant raises on appeal was presented to 

the court below and decided. For that reason, we conclude that the purposes of preservation have been satisfied. See State v. Amaya, 336 Or 616, 629, 89 P3d 1163 (2004) 

(“The purpose of the preservation rule is the practical one of requiring a defendant to 

provide an explanation of his or her position specific enough to ensure that the trial 

court can identify its alleged error with enough clarity to permit it to consider and 

correct the error immediately, if correction is warranted.”). 
Cite as 329 Or App 562 (2023) 567

We need not reach the state’s contention that Cal Veh 

Code § 23152(b) is a statutory counterpart to ORS 813.010, 

under ORS 813.011(1)(a) and State v. Guzman/Heckler, 366 

Or 18, 455 P3d 485 (2019). That is because we conclude that 

defendant’s conviction under Cal Veh Code § 23152(b) was 

for an offense “that involved driving or operating a vehicle, 

an aircraft or a boat while having a blood alcohol content 

above that jurisdiction’s permissible blood alcohol content.” 

ORS 813.011(1)(c). The California conviction therefore serves 

as a predicate for an elevation of defendant’s Oregon DUII 

conviction to a felony.

Defendant asserts that her California conviction 

is not a predicate offense, because the California statute 

provides that a person’s blood alcohol content (BAC) of .08 

at the time of driving can be established by a rebuttable 

presumption

“that * * * the person had 0.08 percent or more, by weight, of 

alcohol in his or her blood at the time of the performance of 

a chemical test within three hours after the driving.”

Cal Veh Code § 23152(b). In that way, defendant argues, the 

presumption allows a conviction without proof that the person’s BAC was .08 or higher while driving.

We reject defendant’s contention. A conviction under 

Cal Veh Code § 23152(b) requires proof that a person drove

with a BAC of .08 or more. The rebuttable presumption 

establishes only a means by which the prosecution can prove 

that the person drove with a BAC of .08 or more. A conviction under Cal Veh Code § 23152(b) therefore is a conviction that involves “driving or operating a vehicle *** while 

having a blood alcohol content above” California’s permissible blood alcohol content. ORS 813.011(1)(c). Having been 

convicted under Cal Veh Code § 23152(b), defendant has a 

conviction for driving while having a blood alcohol content 

above California’s legal limit. The trial court therefore did 

not err in determining that defendant’s conviction can serve 

as a predicate for elevation of her Oregon DUII conviction to 

a felony.

Affirmed.