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Full Opinion
STATE of Oregon, Respondent On Review,
v.
Les Lee MILLER, Petitioner On Review.
Supreme Court of Oregon.
Henry M. Silberblatt, Salem, for petitioner on review. With him on the petition was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Asst. Atty. Gen., Salem, for respondent on review. With him on the response to the petition were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before PETERSON, C.J., and LINDE,[*] CARSON, JONES, GILLETTE, VAN HOOMISSEN and FADELEY, JJ.
JONES, Justice.
The issue is whether a defendant may be convicted of violating ORS 813.010 without proof of a culpable mental state as to the element of being under the influence of an intoxicant. We hold that being under the influence of an intoxicant is a strict liability element and, therefore, affirm the decision of the Court of Appeals.
On January 16, 1988, an Oregon State Police officer arrested defendant for Driving Under the Influence of Intoxicants (DUII). An Intoxilizer test registered defendant's blood alcohol content (BAC) at 0.12 percent. Defendant waived his right to a jury trial, and the trial court found defendant guilty of DUII.
Defendant maintains that he had not been aware that he ingested an intoxicating beverage prior to driving on the date in question. Defendant states that at trial he made the following offer of proof:
"Defendant stated that he had slept all [day on January 16, 1988]. About 9:00 p.m. he went out and found his friend at McDonald's. His friend had had about eight or nine beers, and so defendant did not want him to drive. They got in defendant's car, drove around town, got bored, rented some movies and then went to the friend's house to watch them. Defendant was sick, not having eaten anything for almost two days. His throat hurt, he couldn't breathe and couldn't taste anything. He said he didn't want to drink any beer. By 1:30 or 2:00 a.m., they had finished the first movie. They had been drinking coffee so as to stay awake while they watched the movies. Defendant's friend fixed him a special coffee drink that had a minty taste, and defendant drank a full coffee cup of it. *975 His friend explained that this was coffee with some flavoring in it, a sort of home remedy that would make defendant feel better. Defendant did not know that the coffee drink contained any alcoholic beverage. He learned about that the next day, when he talked to his friend about the drink."
Defense counsel argued as follows to the trial court:
"Your Honor, * * * it does seem as a matter of fairness and due process of law that somebody should have to knowingly do something wrong or at least be criminally negligent * * *. There should be some kind of culpable mental state * * *."
The trial court stated:
"Well, there can be no question but what the appellate judges obviously have differences of opinion about this issue. You cannot get any closer in terms of decision-making at the appellate level than the court's word in trying to decide this issue. And I suspect that, and I have some reservations about the fairness of it also, but I also agree that the court must apply the principles of what these cases stand for. The cases appear to stand for the proposition that the circumstances under which somebody became intoxicated, whether they were voluntary or not, the objection that the court would draw as a result of these cases would be one of relevance. If there's no state of mind requirement, then it doesn't make any difference whether the person became intoxicated involuntarily or voluntarily. * * * I think I am bound to follow what these cases appear to stand for. The ruling that the court would make is that the cases of Maguire and Bunch [both infra] do not permit the defendant to present the defense he's indicating here, that is, he became involuntarily intoxicated by someone putting in his tea alcohol that he was unaware of. That will be the court's ruling."
Defendant appealed to the Court of Appeals, arguing that "it should be appropriate for defendant to present as a defense that his status of being under the influence of intoxicants was not manifested in a voluntary manner, that is, that he lacked the requisite culpable mental state." (Emphasis added.) The Court of Appeals affirmed by declining to reconsider its decisions holding that DUII is a strict liability crime (State v. Maguire, 78 Or. App. 459, 717 P.2d 226 (1986), affirmed without opinion by an equally divided court, 303 Or. 368, 736 P.2d 193 (1987), and State v. Bunch, 87 Or. App. 386, 742 P.2d 74 (1987)). State v. Miller, 95 Or. App. 439, 769 P.2d 788 (1989).
ORS 161.105 delineates the circumstances under which a culpable mental state is not required for conviction. ORS 161.105 provides in pertinent part:
"(1) 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 offense or for any material element thereof.
"(2) Notwithstanding any other existing law, and unless a statute enacted after January 1, 1972, otherwise provides, an offense defined by a statute outside the Oregon Criminal Code that requires no culpable mental state constitutes a violation." (Emphasis added.)
The DUII statute, ORS 813.010, provides:
"(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
"(a) Has .08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150;
"(b) Is under the influence of intoxicating liquor or a controlled substance; or
"(c) Is under the influence of intoxicating liquor and a controlled substance.
