*1 13, 1989, Appeals and the Argued the decision of the Court of June and submitted 6, 1990 judgment March of the court affirmed trial OREGON, OF STATE Review, on Respondent v. MILLER,
LES LEE Petitioner on Review. S36077)
(DC 880117M; A48812; SC CA P2d 974 Salem, peti- cause for Silberblatt, argued the Henry M. Bab- Gary D. petition him on the tioner on review. With cock, Defender, Public Salem. Salem, General, Denney, Attorney H. Assistant
Thomas him on respondent review. With argued the cause for on Attorney Frohnmayer, Dave response petition to the were General, Linder, Salem. General, and L. Solicitor Virginia Peterson, Justice, Linde,** Carson, Before Chief Fadeley, Gillette, Hoomissen, Jones, Van Justices. JONES, J. concurring opinion.
Gillette, J., filed *2 Fadeley, dissenting opinion Carson, J., J., filed a in which joined part.
Fadeley, dissenting opinion. J., filed a ** Linde, J., 31, 1990. January retired
JONES, J. issue is a defendant be convicted of whether violating without of a being element of under the influence an state to the under the influence of an being intoxicant. We hold therefore, liability and, affirm intoxicant is a strict element Appeals. the decision of Court 16, 1988, Police officer an State January On the Influence of Intoxi- Driving arrested defendant for Under (DUII). registered defendant’s blood An Intoxilizer test cants (BAG) percent. at 0.12 Defendant waived his alcohol content trial, guilty to a and the trial court found defendant right jury of DUII.
Defendant maintains that he had not been aware prior driving on the ingested intoxicating beverage he question. that at trial he made the date Defendant states proof: following offer January slept [day he all on stated that had
“Defendant his p.m. 9:00 he out found friend at About went 1988]. beers, eight nine His Mend had had about McDonald’s. They got in defen- so defendant did not want him to drive. *3 town, bored, car, movies got drove rented some dant’s around them. Defendant went to the Mend’s house to watch then sick, days. His having anything for two was not eaten almost hurt, anything. throat he couldn’t breathe and couldn’t taste a.m., any By to drink 1:30 or 2:00 He said he didn’t want beer. drinking they They first been finished the movie. had had they stay the movies. coffee as to awake while watched so had a special fixed him drink that Defendant’s friend coffee taste, cup minty it. His drank a full coffee of defendant it, flavoring explained Mend that this was coffee some remedy that make defendant feel better. a sort of home would any know coffee contained Defendant did not that the drink beverage. day, next when He learned about that the alcoholic his about drink.” he talked to Mend to the trial court: Defense follows argued counsel ** * Honor, as a of fairness and it does seem matter “Your knowingly do somebody process of law should have to due that ** *. criminally wrong negligent something or at least be * * *.” kind of There should be some The trial court stated:
365 “Well, question appellate can there be no but what the obviously judges opinion have of differences about issue. any get decision-making You closer in cannot terms at the appellate than in trying level the court’s word to decide this that, suspect issue. And I and I have some reservations about also, agree the fairness it but I court must also that apply principles of what these cases stand for. The cases appear proposition to stand for the that the circumstances somebody intoxicated, they under which became whether not, voluntary objection were or that the court would draw as a result these cases one of If would be relevance. there’s requirement, no state of mind it make then doesn’t dif- person ference involuntarily whether became intoxicated * * * voluntarily. I think I am bound to follow what these appear ruling cases to stand for. The that court would Maguire and Bunch make is that the cases of [both infra] do permit present the defendant the defense he’s indicat- here, is, ing involuntarily he that became intoxicated some- one putting in his tea he alcohol that of. unaware That ruling.” will be the court’s appealed
Defendant
to the Court of Appeals, arguing
that “it should
appropriate
present
be
for defendant
aas
defense that his status of
under
being
the influence of intoxi-
manner,
cants was not manifested
voluntary
is,
in a
he
requisite
lacked the
mental state.”
(Emphasis
added.) The
of Appeals
by declining
Court
affirmed
to recon-
sider its
holding
liability
decisions
that DUII
is a strict
crime
(State Maguire,
v.
459,
(1986),
78
App
Or
<<‡ ‡ ‡ ‡ ‡ “(b) An offense defined a statute outside *4 clearly indicates a legislative Criminal Code intent to dis- pense any requirement with state for the any offense or for material element thereof. law,
“(2) Notwithstanding any existing other and unless 1, 1972, provides, January a statute after enacted otherwise an offense defined a statute outside the Criminal Code requires no mental state constitutes a vio- added.) (Emphasis lation.” statute, 813.010, provides:
The DUII “(1) person driving A under commits the offense of while person influence if drives a vehicle while of intoxicants person: “(a) percent by weight Has or more of alcohol in the .08 analysis person blood of the as shown chemical of 813.100, person made under ORS breath or blood of 813.150; 813.140 or
“(b) intoxicating liquor Is under the influence of or a substance; or controlled
“(c) liquor intoxicating Is influence of and a under the controlled substance.
