State v. Olmstead

780 P.2d 1201

Or. Ct. App.

1989

Check Treatment

STATE OF OREGON, Respondent, v. KENNETH DALE OLMSTEAD, Appellant.

(88-11312; CA A50685)

Oregon Court of Appeals

Argued and submitted May 22, affirmed October 18, 1989

reconsideration denied November 24, 1989

petition for review allowed February 22, 1990 (309 Or 333); See later issue Oregon Reports

780 P2d 1201

Before Richardson, Presiding Judge, and Newman and Deits, Judges.

Michael McGrady, Eugene, argued the cause and filed the brief for appellant.

Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

PER CURIAM

Defendant appeals from his convictions, on stipulated facts, for driving under the influence of intoxicants, ORS 813.010, and driving with a suspended license. ORS 811.182. Before trial, defendant filed notice of his intent to defend both charges by asserting that he was guilty but insane. ORS 161.295. The state moved that the defense be stricken. The court granted the state‘s motion.

Defendant‘s only contention is that the court erred in striking the defense. The defense under ORS 161.295 is not available, because driving under the influence of intoxicants and driving with a suspended license are both strict liability offenses.

State v. Buttrey, 293 Or 575, 651 P2d 1075 (1982); , affirmed without opinion by an equally divided court .

Affirmed.

NEWMAN, J., dissenting.

For the reasons stated by Warden, J., in his dissent in

State v. Maguire, 78 Or App 459, 717 P2d 226 (1986), affirmed without opinion by an equally divided court, , I believe that the defense of guilty but insane should be available to a defendant charged with a strict liability offense. Accordingly, I dissent, because I believe that the court erred when it granted the state‘s motion to strike that defense.