"(2) A person convicted of the offense described in this section is subject to ORS 813.020 in addition to this section.
*976 "(3) The offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any premises open to the public."
Because ORS 813.010 was enacted after January 1, 1972, and is outside the Criminal Code, DUII is a strict liability crime if ORS 813.010 "clearly indicates a legislative intent to dispense with any culpable mental state requirement." ORS 161.105 (emphasis added). Although the legislature has not provided criteria concerning what constitutes a clear indication of legislative intent, this court has addressed that issue in two recent decisions.
In State v. Cho, 297 Or. 195, 681 P.2d 1152 (1984), the defendant was convicted of violating ORS 498.022, which prohibited the purchase or sale of "any wildlife, or any part thereof." Violation of the noncriminal code statute constituted a misdemeanor, but the statute contained no provision requiring a culpable mental state. The court held that ORS 498.022 required allegation and proof of a culpable mental state because the statute did not clearly indicate a legislative intent to dispense with such a requirement. 297 Or. at 202, 681 P.2d 1152. The court stated that "the mere enactment of a crime without an expressly required culpable mental state is insufficient to establish such a clear indication," adding that "the substantial state interest in the preservation of wildlife was insufficient to make the breach of ORS 498.022 a strict liability crime." 297 Or. at 201, 681 P.2d 1152.
In State v. Buttrey, 293 Or. 575, 651 P.2d 1075 (1982), the defendant was convicted of Driving While Suspended (DWS), in violation of former ORS 487.560. The court determined that the language of former ORS 487.560, coupled with its legislative history, clearly indicated a legislative intent to dispense with a culpable mental state requirement. 293 Or. at 585, 651 P.2d 1075. The court began with an examination of former ORS 487.560(1), which defined the crime as (1) driving a motor vehicle on the highway (2) during a period while the license is suspended. 293 Or. at 582, 651 P.2d 1075. The court noted that the language of former ORS 487.560(1) suggested that proof of these two elements alone, without reference to a culpable mental state, was enough to sustain a DWS conviction. The court, however, stated that the DWS definition alone was insufficient to constitute a clear indication of legislative intent.
The court did find the necessary intent to dispense with a culpable mental state requirement in other subsections of former ORS 487.560. The court reasoned that by making lack of notice of suspension an affirmative defense, the legislature demonstrated a clear intent that DWS be a strict liability offense. Thus, the court concluded that the statutory provisions considered together "clearly indicate that the legislature intended that the state, in its case in chief, need not prove any culpable mental state, but that the defendant might avoid conviction for conduct which is otherwise criminal by establishing one of the defenses enumerated in ORS 487.560(2)(b)." State v. Buttrey, supra, 293 Or. at 583-84, 651 P.2d 1075.
Buttrey also relied upon the legislative history of ORS 487.560 in finding that the legislature clearly intended to dispense with a culpable mental state requirement for DWS. The Project Director of the Interim Committee on Judiciary testified as follows concerning a 1975 revision to the DWS statute:
"One of the changes made was with respect to the question of whether the defendant knew of his suspension. Proof that he knew of his suspension 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 by preponderance of the evidence." Minutes, House Committee on Judiciary, May 5, 1975, at 2 (quoted in State v. Buttrey, supra, 293 Or. at 584, 651 P.2d 1075).
Thus, by examining the DWS statute's language as well as its legislative history, the court was able to conclude that DWS was a strict liability offense.
*977 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 of legislative intent concerning a mental state requirement. The legislative history of the DUII statute, ORS 813.010 and its predecessor, however, is helpful in determining whether the legislature ever intended that DUII should require a culpable mental state.
The offense of DUII does not nor has it ever required proof of a culpable mental state. The statute as enacted in 1917, Or. Laws 1917, ch. 29, § 1, has been amended several times. Never in the 70-year history of this state's legislation has one word been written in any DUII statute to require such proof. Never has this court interpreted any DUII statute to require such proof. We have not found where any witness appearing before any legislative committee considering DUII statutes asserted that a culpable mental state would be required for any element of the offense.
DUII is an offense defined outside the Oregon Criminal Code, and the legislative history, in the sense that no one ever considered such a procedural stumbling block, indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any of its material elements.