“(2) person A in this convicted the offense described subject in addition to this section. section is to ORS 813.020 section, “(3) driving while offense described intoxicants, a A misdemeanor under the influence of is Class upon any open public.” applicable premises to the and is 1, January enacted after Because ORS 813.010 was Code, a lia- and is outside the Criminal DUII strict “clearly indicates a if bility crime ORS 813.010 require- dispense any with added). Although legisla- ment.” ORS 161.105 (emphasis concerning what constitutes provided ture has not criteria has intent, this court addressed clear indication of that issue in two recent decisions. Cho, (1984), the State v.
In
681 P2d
498.022,
pro-
violating ORS
which
defendant was convicted of
wildlife,
part
“any
purchase or sale
hibited the
con-
noncriminal
code statute
Violation
thereof.”
misdemeanor,
provi-
no
but the statute contained
stituted a
court held
culpable mental state. The
requiring
sion
men-
of a
required allegation
clearly
legisla-
indicate
the statute did not
tal state because
at 202.
Or
requirement.
such
dispense
tive intent
a crime without
enactment of
The court stated that “the mere
is insufficient
state
expressly
culpable mental
*5
indication,” adding
such a clear
that “the substan-
establish
of
was insuffi-
preservation
tial state interest
wildlife
liability
make the
of ORS 498.022 a strict
cient
breach
crime.”
In
v.
The court
necessary
dispense
did find the
intent
with a
mental state
in other subsections
requirement
of
ORS 487.560. The court reasoned that
making
former
lack of
suspension
defense,
notice of
an affirmative
legisla-
ture demonstrated a clear intent that
be a strict liability
DWS
Thus,
statutory
offense.
the court concluded that
provi-
together “clearly
sions considered
legislature
indicate that the
state,
chief,
intended that the
prove any
its case in
need not
state,
but that
avoid
might
defendant
conviction for conduct
which is otherwise criminal
estab-
lishing
one of the defenses
enumerated
in ORS
487.560(2)(b).” State Buttrey, supra,
v.
Buttrey upon legislative history also relied clearly ORS 487.560 in intended to finding that the dispense with a culpable requirement for DWS. Project Judiciary Director of the Interim Committee on testified as concerning follows a 1975 revision to the DWS statute: changes respect question
“One of the made was with to the suspension. whether the he defendant knew of his Proof that offense, suspension knew of his wouldnot be an element of the but failure to receive notice would be an affirmative defense
which would shift the burden to the defendant to establish the by preponderance Minutes, defense of the evidence.” House Judiciary, 5, 1975, May (quoted Committee on at State v. 584). Buttrey, supra, 293 Or at
Thus, by examining language the DWS as well as its statute’s legislative history, the court was able to conclude that DWS liability was a strict offense.
The DUII statute differs from the DWS statute in Buttrey in that ORS 813.010 does not contain affirmative defenses, nor does it provide any other clear textual indication a mental state concerning requirement. legislative history statute, of the DUII 813.010 *6 however, predecessor, helpful its in whether determining legislature ever that require culpa- intended DUII should ble mental state. required offense of DUII does not nor has it ever
proof culpable of a mental state. The statute as enacted in 1917, 1, Or Laws ch has been amended several § 70-year history legislation times. Never of this state’s any require has one word been written in statute to such DUII proof. interpreted any Never has this court DUII statute to require such proof. any We have not found where witness appearing any before committee legislative considering DUII statutes asserted that a state would be any for element of the offense. an Oregon
DUII is offense defined outside the Crimi- Code, legislative history, nal and the in the sense that no one block, procedural stumbling ever considered such a indicates a legislative dispense any culpable intent to requirement any for the offense or for its material elements. that, preposterous legislative
It seems with the effort over prove every to make DUII easier to in almost session decades, any last two could ever have intended that a legislator “I drunken driver could assert the defense that was so drunk I doing.” days pres- didn’t I In these of intense know what was legislature, groups Against sure on the from such as Mothers Oregon Drunk drivers off Driving, get highways, drunken the BAC level legislative reducing and the actions for convic- one of the tion of drunken drivers lowest in the nation, highly any responsible legisla- for it would be unusual requires publicly to intend or assert an intention that DUII tor of a mental state. that 1971 amendment apparent following It is its intention specifically spelled should have out legislature mental state. But this require that DUII does not legislative oversight justify dismantling does not a substantial improve public safety by getting of the effort to tougher on DUII offenders.
