STATE v. HIBBS, 44 Or. App. 179 (1980)

605 P.2d 723

STATE OF OREGON, Respondent, v. KATHLEEN LOIS HIBBS, Appellant.

No. K29886, CA 15306Oregon Court of Appeals.Argued and submitted December 21, 1979
Affirmed January 28, 1980 Reconsideration denied March 6, 1980 Petition for review denied March 18, 1980 (288 Or. 45)

Appeal from District Court, Multnomah County.

Aaron Brown, Jr., Judge.

Marshall L. Amiton, Portland, argued the cause and filed the brief for appellant.

Page 180

Christian W. Van Dyke, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were James A. Redden, Attorney General, and Walter L. Barrie, Solicitor General, Salem.

Before Tanzer, Presiding Judge, and Thornton and Campbell, Judges.

TANZER, P. J.

Affirmed.

Page 181

TANZER, P. J.

Defendant appeals from her conviction for driving under the influence of intoxicants. She assigns as error the denial of her motion for judgment of acquittal on the ground that the uniform traffic citation alleged the infraction to have occurred on June 5, 1979, whereas the proof was that it occurred on May 5, 1979.

ORS 484.150(3)(c), 484.160(2) and 484.170(2) require that the citation state the date and time of the offense. The date of the offense not being an element of the infraction, it is not a material allegation. By analogy to criminal laws, we infer that the purpose of this pleading requirement is to enable the defendant to defend, to invoke the statute of limitations and to prevent successive adjudication. If a variance between a nonmaterial allegation and the proof does not affect the defense adversely, the variance is deemed non-material State v. Anderson, 241 Or. 18, 403 P.2d 778 (1965); State v. Hanson/Hughes, 14 Or. App. 586, 513 P.2d 1202 rev den (1973).

Here, there is no claim of mistake or surprise. Neither is there an alibi defense. No statute of limitations defense is asserted. As defense counsel candidly acknowledges, the mistake is utterly without prejudice to any right or interest of the defense. Therefore, the variance of the proof from the citation was not material and the motion for judgment of acquittal was properly denied.

Affirmed.

Page 182

[EDITORS’ NOTE: THIS PAGE IS BLANK.]

Page 183