We allowed review to consider the recurring question whether the state may rely on a statutory presumption to prove a traffic violation. See State v. Clay, 332 Or. 327, 331 n 4, 29 P.3d 1101 (2001) (noting but not reaching various challenges to using presumption in ORS 810.439(1)(b) to prove traffic violations). On review, defendant advances three reasons why the trial court should have granted her motion to dismiss.
LANDAU, P.J. This case is before us on remand for reconsideration in light of State v. Clay, 332 Or. 327, 20 P.3d 1101 (2001). We originally affirmed without opinion a judgment of conviction for failure to register as a sex offender, ORS 181.599 (1997), rejecting defendant's contention that, among other things, the state failed to prove that he failed to register.
The burden of persuasion then shifts to the proponent of the evidence — the state, in this case — to rebut the claim of privilege by demonstrating that the communicating spouse did not intend the communication to be confidential. See State v. Clay, 332 Or 327, 332, 29 P3d 1011 (2001) (describing effect of presumption). Other authorities support the same presumption. See, e.g., Blau v. United States, 340 US 332, 333, 71 S Ct 301, 95 L Ed 2d 306 (1951) ("[M]arital communications are presumptively confidential."); Edward J. Imwinkelried, The New Wigmore: Privileges § 6.8, 671-72 (2002) (citing authorities recognizing presumption of confidentiality for spousal communications); 8 Wigmore, Evidence § 2336, 652 (1961) ("[A]ll marital communications should be presumed to be confidential until the contrary appears.").
The decision of the Court of Appeals is vacated. The case is remanded to the Court of Appeals for further consideration in light of State v. Clay, 332 Or. 327, 29 P.3d 1101 (2001).
Thus, consistently with the presumption that an "[o]fficial duty has been regularly performed," OEC 311(1)(j), the factfinder — here, the court — could presume that, had defendant reported at any point between October 2003 and January 2007, the official receiving that report would have forwarded the information to Laundry's office within three working days, where she would have received it. See also State v. Clay, 332 Or 327, 332-33, 29 P3d 1101 (2001) (determining "official duty" as a matter of law). Affirmed.
OEC 311(1)(j). As the Oregon Supreme Court explained in State v. Clay, 332 Or 327, 332-33, 29 P3d 1101 (2001), that presumption applies in situations in which an official is required to perform a duty, rather than merely having the discretionary authority to perform an act. Here, Articles III(a), III(b), and V(a) required Vickers to process defendant's request for final disposition made pursuant to Article III(a) in the event that a detainer had been lodged against defendant.
The state accordingly may use rebuttable presumptions to prove traffic violations. Cf. State v. Clay, 332 Or. 327, 333, 29 P.3d 1101 (2001) (applying rebuttable presumptions in a traffic violation case). Affirmed.
On appeal, he asserts that the trial court erred in concluding that he violated ORS 811.123 because no evidence was presented at trial that defendant was the registered owner of the car that was photographed exceeding the speed limit. The state concedes that reversal is required, because this case is factually indistinguishable from State v. Clay, 332 Or. 327, 29 P.3d 1101 (2001. We agree and accept the state's concession.
The IRS had no statutory duty to enter into the Disclosure Agreements and under them would have had no liability to the department for malfeasance or nonfeasance. Where authority exists, but not duty, the predicate fact required by OEC 311(1)(j) does not exist. State v. Clay, 332 Or 327, 332, 29 P3d 1101 (2001). Under section 9.1 of the Revised Agreement on Coordination of Tax Administration, which controls over any implementing agreement, either the IRS or the department may modify or terminate performance "whenever in the administration of Federal or State laws that action seems appropriate."