Having being a certain BAC or under the influence is status, person’s nothing and a mental state has to do with requires only whether that status exists. The statute that the prove driving, state defendant had the status while that the defendant knew or should have known of it. One who drinking liquor drives after takes risk that his intoxicating BAC violates the statute. The made DUII offense keep dangerous drivers off the road. It was undoubt- edly experience dangerously aware that has shown that intoxi- insist, cated often sincerely, liquor drivers at times they ability. statute, drank did not affect their driving history circumstances, the context of its surrounding clearly indicates a that the BAC element DUII does not involve mental state. (1) ways:
The offense of proven DUII be two percent by weight driver had .08 or more of alcohol in the (2) blood; intoxicating the driver was under the influence of *7 liquor a sepa controlled substance. These are not two and/or offenses, rate but two methods the one crime prove of DUII. Kizer, See State v. 238, 779 (1989). P2d 604 Because the BAC element of DUII mental require does not state, legislature reason dictates that the would not bifurcate DUII, the alternative one with and one proving methods a culpable without mental state. demonstrating
There are additional considerations mental state for legislature that the never intended 161.105(1)(b) Facially, either ORS proving method DUII. (2) for may appear require proof of some mental state statute, however, any other these conviction of DUII. Like provisions appropriate setting. need to be viewed in the Oregon new Crimi adopted legislature
The 1971 Criminal Law extensive work of the nal Code based on the (the Commission). Oregon Crimi See Commission Revision (1971). Commission, ORS Report Final nal Law Revision 743, 1971, 9. Or Laws ch part of that new Code. § 161.105 was contemplate not the Commission did apparent It is because the Commis of ORS 161.105 to DUII application any the other not mention DUII or sion’s minutes do i.e., offenses,” suspended, while reck driving traffic “serious officer, or hit and attempting police to elude a driving, less 153.500(5) (renumbered run. Former ORS 487.530 offense,” of violation traffic with the addition “major renamed order). This, however, surprising. is not of habitual offender code, to rewrite the criminal attempting The Commission was would have A rewrite of the latter not the motor vehicle code. 1975, 451. 1975. Or Laws ch to wait until provi aiming at with the What the Commission of mis gaggle 161.105 was the that would become ORS sion Revised throughout located cellaneous offenses crimes.” These affectionately as “the .990 Statutes known statutory chapters end of lffenses tacked on to the were law; than the criminal concerns other devoted to substantive chap end of such normally located at the they were because in “.990” or ending numbers ters, they commonly had section consider, legislature and the The Commission did not “.995.” of DUII contemplate, the crime the Code did that enacted so, unlikely entity highly done it is Had either regard. in this state for that DUII would have crime. element of that in the genesis had its present version of DUII years after the Code, only enacted four
1975 Motor Vehicle 451, legisla- That the 1975, 87. Code. Or Laws ch Criminal § enacting so close after of DUII ture re-enacted the definition state, any culpable mental 161.105, omitting while still concluding that the for provides proper basis also — a conclu- apply element to any such mental did not intend four “serious two of the other by the fact that sion buttressed prescribe did at the same time re-enumerated traffic offenses” ch See Or Laws mental states. particular culpable §
371 (attempt- 91 (reckless and Or Laws ch driving); 90 § elude).1 ing to above, expressed
For all the reasons we conclude influence-of-an-intoxicant element of being-under-the 813.010, mental DUII, requires proof culpable no of a state, Appeals. the Court of and we affirm the decision of
GILLETTE, J., concurring I join opinion Although of the court. the dissent’s persuaded by view also is I am and plausible, majority reenacted, more fact that the particularly reference to a DUII statutes sans sufficiently That is a clear the creation of ORS 161.105. after legislative message for me. however, I separately, emphasize write in order to I and point made the dissent believe to be correct Carson, Cho, important: Like Justice I believe that State v. (309 195, 681 (1984), 297 Or P2d wrongly 1152 decided. Or 381.) aside, at of stare I Issues decisis doubt that a of way. this court now would decide the Cho issue the same We however, do not today, have to reconsider Cho because the majority’s opinion rely holding. does not on its
I concur.
CARSON,
J., dissenting.
The issue in this case is whether the trial
erred
court
preventing
from
the defense of
asserting
defendant
invol-
untary
charge
driving
intoxication to a
of
under the influence
(DUII).1
of intoxicants
this
upon
precedents
Based
court,
err,
accordingly
I believe that the trial court did so
and I
dissent.
1
necessary
run
While common sense dictates that a
element of hit and
is knowl
(hit
run)
occurred,
edge that an accident has
ORS 483.602 and .604
did not
former
expressly require
noting
Oregon appellate
It is worth
that no
mental state.
required
court
whether
and .604
addressed
ORS 483.602
former
Reynolds,
(1961),
167, 172-73, 366
v.
