*1 February September reargued affirmed Argued and submitted 5, 1982 October OREGON, OF STATE review, Respondent on BUTTREY, JEAN DONNA review. Appellant on (Nos. C80-10-33782, CC78-424, 28155) A20616, SC
CA P2d 1075 Daugirda, Deputy argued John Defender, Salem, Public reargued appellant the cause for on review. With him Gary on the brief was Babcock, Defender, D. Public Salem. Frohnmayer, Attorney argued David General, Salem, B. reargued respondent the cause for on review. With him Gary, on the brief were William F. General, Solicitor Rudolph Attorney Westerband, S. General, Assistant *2 Salem.
PETERSON, J. dissenting opinion. Linde, J., filed PETERSON, J. Stroup, State
In
290 Or
Anticipating present we stated: stated, in previously “As a case which also suspended for ‘failure to defendant’s driver’s license was appear.’ Whether the same result would follow cases licenses which drivers’ whether in such cases the state would be are for other reasons and
required by due process part to offer evidence of constructive notice as a its case chief is not the court for decision in this before *3 case.” 290 at 202. Or
We noted: in “Defendant has not case that he is contended process require due denied a the failure of ORS 487.560to culpable support ‘driving a conviction for suspended,’ making while thus it a crime.”1 strict Id. at 202 n 14.
This is a case in which the defendant’s driver’s license was “other reasons” for one Stroup squarely referred to in and we are faced with the Stroup: “open” two questions 1 Stroup, 185, (1980), In State v. 290 Or 620 P2d we also observed: 1359 strongly language Supreme “Other Court related have cases on issues liability crimes, ‘public supporting constitutionality at least where of strict violations, offenses,’ involved. See Lambert welfare such traffic are States, 246, California, (1957); Morisette v. United 228 US 355 US 342 strong recognition n This in 262 and contrast origin presumption having law must have that crimes their the common Co., Gypsum v. United US See United States States mens rea element. (1978).” 436-38 290 Or 202. at prosecution driving suspended, 1. In a for require prove do statutes the state to state, i.e., defendant, at the time of the offense, had actual or constructive that her suspended? license had been
2. Was defendant denied Fourteenth Amendment process due either because she was convicted absent showing of mens rea or because ORS 482.560 unconstitu- tionally disproving shifts the burden of an element of the knowledge, crime, to the defendant? charged violating
The defendant was alleged: 487.560. The information defendant, “The 23, 1980, said on or about October County Multnomah, Oregon, unlawfully State of did feloniously and drive upon a motor highway vehicle premises open public other to the at a time when the said defendant’s license to drive a right motor vehicle and apply for a license to drive a motor vehicle in this state suspended by were the court and the Motor Vehicles Department Division of the Transportation and were revoked the Motor Department Vehicles Division of the Transportation, contrary to the Statutes such cases provided, made and against peace dignity Oregon.” the State of jury. The case was tried to the court without stipulated driving upon highway. that she copy suspending A order her driver’s license was during received in evidence. The occurred the sus- pension period. Appended order was a copy certificate that the order was correct and that the order “was mailed to the official address of record as recorded on the Motor Vehicles Division record.”2 provides mailing: ORS 482.570 division, required, suspends, “When the as authorized or revokes or right apply operate vehicles, *4 cancels a license or the for a license to motor give right shall notice of such action to the whose license or is affected. and, The notice shall state the nature and reason for the action in the case of a suspension, by whether it was ordered a court. Service of the notice is accomplished by by mailing delivery, either the notice certified mail restricted receipt requested, person’s records, return to the address as shown division
or, by personal service the same manner as a summons is served in an action at law.”
579 no in evidence and there was was offered receipt return No order itself and evidence, suspension than the other thereon, the defendant had received certificate The exhibit was received without notice objection.3 acquittal asserting
The defendant moved
“shifting
rea and that
no
of mens
there was
(set
below)
487.560(2)
uncon-
forth
burden” under ORS
denied the motion and found
The trial court
stitutional.
felony, stating:
of a class C
guilty
Plaintiff,
State,
I find that the
has
“THE COURT:
beyond
proven the elements of the offense
a reasonable
—
alleged
the date
driving
the Defendant on
on
doubt
County
and at a time
public street or road Multnomah
Defendant’s license
drive was
as a
when the
result of a conviction for
under
influence of
intoxicating liquor, and therefore I will find the Defendant
guilty
felony driving
suspended.”
suspended imposition
placed
The court
of sentence and
years’ probation
required
defendant on five
her to serve
affirmed
year
county jail.
