State v. Maguire
717 P.2d 226
Or. Ct. App.
1986
Check Treatment

*1 20, 1985, appellant’s February opinion On reconsideration filed filed (72 586), February In Banc June P2d resubmitted granted; April May petition for reconsideration affirmed reconsideration denied 1, 1986 (301 320) July review allowed OREGON, STATE OF Respondent, MAGUIRE, CHARLENE MARIE Appellant.

(06994; A33310) CA 717 P2d 226 City, Gray, Oregon Gray & and Cotton L. Ronald petition. Tempore.

GILLETTE, J., Pro dissenting. J., Warden, *2 Tempore

GILLETTE, J., Pro petitions pre Defendant for reconsideration our dismissing vious decision her appeal from conviction (DUII) under the influence intoxicants as not Maguire, filed. State v. timely being 695 P2d have were an We determined we misled timely error in defendant’s brief and that filed. appeal merits, On the defendant asserts that the trial court erred holding DUII as established former strict crime and that defense mental disease or defect to a apply does In reliance conclusions, on legal those the trial court struck defendant’s rely notice on mental disease or defect defense. We hold that DUII crime to which the defense mental disease or defect is inapplicable. We there fore affirm. At time alleged offense,2 provided,

487.540 in part: commits the offense of while under if influence of intoxicants drives a vehicle while *3 person: “(a) percent by Has .10 or weight more alcohol person by analysis breath, blood as shown chemical person blood or urine of the made under ORS 487.805 to 487.835; 487.815 and 487.825 to “(b) Is under the of intoxicating liquor influence or a substance;

controlled

“(c) intoxicating Is the influence of liquor and a controlled substance.

“(2) Driving while under the influence intoxicants is a AClass misdemeanor.”

Although a culpable mental normally requirement state is a for liability, criminal a statute outside the Criminal 1 1983, repealed 978, by 338, Former ORS Or § 487.540 was Laws ch was replaced by 1983, 1985, 16, (now Or ch § amended Or Laws § ch 813.010), 1, 1986. January effective alleged June, governed by Defendant’s offense occurred in This 1983. case is they adopted legislature. statutes as existed before the amendments All the 1983 opinion pre-1983 in this references to the statutes are their form. adopted a if it create strict crime after

Code legislative January “clearly 1,1972, and if it indicates a any culpable mental for material element thereof.” ORS the offense or 161.105(1)(b); Cho, 681 P2d 1152 see State v. (1982). (1984); Buttrey, 293 Or 651 P2d 1075 State v. Although decades, some form of has been an offense for provisions adopted specific ORS 487.540 were former January 1, after 1972. person by driving with the commits DUII either actually requisite or while under the blood alcohol content3 Having certain blood alcohol of an a influence intoxicant. person’s being status, and a under the influence level or nothing whether that status exists. mental state has to do with requires only The statute status, or should not that the knew

defendant had intoxicating drinking after have known of it. “One who drives liquor chance his blood-alcohol level violates takes the App 199, Gainer, 689 P2d 323 State v. statute.” keep legislature made DUII order undoubtedly dangerous the road. It was aware drivers off dangerously experience intoxi with DUII cases shows: what sincerely, liquor insist, at times cated drivers often ability. driving their drank has not affected which history surrounding circum statute, in the context of its clearly intent that the blood stances, indicates a any culpable involve intoxication element of DUII not alcohol state. proof However, is insufficient of intoxication itself convict; that the defendant drove. the state must also to Like objectively: intoxication, is determined physical See control of vehicle. or is not in actual either is (repealed 1983, ch Or Laws prohibited while intoxicated presented by dangers “have volun drivers who because *4 tarily physical faculties coordination and mental their allowed by inoxicating liquor.” hampered [sic] and dulled to become Robinson, Those P2d State dangers great person without when drives are at least as 813.010(l)(a). percent. level now .08 forbidden person state when drives with a culpable as think that culpable mental state. We it clear state that a defendant drove only intended that the need prohibited status, that was having any particular done mental state. Because the simply by showing the defendant met the statutory drove, criteria intoxication and DUII is liability crime to each its elements. now may,

We turn to whether a defendant nonethe- less, raise the defense of mental disease or defect to a DUII charge. time alleged offense, At the of the provided:

“(1) responsible A if for criminal conduct the time of such conduct aas result of mental disease defect capacity he lacks substantial either to the crimi- nality of his conduct or to his conform conduct to the requirements of law. chapter As used in abnormality

terms ‘mental disease or defect’ do not include an only by repeated manifested criminal or otherwise antisocial conduct.” (1) of

Subsection merely statute did not allow defendant a method of negating mental state element of the offense; it provided a defense to with which the defendant charged. was could commit the entire offense, including having whatever

required, and still establish defense. that,

We think it obvious of the two alternative grounds available —lack appreciate the criminality certain conduct and lack of capacity to conform to the requirements only conduct of law — the latter aid could defendant here. DUII statute is commonly violated people sane who do not appreciate the criminality conduct, of their theory of defense is therefore unavailable question to defendant. The thus nar- rows itself to this: May place a DUII defendant in issue his inability to conform his to the law?