State
In
P2d
was not
state.
229 Or
524
court
811, 819-20,
Corpuz,
issue,
App
State v.
621 P2d
to decide that
(1980),
Appeals
separate
the Court of
faced a similar but
issue.
not,
by majority,
The issue is
as stated
whether a defendant
be convicted
intoxicant)
violating
(driving
under the influence of an
without
being
under the
mental state with reference to the element of
“influence
of an intoxicant.”
Resolution of this case is hinged to a determination of purportedly whether the statute by defendant, violated 813.010, (also liability” is a “strict crime referred to as an liability” “absolute crime). crime or a “liability-without-fault” *9 is, If it no of a culpable mental required, and, state is therefore, whether ingestion the voluntary intoxicants was or involuntary is irrelevant. REQUIREMENT
I. LEGISLATIVE OF CULPABLE MENTAL STATE A. Legislative Policy. General
Nearly ago, legislature two decades specifically adopted a legislative policy generally requiring prerequisite state as a to a finding of criminal conduct. In legislature passed when the a comprehensive revision Oregon Code, of the Criminal expressly it stated that one of general purposes process of the define the act or “[t]o omission and the accompanying mental state that constitute each offense and limit the condemnation of conduct as crimi- nal 161.025(1)(d). when it is without fault.” ORS (Emphasis added.) on this Commenting provision, Criminal (the Commission) Law Revision Commission stated: (d) “Paragraph is intended make it clear that there is a legislative policy against creating liability without fault (the welfare, regulatory, public public crimes so-called tort or crimes), liability heavy penalties. provi- absolute sion should be ORS 161.505to This in
considered connection with Article 7 [now up which sets the violation classifi- 161.585] cation and in general requirements connection with the for culpability in set out Article 2 ORS 161.085to [now 161.125].” Commentary 2,2 (1970) Proposed Oregon Criminal Code § (the Commentary).
The Commentary further states:
“The Commission follows the Model Penal Code expressing policy liability’ concepts ‘strict adverse to use of law, possibility criminal whenever the offense carries a imprisonment. sentence of position only
“This relates not to offenses defined itself, law, body criminal code covers but the entire of state so penal far as sanctions are involved. As noted the Model commentators, Penal Code the absence of minimal culpability, the law has neither a deterrent nor corrective nor perform. They support function to incapacitative approach by stating: “ undoubtedly argument argued and the ‘It has been liability necessary repeated, is for will be that absolute But if in a number of areas where it obtains. enforcement
practical litigate enforcement cannot undertake to alleged legal requirements, culpability of deviation from we rightly the use of do not see how the enforcers can demand penal purpose. and should sanctions for the Crime does pass mean condemnation and no court should have to judgment unless it can declare that the defendant’s act was wrong. compromised. The This is too fundamental to be goes enough permits imposition if law far it of a mone- tary penalty liability in cases where strict has been ” imposed.’ Commentary, 11 at 11. § policy, turned Having general stated specifics. provides:
“(1) minimal requirement liability for criminal performance by person of conduct which includes a * * voluntary *. act *10 “(2) 161.105, Except provided person as in ORS a is not guilty person culpable of an offense unless the acts with a respect mental state with each material element of the necessarily requires culpable offense that a mental state.” statutory scheme, The together with the detailed commentary Commission, of the demonstrates the clear and unequivocal policy that all crimes must culpable include a mental By state unless ORS 161.105 contains an exception.2 focusing exceptions on the to this requirement, majority the implicitly accepts the general legislative policy.
B. Exceptions Legislative Policy. to the supplied,
With the context of the rule a dis- general cussion exceptions meaningful. leg- of the becomes more The policy islature a exceptions general requiring delineated to the 2 161.115, majority ignores provides, part: The also which “(1) defining prescribes culpable If statute a an offense a mental state but specify prescribed culpable applies, does the not element to which it mental applies necessarily requires state to each material element of the offense that a culpable mental state. “(2) 161.105, Except provided defining in ORS if a statute an offense does prescribe state, culpable culpability required a is nonetheless and is only person intentionally, knowingly, recklessly established if a acts or with crimi- negligence.” nal 161.105,3 application in ORS mental state culpable suggest. would The simple majority not as as the which is analyzed can of ORS 161.105 be interplay provisions of the alternative approach, ways: majority’s at least three approach. and the Cho4 approach, Majority Approach. The erroneously concludes that ORS majority mental state as to the culpable no requires
813.010
element of
“being-under-the-influence-of-an-intoxicant
result,
reaching
socially
In
desirable
Assuming,
majority,
as does the
issue,
requirement
the statute at
is
the subsection is
with
clearly
legislative
dispense
indicate a
intent to
the statute
permit
not
an
culpable
paragraph
mental state.5 The
does
legislative history,
examination of
circumstances
unbridled
now,
between),
(then,
or
surrounding
legislation
acquiescence
appellate
case law.