Appeals
one
in the
The Court of
App
the conviction from the bench.
Or
A STATE IS NOT CULPABLE MENTAL DRIVING
AN ELEMENT OF
487.560
WHILE SUSPENDED. ORS
Historically,
liability
required
criminal
has
both an
past century,
In the
act and
state.
have
statutes which have
legislatures
passed numerous
liability unaccompanied
fault. Strict
imposed
difficulty
passed
statutes have been
because of the
intent,
proving
knowledge,
negligence,
recklessness or
that evil should be
legislative perception
and because of a
eradicated,
at the
blameless defen
convicting
even
risk of
Scott,
dants.
LaFave and A.
Handbook on Criminal
W.
(1972).
such statutes.4
Oregon
Law 218
has enacted
Harris,
(1980)
(certificate
State v.
288 Or
580 are three elements
The defendant claims there (1) suspended, driving of a the crime to vehicle (2) (3) upon highway, suspended license, a awith knowledge purposes For the of this opinion there we will assume that is no evidence that the had actual or constructive that her suspended. had been turns on an license analysis decision defining crime, of the statute ORS 487.560 (which part comprehensive in 1975 as of a was enacted reform), general provisions and in the motor vehicle code chapter Oregon 1971, 161. Criminal Code ORS Oregon Code was revised 1971. Criminal very and the were much The drafters aware of the law liability” “purposes” In “strict crimes. section 161.025(1)(d), purpose legislative code, ORS stated: 743,
“(1) Oregon general purposes chapter 1971, are: Laws * * * *
<<* accompany- “(d) act or omission and the To define the limit each and mental state constitute offense ing it is as criminal when without conduct condemnation fault.” sought a
The Criminal Code to create uniform system determining for offense classifications and requirements. Liability culpability Comment, See Strict and Criminal Sanctions: The Revisions to the Crim- Code, L Rev nn inal Willamette 366-67 provisions defining “culpable The mental Code includes a Criminal describing culpable state,” 161.085, when ORS proved, 161.095, 161.115, must mental state ORS ORS 161.085 and defines and ORS 161.105. ORS lists four culpable intentionally, knowingly, recklessly mental states — require negligence a form of and criminal which —each requirement to be aware as a awareness failure liability. criminal culpable required generally
A state is mental 161.095(2) provides: imposed. to be ORS “(2) 161.105, Except person provided in as ORS he guilty offense unless acts with element of material respect to each state with state.” culpable mental necessarily requires a offense 161.115(2) provides: ORS 161.105, if a statute “(2) Except provided in ORS culpable' prescribe
defining an offense does not required is established state, culpability is nonetheless recklessly intentionally, knowingly, only acts negligence.” with criminal referred, statute 161.105(l)(b), “exception” 161.095(2) 161.115(2), states:
to in ORS 161.095, culpable mental “(1) Notwithstanding ORS required if: state is not *6 by
“(b) a statute outside An defined offense clearly legislative intent indicates a Oregon Code Criminal requirement for any culpable mental state dispense with to any element thereof.” for material the offense or which the defendant statute under 487.560, outside the convicted, ORS charged was provided: It Criminal Code.
“(1) crime while A commits the upon highway suspended if vehicle he drives a motor permit to drive a motor during period when his license or apply a license to drive a motor right vehicle his for or by by suspended a court or vehicle in this state has been by if he the division or drives the division or revoked a license issued vehicle outside the restrictions of motor under ORS 482.475 or 482.477. (1)
“(2) of this prosecution In under subsection section, an affirmative defense that: it is human
“(a) injury to injury An or immediate threat of made it urgency of the circumstances animal life and the or vehicle at the necessary the defendant to drive a motor for place question; in or time and his
“(b) notice of had not received The defendant in required by 482.570 or suspension or revocation as (3) (c) of subsection provided paragraph the manner section. (b) paragraph “(3) under The affirmative defense (2) not be available to section shall subsection of this if: receipt sign a for “(a) refused to The defendant notice; containing or certified mail “(b) The notice could not be delivered to the defen- dant because he had not notified the division of his address change required by (3) or a his residence ás subsection 482.290; or “(c) previous appearance, At a court the defendant had judge judge been informed a trial that the ordering was license, permit right of the defendant’s apply; or
“(d) The defendant had actual of the sus- pension any prior or revocation means to the time he stopped charge. on the current
“(4) Any (3) specified of the evidence in subsection may prosecution’s this section be offered in the case chief. “(5) Except provided (6) in subsection of this sec-
tion, driving suspended while or revoked is a Class A misdemeanor. “(6) Driving or revoked is a Class C * * *
felony if the or revocation was the result any following a conviction for offenses: <<* * * * *
“(f) Driving while under the influence of intoxicants.”