It seems preposterous that, with the legislative effort to make DUII easier to prove in almost every session over the last two decades, any legislator could ever have intended that a drunken driver could assert the defense that "I was so drunk I didn't know what I was doing." In these days of intense pressure on the legislature, from such groups as Mothers Against Drunk Driving, to get drunken drivers off Oregon highways, and the legislative actions reducing the BAC level for conviction of drunken drivers in Oregon to one of the lowest in the nation, it would be highly unusual for any responsible legislator to intend or publicly assert an intention that DUII requires proof of a culpable mental state.
It is apparent that following the 1971 amendment the legislature should have specifically spelled out its intention that DUII does not require a culpable mental state. But this legislative oversight does not justify a substantial dismantling of the legislative effort to improve public safety by getting tougher on DUII offenders.
Having a certain BAC or being under the influence is a status, and a person's mental state has nothing to do with whether that status exists. The statute requires only that the state prove that a defendant had the status while driving, not that the defendant knew or should have known of it. One who drives after drinking intoxicating liquor takes the risk that his BAC violates the statute. The legislature made DUII an offense to keep dangerous drivers off the road. It was undoubtedly aware that experience has shown that dangerously intoxicated drivers often insist, at times sincerely, that the liquor they drank did not affect their driving ability. The statute, in the context of its history and surrounding circumstances, clearly indicates a legislative intent that the BAC element of DUII does not involve any culpable mental state.
The offense of DUII may be proven two ways: (1) the driver had.08 percent or more by weight of alcohol in the blood; or (2) the driver was under the influence of intoxicating liquor and/or a controlled substance. These are not two separate offenses, but two methods to prove the one crime of DUII. See State v. Kizer, 308 Or. 238, 779 P.2d 604 (1989). Because the BAC element of DUII does not require a culpable mental state, reason dictates that the legislature would not bifurcate the alternative methods of proving DUII, one with and one without a culpable mental state.
There are additional considerations demonstrating that the legislature never intended a culpable mental state for either method of proving DUII. Facially, ORS 161.105(1)(b) and (2) may appear to require proof of some mental state for conviction of DUII. Like any other statute, however, these provisions need to be viewed in the appropriate setting.
The 1971 legislature adopted the new Oregon Criminal Code based on the extensive work of the Criminal Law Revision *978 Commission (the Commission). See Oregon Criminal Law Revision Commission, Final Report (1971). ORS 161.105 was part of that new Code. Or. Laws 1971, ch. 743, § 9. It is apparent that the Commission did not contemplate the application of ORS 161.105 to DUII because the Commission's minutes do not mention DUII or any of the other "serious traffic offenses," i.e., driving while suspended, reckless driving, attempting to elude a police officer, or hit and run. Former ORS 487.530 (renumbered ORS 153.500(5) and renamed "major traffic offense," with the addition of violation of habitual offender order). This, however, is not surprising. The Commission was attempting to rewrite the criminal code, not the motor vehicle code. A rewrite of the latter would have to wait until 1975. Or. Laws 1975, ch. 451.
What the Commission was aiming at with the provision that would become ORS 161.105 was the gaggle of miscellaneous offenses located throughout the Oregon Revised Statutes known affectionately as "the .990 crimes." These were offenses tacked on to the end of statutory chapters devoted to substantive concerns other than the criminal law; because they normally were located at the end of such chapters, they commonly had section numbers ending in ".990" or ".995." The Commission did not consider, and the legislature that enacted the Code did not contemplate, the crime of DUII in this regard. Had either entity done so, it is highly unlikely that DUII would have required a culpable mental state for any element of that crime.
The present version of DUII had its genesis in the 1975 Motor Vehicle Code, enacted only four years after the Criminal Code. Or. Laws 1975, ch. 451, § 87. That the legislature reenacted the definition of DUII so close after enacting ORS 161.105, while still omitting any culpable mental state, also provides a proper basis for concluding that the legislature did not intend any such mental element to apply a conclusion buttressed by the fact that two of the other four "serious traffic offenses" re-enumerated at the same time did prescribe particular culpable mental states. See Or. Laws 1975, ch. 451, § 90 (reckless driving); and Or. Laws 1975, ch. 451, § 91 (attempting to elude).[1]
For all the reasons expressed above, we conclude that the being-under-the influence-of-an-intoxicant element of DUII, ORS 813.010, requires no proof of a culpable mental state, and we affirm the decision of the Court of Appeals.
GILLETTE, Justice, concurring.