legislative
161.105(1)(b),
question,
under ORS
is whether a
clearly
statute outside the criminal code
indicates
intent
requirement.
with a
mental state
What is a
dispense
Epistemologically,
might argue,
“clear indication”?
one
clearly
does the
that the failure to include
indicates
majority,
an intent
dispense.
argument
rejected by
But that
has been
court,
this
even in cases
has set a
where the
crimi
(as here),
nal
penalty
because
mere enactment of
“[t]he
expressly required culpable
crime without an
mental state is
Cho,
insufficient
to establish such a clear indication.” State v.
supra,
Although
majority dutifully recog
376 defenses,
contain affirmative nor provide any does it other clear textual indication of intent concerning a men- tal requirement.” added.) state 309 Or at (Emphasis 368. majority support thus finds conclusion, for its circumspect not from a examination of the DUII statute as required by 161.105(1)(b), ORS but from a host of other sources, none of appropriate which is to consult.
(a) History.
The majority asserts that the offense of driving under
the influence never
required
has
a culpable mental state “in
70-year
history of this state’s legislation” on DUII. 309 Or
at 368. Correct as
may be,
that statement
it does not face
squarely,
all,
or at
the clear legislative policy enunciated in
1971, except to note that “the legislature
specifi-
should have
cally spelled out its intention that DUII does
require
not
culpable mental state.”
Agreed.
(b) Oversight.
The majority suggests clearly that the failure to indi- cate that no mental state was was a legisla- oversight. Indeed, tive it well have been. But spoken has to oversight problems6 and specifically has limited the judiciary’s powers. curative
As a further
position
reenforcement of its
of legisla-
tive oversight,
majority
reckons that the Commission did
contemplate
application
of the statute at issue to
“
”
DUII, or other
‘serious traffic offenses.’
has been or to omit what has been and where there are several provisions is, particulars possible, adopted give such if construction to be as will effect to all.” 7 commentary The official to the revised states: code culpability Oregon “The definitions set forth in the Criminal Code would be See, adopted by proposed especially, [dangerous driving].” & §§ draft. 90 Commentary Proposed (1975). § Vehicle Code (c) Outside the Criminal Code. majority opinion apparently takes comfort Legislative Assembly writing the 1971 was
suggestion
code, not the motor vehicle code”
An Approach. Alternate difficulty fundamental with the majority opinion is its focus on the paragraph second of the first subsection of statute, the exception statute, ORS 161.105.8 That in subsections (1 )(b) (2), provides two approaches for different ascertaining whether a statute outside the criminal code is a liability strict message statute.9 The I receive from the first two is, subsections of simplified terms, in dealing with Oregon statutes “outside the Criminal Code”:
(a) 1, (the January For statutes existence on 1972 effec- Code), Oregon
tive date of the Criminal men- dispensed tal state be with if the intent to 161.105(l)(b). “clearly do so is indicated.” ORS (b) 1, 1972, January For statutes enacted after an offense 8 majority essentially 161.105(2). Comment, “reads out” ORS See Strict Liability Code, and Criminal Sanctions: The 1971 Revisions to the Criminal 365, (1977) (“The provision 161.105(2)] repealed 13 Will L J be should [ORS way results.”). However, confusing construed that avoids and inconsistent this give court is bound to construe a statute in a manner effect all of its which will provisions. ORS 174.010. approach, code, appears A third not relevant to offenses outside the criminal 161.105(1)(a). ORS requires
that no mental state constitutes a vio- lation, provides. unless the statute otherwise ORS 161.105(2).