Although parties agree that ORS 487.560 is “an offense defined a statute outside the Criminal they agree “clearly Code,” do not that the statute indicates any legislative dispense a state intent requirement for the offense material ele- *7 language ment thereof.” Our conclusion is that the of ORS clearly legislative a intent dis- 487.560 itself indicates requirement, pense culpable a mental and the with state beyond legislative history puts question. the matter key provisions, question The insofar as the before (2) (3). (1), concerned, us is are subsections and Subsection (1) Driving defines the crime. Two elements are stated. a upon highway. period During motor vehicle a when the (1) suspended. pre- license has been Subsection does not culpable suggests scribe a state, mental but that if the two proof shown, elements are of those elements alone is suffici- (1), by “clearly ent to itself, convict. Subsection does not legislative dispense any culpable [indicate] intent to requirement.” dispelled, by however, Doubt is (2) possible (2) lists two Subsection subsections of evils defenses,” nature of a choice one in the “affirmative (2)(a), relating the lack of the other defense,' section (2)(b). suspension, receipt section of notice defined in the defense” is term “affirmative Criminal Code as follows: defense, defense’ be an ‘affirmative “When a declared to trial, at a the
by chapter Oregon Laws is raised by a proving the defense has the burden of 161.055(2). preponderance ORS of the evidence.” legislative The state makes intent is clear: upon proof prima in ORS elements of the two facie case 487.560(1), proof state, i.e., without by any knowledge the the defendant of without by can avoid The defendant license establishing by preponderance defense the affirmative 161.055(2). turn, avoid state, can the evidence. ORS by defense afforded ORS the effect of the notice 487.560(2)(b) beyond any by establishing doubt reasonable receipt sign a for the cer- that the defendant “refused to tified mail 487.560(3)(a), containing notice,” or ORS * * * he “[t]he notice could not be delivered because change in had not the division of his address or a notified (3) by required his of ORS residence as subsection 487.560(3)(b), 482.290,”5 the defendant had ORS judge ordering judge been informed a trial that the 487.560(3)(c), license, ORS or that suspension, ORS defendant had actual 487.560(3)(d). (3) (1), (2) 487.560, con- Subsections 161.055(2) (which together sidered affirmative defines with ORS defense), procedure set forth a for the blameless clearly indi- defendant to establish a defense. The statutes state, its intended that cate that 482.290(3) provides: “(3) operator-chauffeurs operators under or combined Persons licensed as notify any change chapter of residence from shall division of given mail Notice shall be noted on their license as issued the division. change. days The notice shall within 30 after the date of address and the number indicate the old and new residence written and shall notice, Upon receiving note the the division shall of the license held. * * *” change of address on its records. *8 584 prove any culpable chief, state,
case need not but might the defendant avoid conviction for conduct by establishing which is otherwise criminal one of the 487.560(2)(b).6 defenses enumerated in ORS As discussed required prove below, if the state is (2)(b) state as an crime, element of the then subsections (3)(d) surplusage. and of the statute are legislative history analysis. confirms this It legislature reveals that the was concerned with a massive problem. Suspended dangerous social drivers constituted a causing carnage highway drivers, class of on the and clogged legislature courts. Prosecutions were difficult. The unnecessary believed this class of drivers caused suffering danger. dispropor- constituted, human class, as a tionate was so concerned with the property risk to that wanted to make certain punishable crime, conduct aas without fault. Project Paillette,
Donald
Director of
Interim
Judiciary,
Judiciary
Committee on
testified at a House
May
meeting
5,
Committee
on
1975. The Minutes summa-
testimony
rize his
as follows:
existing
covering driving
“The
statute
* *
repealed
*.
changes
would be
One of the
made was with
respect
question
to the
of whether
the defendant knew of
his
Proof that he knew of his
would
not be an element of the offense but
failure to receive
notice would be an affirmative defense which would shift
the burden to the defendant
to establish the defense
Minutes,
preponderance of the evidence.”
House Commit-
May 5, 1975,
Judiciary,
tee
at 2.
on
Stroup,
185, 195,
In State v.
