STATE v. FOX, 57 Or. App. 533 (1982)

645 P.2d 588

STATE OF OREGON, Respondent, v. DWIGHT PHILLIP FOX, JR., Appellant.

No. 81-2336-C, CA A22091Oregon Court of Appeals.Argued and submitted December 16, 1981
Affirmed May 26, 1982 Reconsideration denied July 8, 1982 Petition for review denied August 3, 1982 (293 Or. 456)

Appeal from District Court, Jackson County.

R. B. White, Judge.

Penny Lee Austin, Medford, argued the cause for appellant. With her on the brief was Grant, Ferguson Carter, Medford.

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Robert E. Barton, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and William F. Gary, Solicitor General, Salem.

Before Buttler, Presiding Judge, and Warden and Warren, Judges.

WARREN, J.

Affirmed.

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WARREN, J.

Defendant was cited for driving outside the restrictions on the license issued to him after his driver’s license was suspended. He appeals his conviction, after trial to the court, of driving while suspended. ORS 487.560.[1] We affirm.

Defendant was arrested at 1:38 a.m., while driving to a motel after having consumed alcoholic beverages. At trial, the state introduced the order suspending defendant’s license and proof of mailing of notice. It also introduced testimony of the arresting officer, who saw the restrictions imprinted on defendant’s license. The officer testified that defendant was prohibited from engaging in social driving and that he was driving “three hours or more” after the permissible hours.

Defendant contends that there was insufficient evidence to prove that he was driving outside the restrictions on his license. First, he argues that the officer’s testimony should be excluded as secondary evidence under the best evidence rule. He argues, without citing authority, that his driving record would be the best evidence of the restrictions on his license.

It is not clear to us that this is a case where the best evidence rule is applicable. Defendant’s driving record could be considered merely to record facts of essentially non-written transactions and testimony as to these facts is not generally considered to be within the scope of the rule. McCormick, Evidence 563-64, § 234 (2d ed Cleary 1954). Furthermore, even if applicable, the best evidence rule is not to be applied where the party invoking it does not challenge the accuracy of the secondary evidence offered. State v. White, 4 Or. App. 151, 156, 477 P.2d 917 (1970). Defendant does not contend that the officer’s testimony was inaccurate; therefore, “the mystical ideal of seeking

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‘the best evidence’ or the ‘original document’ will not be pursued.” State v. White, supra, 4 Or App at 156.

Defendant’s second contention, that there was insufficient evidence to convict without his driving record, is equally without merit. The officer’s testimony about the restrictions on defendant’s license was sufficient evidence from which the trier of fact could find that defendant was guilty of driving beyond the restriction.

Affirmed.

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