Thus, January if the statute was in existence on 161.105(1) applies; if the statute was enacted after ORS 161.105(2) 1,1972, applies. Because the statute January sub- specifically category at issue falls into established (2) (and (1), major- not subsection as discussed section “clearly dispense” indicates an intent ity), the test is not provides.”10 but “otherwise (2) says to me that in statutes enacted
Subsection 1, 1972, January wherein no outside the criminal code after (and none is mentioned in culpable mental state is 813.010), violation, legislature the offense is a unless the writing proverbial I on the clean provides.” “otherwise Were slate, by establishing I legislature, would assert that misdemeanor, is a Class A has violation of the DUII statute is, exception referent is to con- provided; otherwise violation, presence culp- not to the or absence of a stituting Thus, under ORS requirement. state able 161.105(2) provision is a applicable is the —which —DUII (a) culpa- liability requires strict crime because the statute no (b) state, pro- has otherwise legislature ble mental is a Class A misdemeanor. Under vided that DUII do to make a approach, has done all it must *14 liability criminal code a strict post-1971 statute outside the however, crime. on a clean Unfortunately, writing I am not in State precluded by slate and that conclusion is our decision Cho, two-part analysis. a supra, applying v. 1, 1972, January
Cho held that a statute enacted after offense is not a violation and provide must both that culp dispense a to with clearly indicate Cho, supra, State v. 297 Or at requirements. able mental state statutory require- separate 200.11The effect is to combine by stating: Commentary supports argument that (2) culpability requirements applies to statutes out- the minimal “Subsection However, its effective date. be enacted after side the criminal code that otherwise, provide flexibility specifically in Legislature but to will have requires contrary, provides that no an offense absence of a that to the statute Commentary, § 9 at 9. a violation.” mental state will constitute Guthrie, 52, v. followed, analysis, in State Cho without further (1987). P2d 509 161.105(2). 161.105(1)(b) primary ments of ORS 161.105(2) does not address was that ORS rationale stated and, required, conse a state whether 161.095(2) exception to ORS quently, provide does not 161.115(2). However, my am in assertion of the if I correct 161.105(2), general then the two independent status of ORS 161.095(2) 161.115(2) and are not to statements in ORS policy specifically acknowledges because each subsection applied be vitality by announcing 161.105 that overriding of ORS operate “[e]xcept provided both subsections way, another the two subsections at issue 161.105.” Stated (1) (ORS speak pre-1972 to two different time frames: 161.105(1)(b)) (2) (ORS 161.105(2)). post-1971 and Effect each, independent should be to of the other. Because of given Cho, overruling our we are bound — short of decision analysis. two-part its Cho —
The Cho Analysis. Cho, supra,
In State v. correctly court its began 161.105(2):12 analysis with ORS January
“Because
were
after
these statutes
enacted
Code,
Oregon
and are outside the
Criminal
161.105(2)
applied
must be
determine whether the offense
* * * is a violation or
crime. That subsection is clear. The
a
legislature
pro-
offense is violation unless the
has otherwise
exactly
vided. That is
provided
what the
has done. It has
A
that this offense is a Class misdemeanor. That
however,
question,
culpa-
does not answer the
as to whether a
pleaded
proved
to be
ble mental state is an element
* * *
establish a breach of these
laws.”
“* * * only way to establish a crime There is one require criminal code which does not outside the statute, legislature to enact a mental state. That is for the January 1, 1972, provides an offense is not a which after violation, clearly indicate for the offense *15 12 3, supra, of the statute. See n for the text
380 dispense culpable require- state
intent to ment.” with mental (Emphasis original.) Or at in 297 200. Cho,
Thus, post-1971 determined for a stat- court 161.105(2) code, ute outside the criminal both ORS 161.105(1)(b) it applied must be to determine whether requires culpable a mental state. Cho, then, (as question boils down it does
Under “clearly majority’s analysis) under to whether the statute culpable dispense a intent to with a men- indicates” above, For reasons I submit requirement. tal state stated has reached the conclusion under majority wrong Oregon, Cho. Cho the current law in I have set Because states proper I Cho analysis. forth below what believe be the a “clearly does indicate” not a dispense culpable requirement, with because mere enactment of a crime without “[t]he is insufficient expressly required culpable mental state Cho, supra, 297 Or establish such a clear indication.” State v. misdemeanor, violation, not at 201. The DUII offense a a 813.010(3), thus, defining though the “statute ORS even state, a prescribe an offense does not mental 161.115(2). culpability required.” is nonetheless ORS (1) driving has a vehi- DUII two material elements:13 (2) (a) intoxicating liquor cle while under the influence of and/ (b) a or substance, percent a or BAC of .08 controlled with at 2704; supra, 293 Or Buttrey, more. State v. See UCrJI No. cf. DWS). DUII, (two guilty crime To be of 582 elements to the respect mental state with person must act “with necessarily offense that to each material element of the 161.095(2). a min- ORS At requires mental state.”14 imum, acted crimi- prove that a defendant the state must elements of DUII. negligence respect nal of both 13 analysis performed majority litigants an elemental have Neither the nor “being- holding Although its terms of the the crime of DUII. states DUII,” generally the issue element of it treats under-the-influence-of-an-intoxicant analysis, clarity liability should crime. To add to our we is a strict whether DUII requirement always issue and the mental state determine the elements of the crime at supra. e.g., 161.115(1), See in n set out for each element. necessarily require examples As of elements which do limitations, state, Commentary jurisdiction, venue and the lists “the statute of Commentary, § like.” 9. at 161.115(2). In respect being of the circumstance intoxicated *16 more, having percent BAC of .08 or or of criminal negligence concept will suffice.15 Because of a criminally negligent undefined, prove conduct element is the state must least a knowing regarding at the element of driv- ing.16 Cho,
This court’s decision in together strong with the decisis, policy of stare me compels to dissent in this case. Cho, Under there is no way to conclude that DUII is strict liability crime. Defendant in this case wanted to that he argue criminally negligent was not of respect in of the element being (while drove). under the influence he Whether defendant had mental state was at issue and his defense of lack of culpability should have been heard. The trial court erred in allowing that defense.
