Those purposes include protecting "the right of the grand jury, not the prosecutor, ‘to determine whether a particular charge should be brought’ " and ensuring " ‘that the charge presented against a defendant was based on facts found by the grand jury.’ " State v. Long , 320 Or. 361, 370, 885 P.2d 696 (1994) (quoting Wimber , 315 Or. at 116, 843 P.2d 424 (Unis, J., dissenting)). When the state seeks to amend an indictment, it bears the burden of proving that the amendment is consistent with the grand jury's findings.

See OAR 735-010-0008(11) ("'DMV' means the Oregon Department of Transportation, Driver and Motor Vehicle Services Division."). At trial, defendant cited State v. Long, 320 Or. 361, 885 P.2d 696 (1994), cert den 514 U.S. 1087 (1995), and State v. Russell, 231 Or. 317, 372 P.2d 770 (1962). He argued that the variance between the allegation that he was suspended by DMV and the proof that he was suspended by a court was material and that he had a right under Article VII (Amended), section 5(3), of the Oregon Constitution, "to be tried only for the specific criminal act as to which the grand jury handed down the indictment."

Defendant stresses that to make a substantive amendment requires resubmitting the charge to the grand jury. See State v. Long , 320 Or. 361, 370 n. 14, 885 P.2d 696 (1994) ("If the error is of substance, the state may seek permission to resubmit the matter to the grand jury. If the error is of form only, the court may amend the indictment by interlineation.").

That provision has been interpreted to provide criminal defendants with the " ‘constitutional right to be tried only for the specific criminal act as to which the grand jury handed down the indictment.’ " State v. Guckert , 260 Or.App. 50, 57 n. 2, 316 P.3d 373 (2013), rev. den. , 354 Or. 840, 326 P.3d 77 (2014) (quoting State v. Long , 320 Or. 361, 370 n. 13, 885 P.2d 696 (1994), cert. den. , 514 U.S. 1087, 115 S.Ct. 1803, 131 L.Ed.2d 729 (1995) ). The state also contends that defendant either failed to preserve his claim of error or invited any error.

Such an amendment is permissible if it merely changes the form of the indictment; it will, however, violate Article VII (Amended), section 5, of the Oregon Constitution if it changes the substance of the indictment. State v. Wimber, 315 Or. 103, 113, 843 P.2d 424 (1992); State v. Long, 320 Or. 361, 370 n. 13, 885 P.2d 696 (1994), cert. den.,514 U.S. 1087, 115 S.Ct. 1803, 131 L.Ed.2d 729 (1995) (criminal defendant has constitutional right to be tried only for the specific criminal act in the indictment). Wimber, 315 Or. at 114–15, 843 P.2d 424, specifies several questions that are relevant to the determination of whether an amendment is one of form or substance. Two are relevant in the context of this case:

However, in the circumstances presented here, the application of those principles does not warrant reversal. See State v. Long, 320 Or. 361, 369, 885 P.2d 696 (1994), cert den 514 U.S. 1087 (1995); State v. Wells, 147 Or. App. 125, 131, 935 P.2d 447 (1997). Wells is closely analogous.

The second line of cases is closely related and addresses whether the state may permissibly present evidence or a theory at trial that varies from the factual proof presented to the grand jury that formed the basis for the allegations in the indictment. To determine if a variance in proof is permissible, we evaluate the two prongs identified in State v. Long , 320 Or. 361, 885 P.2d 696 (1994), cert. den. , 514 U.S. 1087, 115 S.Ct. 1803, 131 L.Ed.2d 729 (1995). Although defendant makes arguments under both Wimber and Long , because the state did not seek to amend the indictment, and the court did not allow any amendments, we follow the analysis set out in Long and its progeny, and do not undertake any analysis under Wimber .

In the absence of such evidence proving the grand jury's intent, we cannot conclude that the pleading error was a harmless defect in form. We note that the facts here are distinguishable from those of Delaney, State v. Long, 320 Or. 361, 885 P.2d 696 (1994), cert den 514 U.S. 1087, 115 S.Ct. 1803, 131 L.Ed.2d 729 (1995), and State v. Woodson, 315 Or. 314, 845 P.2d 203 (1993). In each of those cases the defendant challenged the adequacy of the indictment and, in each, the court noted the jurisdictional function of indictments.

In any event, we fail to discern any genuine basis for confusion, given that the indictment specifically noted that the violation involved ORS 163.427, which did not exist before August 6, 1991. Although expanding the dates beyond the range of those in the indictment may be disallowed, compare State v. Sohn, 107 Or. App. 147, 150, 810 P.2d 1337 (1991) with State v. Long, 320 Or. 361, 885 P.2d 696 (1994), cert den ___ US ___, 115 S Ct 1803, 131 L Ed 2d 729 (1995), the state's decision to specify a date that was within the range of dates charged was a permissible change in the form, not the substance, of the indictment. State v. Wimber, 315 Or. 103, 113-16, 843 P.2d 424 (1992) (amendment that shortens indictment's time period so that the offenses alleged fall within the applicable statute of limitations is a change in the form of an indictment).

Id . at 115, 843 P.2d 424. See also State v. Long , 320 Or. 361, 366, 368-69, 885 P.2d 696 (1994) (time not a material element; thus, trial court could correct error in indictment and instruct jury on the end date for the timeframe during which the crime allegedly occurred, even though the end date in the indictment was before the date of the incident). ORS 132.550 provides that an indictment must contain "substantially" the elements that it lists.