I join the opinion of the court. Although the dissent's view also is plausible, I am persuaded by the majority and more particularly by the fact that the legislature reenacted the DUII statutes sans any reference to a culpable mental state after the creation of ORS 161.105. That is a sufficiently clear legislative message for me.
I write separately, however, in order to emphasize a point made by the dissent that I believe to be correct and important: Like Justice Carson, I believe that State v. Cho, 297 Or. 195, 681 P.2d 1152 (1984), was wrongly decided. (Dissenting opinion at 976.) Issues of stare decisis aside, I doubt that a majority of this court now would decide the Cho issue the same way. We do not have to reconsider Cho today, however, because the majority's opinion does not rely on its holding.
I concur.
CARSON, Justice, dissenting.
The issue in this case is whether the trial court erred in preventing defendant from asserting the defense of involuntary intoxication to a charge of driving under *979 the influence of intoxicants (DUII).[1] Based upon the precedents of this court, I believe that the trial court did so err, and I accordingly dissent.
Resolution of this case is hinged to a determination of whether the statute purportedly violated by defendant, ORS 813.010, is a "strict liability" crime (also referred to as an "absolute liability" crime or a "liability-without-fault" crime). If it is, no proof of a culpable mental state is required, and, therefore, whether the ingestion of intoxicants was voluntary or involuntary is irrelevant.
I. LEGISLATIVE REQUIREMENT OF CULPABLE MENTAL STATE
A. General Legislative Policy.
Nearly two decades ago, the legislature specifically adopted a legislative policy generally requiring a culpable mental state as a prerequisite to a finding of criminal conduct. In 1971, when the legislature passed a comprehensive revision of the Oregon Criminal Code, it expressly stated that one of the general purposes of the process was "[t]o define the act or omission and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault." ORS 161.025(1)(d). (Emphasis added.) Commenting on this provision, The Oregon Criminal Law Revision Commission (the Commission) stated:
"Paragraph (d) is intended to make it clear that there is a legislative policy against creating liability without fault crimes (the so-called regulatory, public welfare, public tort or absolute liability crimes), with heavy penalties. This provision should be considered in connection with Article 7 [now ORS 161.505 to 161.585] which sets up the violation classification and in connection with the general requirements for culpability set out in Article 2 [now ORS 161.085 to 161.125]." Commentary to Proposed Oregon Criminal Code § 2, 2 (1970) (the Commentary).
The Commentary further states:
"The Commission follows the Model Penal Code in expressing a policy adverse to use of `strict liability' concepts in criminal law, whenever the offense carries a possibility of sentence of imprisonment.
"This position relates not only to offenses defined by the criminal code itself, but covers the entire body of state law, so far as penal sanctions are involved. As noted by the Model Penal Code commentators, in the absence of minimal culpability, the law has neither a deterrent nor corrective nor an incapacitative function to perform. They support this approach by stating:
"`It has been argued and the argument undoubtedly will be repeated, that absolute liability is necessary for enforcement in a number of areas where it obtains. But if practical enforcement cannot undertake to litigate the culpability of alleged deviation from legal requirements, we do not see how the enforcers rightly can demand the use of penal sanctions for the purpose. Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant's act was wrong. This is too fundamental to be compromised. The law goes far enough if it permits the imposition of a monetary penalty in cases where strict liability has been imposed.'" Commentary, § 11 at 11.
Having stated the general policy, the legislature turned to specifics. ORS 161.095 provides:
"(1) The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act * * *.
"(2) Except as provided in ORS 161.105, a person is not guilty of an offense *980 unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state."
The statutory scheme, together with the detailed commentary of the Commission, demonstrates the clear and unequivocal policy that all crimes must include a culpable mental state unless ORS 161.105 contains an exception.[2] By focusing on the exceptions to this requirement, the majority implicitly accepts the general legislative policy.
B. Exceptions to the Legislative Policy.
With the context of the general rule supplied, a discussion of the exceptions becomes more meaningful. The legislature delineated exceptions to the general policy requiring a culpable mental state in ORS 161.105,[3] the application of which is not as simple as the majority would suggest. The interplay of the provisions of ORS 161.105 can be analyzed in at least three ways: the majority's approach, an alternative approach, and the Cho[4] approach.