II. CONCLUSION writing I majority, analyze Were for the I would this I.B.2., issue as set forth in section though above. Even analysis requires overruling v. in opinion State Cho—an which joined I am now convinced that the approach alternative is —I only approach part that works to make each of the statute meaning. However, have a lone dissenter does not have the case, power to overrule a accordingly, I must it as treat law in It Oregon. is unfortunate that has inex- plicably perform refused either to a complete analysis under (which conclusion) Cho would contrary lead to a or to overrule that case.
Fadeley, J., joins dissent, in this other than I.B.2. part 15 161.085(10) provides: “ negligence’ ‘criminally negligent,’ respect ‘Criminal when used with to a offense, defining result or to a circumstance described a statute an means that a person unjustifiable to be fails aware of a substantial and risk result that the will degree occur or that the exists. risk circumstance must be such nature and gross that the to be of it failure aware constitutes a deviation from the standard of person care that in a reasonable would observe the situation.” Being having percent under the influence of .08 or more intoxicant or a BAC is a Analysis Defining Grall, circumstance. See bility: Element Lia Criminal & Robinson Beyond, (1983). The Model Penal Code and Stan L Rev 697 supra, 161.085(10), negligence see n Note that criminal is defined respect elements, respect See with not with circumstantial but conduct elements. generally Analysis Defining Liability, supra. Grail, Element & Criminal Robinson Y, J.,
F
dissenting.
ADELE
Carson, J.,
join
part
I
in the dissent of
other than
dissent because in the circumstances of
join
I.B.2.1
correctly
governing question:
case he
answers the
Did
all
“clearly
dispense
indicate” an intention to
charge
only
to a
when the
indicator
reasoned defenses
DUII
Branner,
Berry
As
v.
is
silence?
307, 311,
(1966),
“Legislative
states:
inac-
I dissent for the additional reasons knows, has been here. As far this court defendant convicted *17 by drank to a cup of a crime he a of coffee handed him because public way. a on the After friend and thereafter drove vehicle deliberation, I the simply bring myself can’t to believe that prevent any jury intended to consideration a that defendant determination of defense the character asserts in this case. holding produces grave
The
constitutional
majority’s
may
deprived of a
defendants
be
consequences. Criminal
trial, as
the
meaningful
jury
practical
majority’s
the
result of
rule,
presenting
will be
from
a defense
they
prevented
because
the
criminally
are
showing
they
responsible
that
not
470, 98
Oregon,
v.
parameters of the case. See Wardius
US
(1973).
2208,
Ct
Five his 18th defendant weeks after The driving. He driving cited for under the influence. was above breathalyzer indicated his blood-alcohol content convict, .08 These two facts statutory percent. limit of knowingly, any ingested if alcohol was agree, holds. I a jury have in this case. That is what may which it been must decide. attempted prove at trial that he had
Defendant voluntarily any consumed intoxicants knowingly nor neither that his volition was not exercised driving. before He claimed Defendant’s counsel asserted body. alcohol in his place a fact to submit the defense to the fact finder for right process as a matter of “fairness and due determination ruled as a matter of law that the trier of judge law.” trial falsity fact could not hear and could not consider the truth or question of that assertion. It didn’t matter on the of criminal “I guilt, judge stating: ruled as a matter of law have after some reservations about the fairness of it also.” Constitution,
In a criminal context the not to provisions, guarantees mention federal certain fundamental process. I, 11, Article “the provides part section accused shall have the trial right public impartial jury.” provision may the accused be guarantees heard. that criminal contemplates guilt ORS 136.320 or inno- cence shall if only by jury, be determined or other fact finder jury. Const, I, a defendant waives a Compare Or Art 16 with § may legisla- 136.320. The fact finder not be tively guilty instructed to enter a verdict no matter what Otherwise, defense claimed the defendant the jury- be. Otherwise, trial guarantee meaningless. legisla- becomes or, ture usurps as in this case under the court majority, the misdemeanor, i.e., jury role of the in an offense designated as Court,_Cal3d_, crime. Mitchell v. 265 Cal Superior Cf. Rptr (1989). 783 P2d I constitutional issue in believe we must notice the *18 case, this criminal conviction of defendant or countenance a any may reprehensible which not be founded on conduct or Const, See Or Art acts he could know avoid. VII (Amended), questions might 3. The frame that following § issue.