290 Or
“
put
section
being
forth
‘What
*9
long
so
as there has been
going
burden is
to be shifted
suspension
there
that
the defendant
showing that
is a
suspended
he was
question
in
at a
when
time
Minutes,
Judiciary,
Committee on
Jan-
or
Senate
revoked.’
uary 23,
page 5.
legislature
the
supports
the conclusion
that
“This
only prove
that
the
need
intended
state
proof
suspended,
intent
of
rather than an
that
driving while
by
in
state
its case
mailing must also be shown
the
n
chief.”
The statute and legislature with the societal the was so concerned by injury operation arising drivers of automobiles the to had intended whose licenses been require liability crime, create no ever, a crime which a strict would knowledge the How- as an element of offense. of potential to to ameliorate the unfairness a driver who by required had the not received notice of as 482.570, ORS or had not received notice in the manner who 487.560(3)(c), provided legislature the allowed such ORS to establish a limited defense of lack of notice. defendant could But the limited defense was unavailable the state “by any means,” defendant, the actual establish that had 487.560(3)(d). legis- suspension. knowledge The ORS lature intended that liability only the defendant could avoid criminal prove notice,
if he could lack as or she of (2)(b), provided by subsection and that even that limited exception if the had would not be available defendant 487.560(3)(d). knowledge suspension. actual of ORS the very creating dissent would hold that the action of affirmative defense 161.055(2) (which, upon upon imposes based of under the a lack notice ORS evidence”) preponderance proving defense the defendant “the burden of the of prove opposite element the must creates an result —the creation of third state doubt, beyond legislature part Although a reasonable as of its case chief. the sought generally “limit as when it the condemnation of conduct fault,” 161.025(l)(d), legislature power reserved to make without the the fault, criminally punishable, by expressly providing for offenses conduct absent punishable as without Code which were crimes outside the Criminal state, 161.105(l)(b). showing knew the of types being the crimes that created. difference between were knowledge
The dissenters assert that the suspen- crime; sion is an element of the the can defendant establish a defense if can prove he she that he or she had notice; proper not received and that the driver loses this affirmative proves defense if that he or had she If, knowledge dissent, as claimed knowledge crime, some form is an element then subsections, (2)(b) application 3(d), the notice circuity. in a analysis results Under the dissenters’ the state prove have part would its case-in-chief. If the defendant could establish either of the limited notice permitted (2)(b), defenses under subsection he she could (under acquitted unless the state established subsection (3)(d)) very already fact proved by state —that “had knowledge suspension.” very prove (1) evidence offered the state to its case would also disprove the defendant’s evidence offered support (2)(b) (2) affirmative defense and establish the state’s (3)(d) rebuttal to the defendant’s affirmative defense. The *10 fallacy analysis of the is apparent. dissent’s could not very have intended that the of the element knowledge would at the same time disestablish the (2)(b) affirmative defense referred to in subsection (3)(d) the establish existence of subsection If knowledge.8 knowledge proved, provisions, need be then the notice (2)(b) (3)(d), subsections are surplusage. legisla- ture intended that the statute effect as it was given written. legislative history clearly 487.560 and the a legislative dispense any require-
indicate intent with that a ment mental state be shown. The defendant properly turn, was convicted under Oregon law. We there- fore, the claim statutory imposition defendant’s that give jury, Consider the which instructions the trial court would if the (The example greatly dissent is correct. instructions in this are shortened to point.) illustrate the prove, beyond any doubt, “The must reasonable that knowledge
had of the license proves, by preponderance evidence, “But if the defendant she required by had received notice of the ORS 482.570 or provided 487.560(3)(c), you acquitted manner she should be unless find, any beyond doubt, knowledge reasonable defendant had of the suspension.” license suspen- nonreceipt proving of the notice the burden the Fourteenth Clause of Due Process violates sion Amendment. THE DUE PRO- NOT VIOLATE DOES
ORS 487.560 AMENDMENT OF THE FOURTEENTH CLAUSE CESS con Amendment makes two Fourteenth Defendant 225, California, 355 US First, cites Lambert she tentions. (1957), asserting “as a 2d 228 240, 2 L Ed 78 S Ct * * * proof process is a neces matter of due sary Lambert, held that In the court the crime.” element of city alia, a crime for which, inter made it ordinance Angeles for more in Los to be or remain felon convicted depart police days registering without than five Amendment. The ment, opinion invalid under the Fourteenth holding, explanation and other of the little contains opinions, Supreme are referred some of which Court holding limited to the facts below, make it clear that the presented. there apply- Supreme States, Court United generally
ing constitution, refused to inter- the federal has power the historical state to create strict fere with crimes.