1. The Majority Approach.
The majority erroneously concludes that ORS 813.010 requires no proof of a culpable mental state as to the "being-under-the-influence-of-an-intoxicant element of DUII." 309 Or. at 371, 788 P.2d at 978. In reaching this socially desirable result, the majority makes at least three critical mistakes in its analysis: (1) It substantially disregards the longstanding, significant legislative policy (discussed above) that generally requires a culpable mental state for conviction of a crime; (2) it focuses on the wrong section of a statute to explain its rationale and, then, misapplies that section; and (3) it ignores the impact of the analysis required by our decision in State v. Cho, 297 Or. 195, 681 P.2d 1152 (1984).
The majority focuses on subsection 1 of ORS 161.105. Subsection 1 dispenses with a culpable mental state if:
(a) the offense is merely a violation (the instant offense is not; it is a Class A misdemeanor); or
(b) the offense is outside the Oregon Criminal Code (the instant offense is) and the statute clearly indicates a legislative intent to dispense with any culpable mental state.
Assuming, as does the majority, that the second paragraph of the subsection is the statute at issue, the requirement is that the statute clearly indicate a legislative intent to dispense with a culpable mental state.[5]*981 The paragraph does not permit an unbridled examination of legislative history, circumstances surrounding the legislation (then, now, or in between), or legislative acquiescence in appellate case law.
The question, under ORS 161.105(1)(b), is whether a statute outside the criminal code clearly indicates an intent to dispense with a culpable mental state requirement. What is a "clear indication"? Epistemologically, one might argue, as does the majority, that the failure to include clearly indicates an intent to dispense. But that argument has been rejected by this court, even in cases where the legislature has set a criminal penalty (as here), because "[t]he mere enactment of a crime without an expressly required culpable mental state is insufficient to establish such a clear indication." State v. Cho, supra, 297 Or. at 201, 681 P.2d 1152. Although the majority dutifully recognizes that statement in Cho, it does not explain why the statement does not end its analysis under ORS 161.105(1)(b).
The other case cited by the majority, State v. Buttrey, 293 Or. 575, 651 P.2d 1075 (1982), likewise does not support its conclusion. In Buttrey, a majority of this court determined "that the language of [former] ORS 487.560 [driving while suspended] itself clearly indicates a legislative intent to dispense with a culpable mental state requirement, and the legislative history puts the matter beyond question." 293 Or. at 582, 651 P.2d 1075. However, to reach that conclusion, the court examined the structure of the entire DWS statute, including the affirmative defenses provided therein, and found the requisite legislative intent. In fact, the Buttrey court pointed out that the part of the statute defining the offense does not, by itself, "clearly [indicate] a legislative intent to dispense with any culpable mental state requirement." Id. The majority admits that this case is distinguishable from Buttrey: "ORS 813.010 does not contain affirmative defenses, nor does it provide any other clear textual indication of legislative intent concerning a mental state requirement." 309 Or. at 368, 788 P.2d at 977. (Emphasis added.)
The majority thus finds support for its conclusion, not from a circumspect examination of the DUII statute as required by ORS 161.105(1)(b), but from a host of other sources, none of which is appropriate to consult.
(a) History.
The majority asserts that the offense of driving under the influence never has required a culpable mental state "in the 70-year history of this state's legislation" on DUII. 309 Or. at 368, 788 P.2d at 977. Correct as that statement may be, it does not face squarely, or at all, the clear legislative policy enunciated in 1971, except to note that "the legislature should have specifically spelled out its intention that DUII does not require a culpable mental state." 309 Or. at 369, 788 P.2d at 977. Agreed.
(b) Oversight.
The majority suggests that the failure to clearly indicate that no culpable mental state was required was a legislative oversight. Indeed, it may well have been. But the legislature has spoken to oversight problems[6] and specifically has limited the judiciary's curative powers.
As a further reenforcement of its position of legislative oversight, the majority reckons that the Commission did not contemplate the application of the statute at issue to DUII, or other "`serious traffic offenses.'" 309 Or. at 370, 788 P.2d at 978. That may be, but the Committee on Judiciary, which rewrote the Oregon Vehicle Code in 1975 (to which the majority refers), did so contemplate. Of the five serious traffic offenses, two specifically *982 provide for a culpable mental state (dangerous driving and eluding a police officer).[7]
(c) Outside the Criminal Code.