To may legislature what extent the or this court con- stitutionally prevent jury exercising any meaningful a from a determining person role in whether a shall be declared to be criminally responsible by proscrib- criminal or otherwise held crime, ing, lacking any compo- as a a status or act volitional May a be part jury nent on the of an accused defendant? response making prevented moral to the reasoned from responsibility question in a of a defendant found of criminal performing act with- or a non-volitional non-volitional status person coming knowledge to the that the act contributes out status? within the non-volitional labeling majority’s lia- of an offense as “strict types bility distinguishing of con- between the crime” without jury’s prevent proscribed the seems both duct status response conduct and to moral to defendant’s actual reasoned knowing promote policy punishment conduct without legislature as an ele- that the defines that creates the status case, In this the truth- of a violation of criminal law. ment he came to be defendant’s claims about how fulness of unknown shut its because the trial court forbidden status ears to the defense. The mere should not liability crime” label “strict assessing meaningful jury prevent role for the responsibility. criminal analyzing than the defense offered under the
Rather “clearly facts of this case to decide whether prevent jury trier of indicates” an intention to or other majority up hearing defense, and fact from sets quite on men of other defenses based knocks down the straw up example, majority and knocks different facts. For sets I “I drunk I didn’t know what was down the defenses was so doing” “dangerously insist, often at intoxicated drivers they sincerely, liquor did not affect their that the drank times ability.” driving is this case. I straw-man case Neither strongly agree drinking intoxicating liquor majority that “one drives after with the who risk that his BAC
takes the But what “risk” [blood-alcoholcontent] violates the statute.” understandingly did Mr. Miller take? points policy society get out the is “to Clearly, Oregon highways.” Again, agree. I
drunken drivers off
police
apprehended
who
have done so
defendant should
prevented
his further driv-
should have arrested him and
ing.
question
Rather,
But that is not
issue.
is whether
policy
person
he does
must mean that a
who asserts that
anything
not know he had
at all alcoholic to drink should be
prevented
telling
jury
from
to the
so it
decide
and, therefore,
if
whether he is truthful
not a criminal. Even
very likely
jury
one feels that it is not
that the
will believe the
*19
and other
defendant,
credibility question
jurors
is what
that
drunken drivers off
Keeping
fact are to decide.
triers of
who believed
by convicting people
not be achieved
road will
in State v.
only. As the written decision
they drank coffee
(1986),
459, 462,
P2d 226
without
Maguire,
App
78 Or
aff’d
368,
“The made crime order undoubtedly aware of what gerous drivers off the road. It was dangerously experience with DUII cases shows: intoxicated insist, sincerely, liquor often at times that the drivers which they driving ability.” App drank has not affected their 78 Or at 462. Bunch, App also cite State v. (1987), per opinion citing
Without intended that volun- tary Becoming DUII. so drunk intoxication not be a defense to you under you doing certainly don’t know what are is criminal you Moreover, statutory if defense is limited DUII drive. specific apply generally intent offenses and does not do 161.105, and it be that provisions of ORS well that one is legislature specific intended to exclude the defense himself, compulsive help a drinker and couldn’t which is the all, Maguire, supra. After holding extent of the on the facts one an uncon- compelled just one is not to drive because consciously knowingly alcoholic. A “risk” has been trollable a quite cases to this one is taken. But to move from those to make criminal jump. To hold that the intended (or you by a friend drinking cup the act of a of coffee handed to word, waiter) “pre- truck-stop is, majority’s to borrow the posterous.” of the purpose
A here will not further the conviction will, instead, the road. It keep drinking statute to drivers off 18-year-old innocent to a give presumptively criminal record understanding who, made no according explanation, to his potentially, would, even create a which he could foresee choice risk of going Further, as a a convic- down convict. life’s/foad deny permit legislature, court, here or the tion will community meaningful jurors in the chosen from the role deprive right jury. of trial courtroom and the defendant the likely closing jury’s eyes to a Nor is it and ears pass con- defendant’s defense in a criminal case would federal *20 Making everyday conduct of stitutional muster. criminal the driving, drinking cup of coffee and thereafter without present providing opportunity to defendant to claims to a jury determination, is far different for their assessment testimony excluding on basis of state evidence rules from reliability or relevance. about expected to seek a construction of
The court would be potential minimize constitu- statutes which would avoid or statutory interpretation pre- complications in a case tional perhaps here, sented for decision. The court chose not to do so relying explicit of an “due on the Constitution’s lack process” clause. to and
Because I think the defense must be submitted by jury, for trial. decided I would reverse and remand