“* * * reus, rea, insanity, The doctrines of actus mens mistake, historically provided justification, and duress have constantly adjustment of the tension shifting the tools for changing evolving the criminal law and between the aims of moral, philosophical, and medical view of religious, always adjustment has been process man. This nature of Texas, province States.” Powell v. thought to be the 1254, 2145, L 2d 88 S Ct Ed 392 US (1968) (plurality opinion).
«* * * rpjjg
always
legislatures
been allowed wide
have
culpability
the extent
to which moral
freedom to determine
*11
* * *” Id.
prerequisite
of a crime.
should be a
to conviction
(Black, J.,
545,
concurring).
L
1274
US at
20 Ed 2d at
392
301,
L
Balint,
250, 42 S Ct
66
258 US
See United States
(1922)
selling
(affirming
narcotics
for
conviction
Ed 604
selling
they were
defendants knew
no evidence that
narcotics);
Dotterweich,
277, 64 S
320 US
States v.
United
ship
(1943) (affirming
for
conviction
134,
L Ed 48
Ct
88
showing
drugs
ping
absent
and adulterated
misbranded
intentionally
negligently engaged
pro-
that he
in the
conduct).
361 US
147,
See
v. California,
scribed
also Smith
80 S Ct
150,
215,
205,
(1959).
4 L Ed 2d
Other
post-Lambert
upheld
upon
decisions have
convictions based
Freed,
401 US
liability statutes.
In
States v.
strict
United
1112,
S
601,
(1971),
91 Ct
In the court indicated that Lam- Texaco, application 'bert’s had “limited.” In Inc. v. been Short, 454 US 102 S Ct 516, 781, 738, (1982), 70 L Ed 2d the court stated:
«** *
necessary
Lambert concerns the mens rea that is
may
before the State
convict an individual of crime. See
Freed,
601,
356,
L
United States v
401 US
28 Ed 2d
91 S
1112;
Ct
United States
&
v. International Minerals Chem-
558,
178,
Corp.,
ical
application
L
402 US
29 Ed 2d
strong
precedents
derelict on the waters of the law.’
—a
232,
228,
2 L
Ed 2d
Given the legislative power create crimes in Powell, shown, which a mental state need not be Dotterweich, Smith, and Balint indicate that the creation of liability criminal strict for is con- stitutionally permitted.9 among There is considerable criticism of strict crimes commentators. Hall, Principles (2d 1960); Hall, Negligent See J. General of Criminal Law ed Liability, (1963); Behavior Should Be Excluded Hart, Penal 63 Colum L Rev 632 Law, (1958); Contemp The Aims the Criminal 23 Law & Probs 401 Unconstitutionality Liability Argu Hippard, The Fault: An Criminal Without Rea, (1973); ment L Constitutional Doctrine Mens 10 Hous Rev 1039 Packer, Packer, Beyond, (1963); The Model Penal Code and L 63 Colum Rev 594 Court, 107; Supreme Sup Sayre,
Mens Rea and the Ct Rev Public Welfare (1933); Clear, Realistic, Offenses, Stuart, Codify L The Need 33 Colum Rev 55 To Negligence, and Honest Measures Mens Rea and 15 Crim L 160Q *12 con- Amendment Fourteenth second Defendant’s of provisions defense that the affirmative tention is to her the burden (b) unconstitutionally shift 487.560(2) defense, an element her affirmative part of produce, shifting of not involve the case does case. This the state’s above, crime, we held for as any element of the proof of of the crime. is not an element a similar claim. rejected court Stroup, supra, In this State ‘where constructive farther contends that “Defendant shifting the process, required as a matter of due is notice defendant is uncon- proof on that issue to the burden of * * stitutional,’ *. a* * * * * * * * case, process argument due
“In this
defendant’s
notice’
dependent upon
that ‘constructive
a determination
was an
suspending
driver’s license
the order
defendant’s
element,’
proof
shifting the burden of
on
‘essential
then
disprove
by requiring him to
issue to defendant
* * *”
199-200.
290 Or at
‘notice’would be unconstitutional.
