Is a traffic violation a "criminal prosecution?"

"the Supreme Court noted that there is “no easy test for when the imposition of a sanction is a ‘criminal prosecution’ within the meaning of the constitutional guarantees.” Id. at 101-02. However, if the legislature chooses to define conduct as a criminal offense, “it is a criminal offense for constitutional purposes even if the same consequences could have been attached to the same conduct by civil or administrative proceedings.” Id. at 102. On the other hand, the legislature cannot deny the defendant the constitutional protections required in criminal prosecutions “simply by avoiding the term ‘criminal’ ” when it defines an offense. Id.

The court then set out five factors for determining whether an “ostensibly civil penalty proceeding remains a ‘criminal prosecution’ for constitutional purposes”: (1) the type of offense, including whether the offense was a crime at common law or whether it involves traditional elements of mens rea or a lower degree of culpability; (2) the potential penalties arising from a conviction, specifically whether there is a potential for imprisonment or a heavy fine; (3) the collateral consequences arising from a conviction; (4) the “punitive significance” of a conviction; and (5) whether the pretrial procedures associated with a criminal proceeding, including arrest and detention, are allowed. Id. at 102-08. All of those factors “are relevant, but none is conclusive.” Id. at 102. After applying that test to a first-offense DUII, the court concluded that the offense retained “too many penal characteristics not to be a ‘criminal prosecution’ under article I, section 11 of the constitution[,]” and the defendant was therefore “entitled to the protections of this and other sections governing criminal prosecutions, including the right to representation by counsel.” Id. at 109.

In Benoit and Fuller, the Supreme Court applied the five-factor test set out in Brown. Benoit involved a protestor charged with criminal trespass, initially charged as a misdemeanor but later reduced to a Class A violation by the prosecutor's election under ORS 161.566(1). 354 Or at 304. Similarly, Fuller concerned a defendant charged with attempted first-degree theft and third-degree theft, also initially charged as misdemeanors but reduced to Class A violations by prosecutorial election. 354 Or at 297. In both cases, the court concluded that the violation offenses retained too many penal characteristics to not be characterized as “criminal prosecutions.”

Here, based on the five-factor test articulated in Brown, we conclude that the proceeding for defendant's violation for failing to obey a police officer was not a “criminal prosecution.” "