FILED: June 8, 2001

STATE OF OREGON,

Respondent on Review,

v.

STEVEN GLEN FUGATE,

Petitioner on Review.

On review from the Court of Appeals.*

Argued and submitted October 14, 1999.

Peter Gartlan, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the brief were David E. Groom, Oregon Public Defender, Jesse Wm. Barton, Deputy Public Defender, Robin A. Jones, Deputy Public Defender, Anne Morrison, Deputy Public Defender, and Andy Simrin, Deputy Public Defender.

Kaye E. McDonald, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Carson, Chief Justice, and Gillette, Durham, Kulongoski, and Leeson, Justices.**

GILLETTE, J.

The decision of the Court of Appeals is reversed, and the case is remanded to the Court of Appeals for further proceedings.

* Appeal from Jackson County District Court, Rebecca G. Orf, Judge.
154 Or App 643, 963 P2d 686, modified and adhered to on recons 156 Or App 609, 969 P2d 395 (1998).

** Van Hoomissen, J., retired on December 31, 2000, and did not participate in the decision of the case; Riggs and De Muniz, JJ., did not participate in the consideration or decision of this case.

GILLETTE, J.

This is a criminal case in which defendant was charged with driving while under the influence of intoxicants (DUII). ORS 813.010. Defendant filed a pretrial motion to suppress any evidence of his impairment due to alcohol, arguing that any such evidence was obtained only because the arresting officer exceeded the permissible scope of the traffic stop that preceded defendant's arrest. See ORS 810.410(3)(b) (1995) (limiting scope of traffic stop). The trial court granted defendant's motion to suppress. On appeal, the state asserted, inter alia, that Oregon Laws 1997, chapter 313 (hereafter referred to as SB (Senate Bill) 936), which the 1997 Legislature enacted after the trial court's decision, applied to the case and required reversal of the trial court's order. Defendant, relying on various constitutional grounds, responded that SB 936 could not be applied to his case. A divided Court of Appeals, sitting en banc, disagreed with defendant, agreed with the state, and reversed the order of the trial court. State v. Fugate, 154 Or App 643, 963 P2d 686, modified and adhered to on recons 156 Or App 609, 969 P2d 395 (1998). We allowed defendant's petition for review. We now conclude that, although SB 936 is constitutional on its face, the part of SB 936 on which the state relies may not be applied retroactively to defendant's case. We therefore reverse the decision of the Court of Appeals and remand the case to that court to consider the state's remaining assignments of error.

We take our statement of facts from those found by the trial court. On February 11, 1996, (1) a police officer stopped the vehicle that defendant was driving because it did not have a license plate light and because a records check indicated that the driving privileges of the vehicle's registered owner were suspended. The officer asked for and obtained identification from defendant and his three passengers. A check revealed that there was an outstanding arrest warrant for one passenger. The officer went to speak to that passenger. While doing so, the officer saw a nylon pouch that he thought was a gun holster. He seized the pouch, which turned out to contain a spoon with white residue on it. The officer then ordered everyone out of the vehicle. It was at that point that the officer observed things about defendant's physical condition that led him to arrest defendant for DUII.

At a pretrial hearing on his motion to suppress evidence, defendant argued that the officer had expanded the stop of the vehicle that defendant had been driving beyond what was necessary to issue the pertinent traffic citation. Defendant reasoned that that expansion violated ORS 810.410(3)(b) (1995) (2) and that the evidence obtained against him therefore should be suppressed. See State v. Dominguez-Martinez, 321 Or 206, 895 P2d 306 (1995) (holding that evidence derived from violation of ORS 810.410(3)(b) must be suppressed). As noted, the trial court agreed. On February 27, 1997, the court entered an order suppressing the evidence.

The state appealed the trial court's order to the Court of Appeals. In that court, the state argued, inter alia, that suppression of evidence for violation of ORS 810.410(3)(b) (1995) no longer was appropriate because of the recent passage of SB 936. (3) Section 1 of SB 936, now ORS 136.432, provides:

"A court may not exclude relevant and otherwise admissible evidence in a criminal action on the grounds that it was obtained in violation of any statutory provision unless exclusion of the evidence is required by:

"(1) The United States Constitution or the Oregon Constitution;

"(2) The rules of evidence governing privileges and the admission of hearsay; or

"(3) The rights of the press."

Section 38 of SB 936 states that its provisions (other than those expressly specified) apply "to all criminal actions pending or commenced on or after December 5, 1996." Or Laws 1997, ch 313,