York,
Ct
v. New
432 US
97 S
Quoting from Patterson
(1977),
stated:
2319,
regulate procedures under which its
the burden
including
producing
burden of
evidence and
subject
regard
persuasion,” and its decision
not
unless “it
proscription
the Due Process Clause
under
principle
justice
rooted
the traditions
offends some
so
people
as fundamen-
as to be ranked
and conscience of our
’
201-202)
(432
(Citations omitted)
US at
tal.”
in Patterson
Supreme
also made it clear
“The
Court
certain
provides that
of a
just because a statute
defense, it does not follow
an affirmative
fact constitutes
with the
an element of the crime
those facts are
* * *”
Linde, J., opinion filed a in which dissenting J., Roberts, J., joined. C.
LINDE, J., dissenting. legislature holds that the majority Oregon
The an of a who drives a motor vehicle on made a felon her license to do so has been highway when his or Oregon suspension of the suspended, whether the driver knows Buttrey majority, to the if unknown Mrs. According not. suspended or in the Motor Vehicles Division someone error, license, by an she nev- revoked her driver’s even prison send her to a engaged might ertheless in a crime that faith that she had good her car in the belief she drove valid license. thing. legislature did no such The legislature
The of rearranged It the burdens something very did different: had trial whether the driver subsequent in a litigating The do suspension. knew of the statutes notice or otherwise is not knowledge suspension driver’s of the say the car, the actually she drives guilt to her at the time material crime is committed. alleged in words when the other make the act at trial does not rearrangement of the burden a crime that involves circumstances of under such in committed state, a crime that is no suspension. Yet this is what of a license ignorance us would have believe. majority presumptions proof, defenses and of burden of affirmative On the matter Assumptions, Presumptions, context, Risinger, see Ashford process & a due Overview, (1969); L 165 Cases: A Theoretical 79 Yale J Due Process Criminal Study Legal Comparative A Fletcher, Rules: Two Kinds Burden-of-Persua of of Cases, (1968); Note, L sion Practices in Criminal 77 Yale J 880 Affirmative Constitutionality Placing Burden Persua and Due Process: Defenses Defendant, L sion on a Criminal 64 Geo J questions: two different
It is crucial not to confuse is element one, knowledge whether other, commission, and the of its the crime at the time proof at element of the state’s is an whether to elaborate opinion goes majority time of trial. The to free the intended legislature to show that lengths that a defendant knew having prove from prosecution misdirected; it is not is The demonstration itself from that the state wished to free disputed prosecutions “driving suspended” burden making to shift the burden persuaded the notify defendant an affirmative defense. failure to only retaining ignorance issue what words, defense, element of retaining in other material driving, application means for the knowledge at the time 1971 and its constitu- Criminal Code of tionality. code took recognizes,
As the the 1971 majority principle great pains spell out its commitment should not guilt penalties that criminal and serious entirely imposed for conduct free its blameworthy expressly state. The code states accompany- purpose to define the act or omission “and the ing mental that constitute each offense and limit as criminal when it is without condemnation conduct *14 161.025(l)(d). report Oregon fault.” Crimi- ORS 1970) (July at page nal Law Revision Commission culpability respect provisions: stated with is the “Perhaps single part basic of the Code the most part . . . culpability of it. in Code
“The Commission follows the Model Penal liability” policy of expressing a adverse to use “strict law, a concepts in the carries criminal whenever offense possibility imprisonment. sentence of by only position
“This defined relates not offenses itself, body of state code but covers entire the criminal law, penal are involved.”1 so far as sanctions report with this reference to the Model Penal Code: continues commentators, “As the Model Penal in the absence of noted Code culpability, law neither nor nor an minimal has a deterrent corrective perform. They approach by stating: incapacitative support function to this policy strict against liability This crimes was in enacted exceptionally systematic provisions explicit of the crim- code, inal object ORS 161.095-161.115. Their was to limit criminal to those with a men- culpable offenses committed state, culpability tal and to reduce misconduct without level of noncriminal “violations” which would be fines punishable only by require culpa- and which would a only prescribed.2 ble mental state if a statute so The code however, recognized, that the legislature might expressly provide liability many strict for some among the penalty offenses provisions created outside statutes It provided code. therefore in ORS 161.105(1)(b) exception for an the policies prescribed “ undoubtedly argued argument repeated, ‘It has been will be liability necessary for in a absolute enforcement number of areas where it practical litigate obtains. But culpability if enforcement cannot undertake to requirements, alleged legal derivation from we do see how the rightly penal purpose. enforcers can the use demand sanctions for the Crime pass does and should mean condemnation and no court should have to
