Defendant was convicted, after a trial to the court on stipulated facts, of failure to perform the duties of a driver toward injured persons. ORS 811.705. On appeal, defendant asserts that the trial court erred in its pretrial ruling that the state was not required to prove that defendant knew that a person wаs injured in an accident from which he left the scene. We affirm.
Defendant, while driving his car, turned left in front of an approaching motorcycle. Defendant struck the side of the motorcycle, hitting the driver’s foot. The driver was able to maintain her balance and did not fall or lose control of the motorсycle. Defendant completed his turn and drove off. Witnesses to the accident saw the saddle bag of the motorcycle fly into the air, and one witness reported the license number of defendant’s car. Police located defendant, who initially denied that he was involved in an accident. Defendant then admitted that he had struck a motorcycle, explaining that he drove off because he knew the accident was his fault and that he did not want to get a citation. Defendant claimed that he did not know that the driver of the motorcycle was injured. However, the driver suffered an injury to her foot, causing her to walk with a limp.
Defendant was charged with violating ORS 811.705. The indictment alleged, in part:
“The defendant, on or about July 28, 2007, in Jackson County, Oregon, being the driver of a vehicle being operated on the highway, which vehicle was involved in an accident that resulted in physical injury to [the victim], did unlawfully and knowingly fail to immediately stop the vehicle at the scene of the accident or as close thereto as possible and remain at the scene.”
Before trial, defendant sought a jury instruction to the effect that, in order to convict him, the state was required to prove that defendant knew that the victim was injured in the аccident. The trial court rejected the instruction, whereupon defendant waived jury, was tried to the court on stipulated facts, and was convicted. Defendant now appeals, assigning error to the trial court’s pretrial ruling, reiterating the arguments that he made before the trial court.
*75 ORS 811.705(1) provides:
“A person сommits the offense of failure to perform the duties of a driver to injured persons if the person is the driver of any vehicle involved in an accident that results in injury or death to any person and does not do all of the following:
“(a) Immediately stop the vehicle at the scene of the accident оr as close thereto as possible. Every stop required under this paragraph shall be made without obstructing traffic more than is necessary.
“(b) Remain at the scene of the accident until the driver has fulfilled all of the requirements under this subsection.
“(c) Give to the other driver or surviving passenger or any persоn not a passenger who is injured as a result of the accident the name and address of the driver and the registration number of the vehicle that the driver is driving and the name and address of any other occupants of the vehicle.
“(d) Upon request and if available, exhibit and give to the persons injured or to the occupant of or person attending any vehicle damaged the number of any document issued as official evidence of a grant of driving privileges.
“(e) Render to any person injured in the accident reasonable assistance, including the conveying or the making of arrangements for the conveying of such person to a physician, surgeon or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such conveying is requested by any injured person.
“(f) Remain at the scene of an accident until a police officer has arrived and has reсeived the required information, if all persons required to be given information under paragraph (c) of this subsection are killed in the accident or are unconscious or otherwise incapable of receiving the information. The requirement of this paragraph to remain at the scene оf an accident until a police officer arrives does not apply to a driver who needs immediate medical care, who needs to leave the scene in order to secure medical care for another person injured in the accident or who needs to leave the sсene in order to report the accident to the authorities, so long as the driver who leaves takes reasonable *76 steps to return to the scene or to contact the nearest police agency.”
Defendant acknowledges that, in
State v. Burns,
In Burns, the defendant argued that the indictment was inadequate because it did not allege that he knew that thеre were injuries resulting from the accident, or even that he knew such injuries were likely. We noted:
“Although the statute itself does not specify any particular mental state, we have held that the state must establish that the defendant acted knowing that he had been in an accident that was likely to have resulted in injury or death.’ State v. Van Walchren,112 Or App 240 , 245,828 P2d 1044 , rev den,314 Or 574 (1992); see also State v. Hval,174 Or App 164 , 171,25 P3d 958 (2001) (citing Van Walchren for the proposition that state must prove defendant acted knowing that accident resulted in injury).”