Although this question difficult, is more we think answer must be guilty also no. Persons actually DUII who believe that conforming *5 they and would not drive if of the law who guilt thought is an otherwise. Their established Capacity driving—and a condition. to conform one’s act— charge.4 thus becomes irrelevant to a crime and that hold that DUII is strict We is available. the defense created ORS 161.295 not granted; Petition for affirmed. reconsideration dissenting. WARDEN, J., majority that defense of not The holds driving charged the influence of available to one with (DUII). by concluding that DUII a It does so intoxicants crime, not have as an one which does strict element a by concluding

culpable state, that the mental and charged persons with strict defense is not available to I doubts as to both of the crimes. Because have upon holding not which the is based do find conclusions persuasive, given I for conclusions dissent. the reasons those provides part: 161.095, Notwithstanding a if: required * * * * <<*

“(b) An outside the offense defined a statute clearly dispense a intent to Criminal Code indicates the offense or any for thereof.” material element “clearly” question legislature is whether the first culpability require- offense not to have intended DUII defining language con- statute the offense ment. The legislative intent to at all of a tains no indication requirement. finds mental state with the necessary in the statute’s manifestation of clear intent “history surrounding in these circumstances” contained two sentences: keep legislature crime in order to

“The made opposite scholarly suggests conclusion as we have found Such comment Scott, support. & appropriate, See LaFave there is a dearth of case law but (2d (1972); Hall, Principles ed Criminal Law 342 General Criminal Law undoubtedly dangerous off It drivers the road. was aware experience dangerously cases what with DUII shows: intoxi- insist, sincerely, liquor cated times drivers often at they ability.” which drank has not affected their 78 Or 462. legislature may keep That have DUII a crime made says dangerous nothing culpability. drivers off the road about made arson from discourage people buildings, down arson burning but does make a strict Similarly, intoxicated drivers insist liquor that their has not been affected have says nothing consumed culpability legislature’s about or the *6 intent. Supreme requirement Court has taken in the 161.105(1) (b) clear of legislative intent order v.

dispense with a State seriously. mental In Cho, (1984), P2d 1152 it held that ORS 498.022, prohibiting parts, the sale of wildlife was not a strict liability Although prohibited the statute such sales regard any without state, the Court stated: “The expressly mere enactment aof crime without an required culpable mental state is insufficient to establish such designation clear indication. The anof offense as a misde- (or felony) potential meanor invokes the incarceration violation, opposed heightened impact offenders. As to a the on liberty alleged the interest misdemeanant or felon provides support culpability requirement for a in crimes.” 297 Or at 201.

The court dismissed the state’s argument statute’s protection important of an state interest somehow bears on * * * legislative regarding culpability. intent “We fail to see supports how allegation this the state’s that ORS 498.022 liability other wildlife laws strict crimes.” 297 Or at 201. Finally, accepting even the state’s contention that the enact simplified system (similar ment of a and complaint of citation violations) charging to that used in motor vehicle somehow away indicates wished to do culpability requirement, the court concluded that it “falls ‘clearly’ short of indicating intent as [ORS 161.105] requires.” 297 Or at 202. Buttrey,

In State (1982), P2d 1075 suspended is a the court held that strict requisite required by legislative intent, offense. It found the providing provision 161.105,in the in the DWS statute culpability, knowledge, proved could be as a that lack of by making legislature, reasoned that the defense. The Court knowledge defense, it to make lack of showed that intended liability. itself one of strict Even that manifestation the crime only clear to four members of court. in the clear indication I do not find DUII statute intent to with the make DUII a strict offense. Assuming crime, as that DUII is majority concludes, I have more serious doubt of the cor- conclusion that the defense rectness of persons charged with crimes. not available to Oregon’s which, in ORS 161.295 defense contained alleged provided: offense, at the time of the “(1) if at responsible for criminal conduct of mental disease or defect the time of such conduct a result crimi- he either to lacks substantial nality his conform his conduct requirements of law. chapter As used abnormality do not include an terms ‘mental disease defect’ only by repeated criminal or otherwise antisocial manifested conduct.” *7 majority summarily disposes of the defense of

The criminality capacity appreciate of one’s conduct of to the lack commonly criminality by saying, violated sane “the DUII statute people appreciate conduct, of their not the who do theory to defen therefore unavailable and that of defense is say only appears that the 463. That to dant.” 78 explain why people. does not to sane It defense is not available criminality inability of to the a defendant whose his or mental disease defect should is rooted in her conduct asserting insanity prevented defense. from be cursory disposing majority in is even more capacity to the conform one’s conduct lack of to defense of requirements of finds the lack of the law. It regardless DUII, of the reason for to be irrelevant conform capacity. that, to reason because lack It seems liability, inability offense is one of strict to conform one’s of mental requirements to the law because irrelevant, disease or defect is the words “criminal conduct” in ORS do not include strict crimes. collapses

In this into one regard, It insanity. mental state separate concepts culpable and that, required, state is holds because no from a insanity cannot be a defense. That does not follow the statute the defense. 161.295 does reading creating say charged not it is not available to those with strict face, make the appears crimes. On its the statute any person charged defense available to insanity concepts mental state mental state is an element of a crime Culpable distinct. Insanity is an affirmative defense prove. state must criminal responsibility. that a defendant must to avoid Proving requisite culpable mental state for a crime does responding not relieve the state from to an claim That need to defendant. the state not, me,' mean mental state does it seems to that a defendant That the state cannot show that she was insane. proving

relieved of its burden of that a defendant acted recklessly, intentionally, has noth negligently, knowingly she is unable reason of ing to do with whether disease or defect to conform her conduct Scott, are not antitheses. As LaFave and of the law. two “ Law, 270, (1972), insanity defense say: Criminal ‘[T]he the fact concept,’ than the mens rea evidenced broader in a theory even be available the defense would required proof no for a strict crime which prosecution omitted.) (Footnote also See of the defendant’s mental state.” (2d ed Hall, Criminal Law 342 Principals General clearly indicated that has not Because because, is, if it offense and even DUII is with a charged to one defense of is not unavailable liability offense, I dissent. Newman, JJ., J., join Joseph, C. and Warren this dissent.