judgment wrong. declare unless it can that the defendant’s act was This is too compromised. goes enough permits fundamental imposition to be The law far monetary penalty liability in a cases where strict has been (Tent. imposed.’ (1955)).” No. at Draft Certainly policy is more consonant than strict with the command that reformation,” I, principles criminal laws “shall be on the § founded Or art Const 15. 161.095(2) provides: ORS “Except provided 161.105, person guilty in as ORS is not an offense culpable respect he
unless acts with a mental state with to each material necessarily requires culpable element offense state.” provides part: ORS 161.105 “(1) Notwithstanding 161.095, culpable ORS is not
required if: “(a) violation, culpable offense constitutes unless a mental state is expressly offense; included the definition of the “(2) law, Notwithstanding existing other and unless a statute enacted January 1, 1972, provides, after otherwise an offense defined statute requires outside Criminal Code that no mental state constitutes violation.” 161.115, here, provides: so far as relevant “(2) 161.105, Except provided defining if a statute offense *15 prescribe culpable state, culpability required not does a mental is nonetheless only intentionally, recklessly knowingly, and is established a acts or negligence.” with criminal offense defined “[a]n and 161.115 when 161.095 ORS clearly indi- Criminal Code a outside the statute dispense any culpable legislative with intent to cates a any requirement for material the offense for mental state exception It this that the state invokes thereof.” is element here. things provision noted about this
Two should be policy against overriding strong strict the code’s requires dispense legislative First, a intent to with crimes. any it culpability committing requirement of the crime in 161.105(l)(b) question. requirement refers a to such offense,” offense.” It refers to “for the not “for guilt, procedure. not of It is at the time of the elements of the accused’s act that an offense either does does not require culpable state, not at the time trial. (b) 161.105(1) requires legislative Second, ORS that in dispense any culpability making guilty intent to with one “clearly” of a crime must be indicated. It is to not implied. statutory presumption against such an genuine intent. If the liability means to create a strict merely lighten crime, not the state’s burden of say proof, “clearly.” it needs to so If the statute outside the clearly dispense culpable criminal code does not with defining offense, mental quences one of two conse- either follows: offense constitutes violation 161.105(2), or if a statute after virtue enacted January 1, 1972, crime, it makes the offense then nev- requires culpable ertheless mental state virtue of ORS 161.115(2). principles purposes of con-
Those are the respect prescribed by code with struction culpability. principles, purposes light of these In clearly legislative intent show a does ORS 487.560 dispense requiring culpable mental state for crimi- with guilt license has been nal when one’s or revoked? say majority dis- cannot that ORS 487.560 many requirement
penses words, in so because opinion merely notes that the statute does does not. So the prescribe expressly state. That alone exactly proves nothing, the situation for because this pre- *16 code, sections, of the the cited which the authors requirement the is scribed unless offense to be such violation. noncriminal majority opinion
Next the turns to the fact that (2)(b) provides subsection of ORS an 487.560 affirmative if defense the defendant had not received notice of the suspension license or revocation either in a court appearance by prescribed or certified mail as in the Motor (3) nega- Vehicle Code.3 the statute, turn, Subsection tes this affirmative defense if the state can show that the knowledge suspen- defendant nevertheless had actual prevented delivery sion or revocation or had notice the himself supporting it. But far from the conclusion that knowledge guilt “driving is immaterial while sus- pended,” provisions these contradict it. legislature
First, what made an affirmative 2(b) showing defense in subsection is a that defendant had proper not received notice. It not the is defendant’s lack knowledge. Second, however, actual the driver loses this guilt affirmative defense and his is established if the state proves suspended. that he knew that his license was
Why
legislature
would
establish
elaborate
scheme of affirmative defense and
rebuttal
the driver’s
knowledge
of the license
at the time of the
alleged
guilt?
offense is immaterial
to his
The obvious
legislature
answer is that it
would
do so. The
did not
prescribes:
ORS 482.5V0
division,
required, suspends,
“When the
as
or
authorized
revokes
vehicles,
right
apply
operate
cancels a license or the
license
for a
motor
it
give
right
shall
notice of such action to the
whose iicense or
is affected.
and,
shall
The notice
state the nature and
for the
reason
action
the case of a
suspension,
by
whether it
ordered
court. Service of the
is
notice
by
accomplished
by mailing
delivery,
either
the notice
certified mail restricted
receipt requested,
records,
person’s
by
return
as
address
shown
division
or, by personal
in the same
is
service
manner
a .summons
served in
law.”
action at
code,
Code,
In the
unlike the Model Penal
an affirmative defense must
proved
by
161.055(2).