Burns,
“The indictment in this case alleged that defendant ‘was involved in an accident that resulted in physiсal injury * * * and did unlawfully and knowingly fail to remain at the scene of the accident.’ That allegation tracks the language of the statute and the case law construing it. It is not so inscrutable as to wholly fail to state an offense. To the contrary, the wording is more than adequate to ‘enable a person of common understanding to know what is intended.’
[State
v.]
Wimber,
315 Or [103,] 109[,
Burns,
In
State v. Rutley,
ORS 811.705 is outside the criminal code. Accordingly, we first cоnsider whether the statute demonstrates a legislative intent to dispense with any culpable mental state. The statute is silent as to whether a culpable mental state applies to any element of the offense. However, statutory silence alone is not a sufficiently clear indication of legislative intent to dispense with a culpable mental state, and we determine the legislature’s intent by examining the offense or element of the offense and a variety of indicators of legislative intent to determine whether the legislature would have had an obvious reason or reasons to omit a сulpable mental state.
Rutley,
We turn, then, to the effect of ORS 161.095(2) and ORS 161.115(1) on the analysis. ORS 161.095(2) provides that, “[e]xcept as provided in ORS 161.105, a person is not guilty of an offense unless the person acts with a culpable *79 mental state with respect to each material element of the offense thаt necessarily requires a culpable mental state.” ORS 161.105(1) provides, in part:
“Notwithstanding ORS 161.095, a culpable mental state is not required if:
# * * *
“(b) An offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offensе or for any material element thereof.”
In turn, ORS 161.115(2) provides that, “[e]xcept as provided in ORS 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligencе.’ ”
Because ORS 811.705 does not prescribe a culpable mental state, nor does it dispense with one, ORS 161.095(2) and ORS 161.115(2) are the controlling statutes. As previously discussed, it is illogical, in light of the evident legislative purposes underlying ORS 811.705, to conclude that the legislature did not intend to require a defendant to have some culpable mental state with respect to whether a person was injured in the accident. The question reduces to what mental state is required. In
State v. Monroe,
“ORS 811.700(l)(a) does not show a legislative intent to dispense with a culpable mental state, ORS 161.105(1), so the appropriate mental state is described in ORS 161.115(2):
“ ‘Except as provided in ORS 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence.”
Monroe,
In
Van Walchren,
we concluded that “[t]he same analysis applies under ORS 811.705(1). If a person knows
*80
that he has been in an accident, culpability for failure to perform the duties of a driver is established if the person acts intentionally, knowingly, recklеssly or with criminal negligence. ORS 161.105(1); ORS 161.115(2).”
Val Walchren,
“ ‘Criminal negligence’ or ‘criminally negligent,’ when used with respect to a result or to a сircumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
ORS 161.085(10) (emphasis added).
Defendant does not assert that the evidence was insufficient to show that he acted, at a minimum, with criminal negligence with respect to whether the driver of the motorcycle was injured. Accordingly, we do not address that issue. Suffice it to say that the state was not required to prove that defendant knew that another person was injured in the accident. Our contrary dictum in Hval was incorrect, and we disavow it. Likewise, we disavow our suggestion in Van Walchren that the defendant must “know” that the accident was “likely to have resulted in injury or death.”
The question remains whether, by alleging in the indictment that defendant “knоwingly fail[ed] to immediately stop” his vehicle at the scene of the accident, the state nonetheless undertook the burden of proving that defendant knew that the driver of the motorcycle was injured. We do not construe the indictment to so allege. As discussed, the indictment here alleged that
*81 “[t]he defendant, on or about July 28, 2007, in Jackson County, Oregon, being the driver of a vehicle being operated on the highway, which vehicle was involved in an accident that resulted in physical injury to [the victim], did unlawfully and knowingly fail to immediately stop the vehicle at the scene of the accident or as close theretо as possible and remain at the scene.”
As a grammatical matter, the allegation that defendant acted knowingly is attached only to the allegation that defendant failed to stop the vehicle at the scene of the accident. Irrespective of whether the state was required undеr ORS 161.115(2) to prove that defendant acted knowingly with respect to any other element of the charged offense, we do not interpret the indictment to impose an elevated burden of proof with respect to an element as to which such a burden is not unambiguously pleaded.
See Rutley,
Affirmed.