preponderance
the defendant
of the evidence. ORS
Compare
112(2)(a),
provides
Model
§
Penal Code
when
which
that
there
supporting
(whether presented by
prosecution
evidence
an affirmative defense
defendant)
prosecution
disproving
carries the burden of
the defense
beyond
4)
(Tentative
a reasonable doubt. See Model
Code §
Penal
1.13
Draft No.
commentary.
at 110 for
guilt.
knowledge
It
to his
immaterial
driver’s
consider the
showing his
burden of
to shoulder the
wanted the accused
prov-
thereby
knowledge,
blamelessness,
his
lack of
though
suspension,
ing
he was not notified of
apart
he knew of the
defense would fail if
Proper
is not itself
driver
notification of the
official notice.4
offense,
in State v.
held
an element of
Stroup,
and we so
The reason for
Or
The state and the with a “massive social that the wished to deal controlling problem” dangerous *17 licenses of drivers whose suspended. doubt, is but it does not had been That not in question legislature so decided to do answer the whether the by convicting persons by shifting nonculpable by culpability proving driver the burden to show lack of Despite legislative failure of notice. history, all the assertions about by only quoted the the relevant statement state by majority opinion, the that of Mr. Paillette to the House Judiciary say knowledge Committee, did not that a driver’s suspension element the offense. of his license was not an of explained proof knowledge It This that of it does not was not element. ambiguity
merely resolve, identifies, the “clearly” a decision to which renders ORS 487.560 less than liability a create strict offense. 4 part majority says knowledge of defendant’s remains that evidence of case, “circuity.” (3)(b) is a The answer
the state’s affirmative subsection becomes innocence; placing (3)(b) knowledge guilt it to that shows that remains relevant procedurally the has lack of notification after rather than before shown manipulate merely did was to demonstrates that what the drafters of ORS 487.560 proof, crime. the of not to create a strict order why explanation of lack was unable to offer this court other state knowledge is proper if the driver’s be a defense notice of the should maybe acquittals proper guilt, except suggestion for lack of that immaterial to his encourage give such notice. Vehicles Division to notice were meant to the Motor is, by completely suggestion the that the contradicted fact as this it is Unrealistic proof guilt letting of actual the establish statute continues policing nothing irrespective effective do with of defective notice. This has by the Vehicles Division. notice Motor majority opinion emphasizes the intent of the free
legislature to
the state
burden of
that
proving
the driver was
that
longer
aware
he or she no
had a valid
license to
An
proof
do so.
intent
to shift the burden of
does
bring
exception
statute within
161.105(l)(b)
so
escape
principles
culpability
as to
161.115(2).
stated
ORS 161.095
If
intended shift
effective,
were otherwise
it would raise serious
questions
process
due
to make a defendant
disprove mental element
that
to guilt
remains material
of the
offense. But
is our
obligation
interpreting
to avoid
way
statutes
that
v.
creates
State
serious doubts
their
constitutionality.
Blake,
292 Or
P2d
Tharalson
State
(1982);
Revenue,
Department
9, 13,
281 Or
Much is stake here than a technical ing principle of statutes. that no one who innocent blameworthy punished conduct should be for a serious crime is central to modern expressly law. It in the recognized Oregon Criminal of 1971. The Code legislature did not principle guilt abandon this familiar “driving ORS 487.560 and make while suspended” crime even without knowledge laws,
There is a great temptation drafting as elsewhere, try to to achieve at incompatible goals two the state’s is to meet temptation time. Here same licenses drivers with difficulty prosecuting knowledge prove a driver’s having from to freeing the state depend on guilt to make continuing suspension, proper notification knowledge driver’s actual otherwise. ways. Perhaps, it both
But the state cannot have say choice, might induced to legislature it to a came in reliance becomes a felon when she drives I which, her, suspended. unknown to has been on license what any event, it. In that was not am inclined to doubt 487.560, enacting to for in ORS were asked vote legislators offered says. They it were is not what that statute proof. by shifting the choice the burden way escape decides to create a crime without When the element, unam- it must make that decision 161.105(l)(b), appro- “clearly,” biguously 161.115(2), supplied, ORS priate mental element must be by no punishable unless the offense is be a violation fine, 161.105(l)(a). “clearly” Far more than an element of with the driver’s dispensing (2)(b) it in guilt, ORS 487.560 reaffirmed subsections by noti- suspended, license is Knowledge that one’s otherwise, guilt thus remains material fication or suspended,” and the case should have been “driving while not, the conviction should be accordingly. tried As was reversed.
Lent, Roberts, join dissenting C. J. and J. in this opinion.