The majority opinion apparently takes comfort in the suggestion that the 1971 Legislative Assembly was writing a "criminal code, not the motor vehicle code." 309 Or. at 370, 788 P.2d at 978. (Emphasis in original.) One can hardly review ORS 161.105 without reaching the conclusion that the 1971 Legislature spoke to crimes beyond the confines of the criminal code, its specific referent in ORS 161.105(1)(b) and (2). Nor should the majority take solace in its ".990 crimes" explanation. 309 Or. at 370, 788 P.2d at 978. At the time the Commission was drafting the proposed revision, at the time the legislature enacted the revision, and until 1975, the DUII statute was a ".990" crime. See former ORS 483.992 (repealed by Or. Laws 1975, ch. 451, § 291).
To summarize, even assuming that the majority is applying the correct provision of ORS 161.105 to the issue at hand, the conclusion it reaches that the DUII statute "clearly indicates a legislative intent to dispense with any culpable mental state requirement" is incorrect.
2. An Alternate Approach.
The fundamental difficulty with the majority opinion is its focus on the second paragraph of the first subsection of the exception statute, ORS 161.105.[8] That statute, in subsections (1)(b) and (2), provides two different approaches for ascertaining whether a statute outside the criminal code is a strict liability statute.[9] The message I receive from the first two subsections of ORS 161.105 is, in simplified terms, in dealing with statutes "outside the Oregon Criminal Code":
(a) For statutes in existence on January 1, 1972 (the effective date of the Oregon Criminal Code), a culpable mental state may be dispensed with if the legislative intent to do so is "clearly indicated." ORS 161.105(1)(b).
(b) For statutes enacted after January 1, 1972, an offense that requires no culpable mental state constitutes a violation, unless the statute otherwise provides. ORS 161.105(2).
Thus, if the statute was in existence on January 1, 1972, ORS 161.105(1) applies; if the statute was enacted after January 1, 1972, ORS 161.105(2) applies. Because the statute at issue specifically falls into the category established by subsection (2) (and not subsection (1), as discussed by the majority), the test is not "clearly indicates an intent to dispense" but "otherwise provides."[10]
Subsection (2) says to me that in statutes enacted outside the criminal code after January 1, 1972, wherein no culpable mental state is required (and none is mentioned in ORS 813.010), the offense is a violation, unless the legislature "otherwise provides." Were I writing on the proverbial clean slate, I would assert that the legislature, by establishing that violation of the DUII statute is a Class A misdemeanor, has otherwise provided; that is, the exception *983 referent is to constituting a violation, not to the presence or absence of a culpable mental state requirement. Thus, under ORS 161.105(2) which is the applicable provision DUII is a strict liability crime because (a) the statute requires no culpable mental state, and (b) the legislature has otherwise provided that DUII is a Class A misdemeanor. Under this approach, the legislature has done all it must do to make a post-1971 statute outside the criminal code a strict liability crime. Unfortunately, however, I am not writing on a clean slate and that conclusion is precluded by our decision in State v. Cho, supra, applying a two-part analysis.
Cho held that a statute enacted after January 1, 1972, must both provide that the offense is not a violation and clearly indicate a legislative intent to dispense with the culpable mental state requirements. State v. Cho, supra, 297 Or. at 200, 681 P.2d 1152.[11] The effect is to combine the separate statutory requirements of ORS 161.105(1)(b) with 161.105(2). The primary rationale stated was that ORS 161.105(2) does not address whether a culpable mental state is required, and, consequently, does not provide an exception to ORS 161.095(2) or 161.115(2). However, if I am correct in my assertion of the independent status of ORS 161.105(2), then the two general policy statements in ORS 161.095(2) and 161.115(2) are not to be applied because each subsection specifically acknowledges the overriding vitality of ORS 161.105 by announcing that both subsections operate "[e]xcept as provided in ORS 161.105." Stated another way, the two subsections at issue speak to two different time frames: (1) pre-1972 (ORS 161.105(1)(b)) and (2) post-1971 (ORS 161.105(2)). Effect should be given to each, independent of the other. Because of our decision in Cho, we are bound short of overruling Cho by its two-part analysis.
3. The Cho Analysis.
In State v. Cho, supra, this court correctly began its analysis with ORS 161.105(2):[12]
"Because these statutes were enacted after January 1, 1972, and are outside the Oregon Criminal Code, ORS 161.105(2) must be applied to determine whether the offense * * * is a violation or a crime. That subsection is clear. The offense is a violation unless the legislature has otherwise provided. That is exactly what the legislature has done. It has provided that this offense is a Class A misdemeanor. That does not answer the question, however, as to whether a culpable mental state is an element to be pleaded and proved to establish a breach of these * * * laws." 297 Or. at 199, 681 P.2d 1152.
To determine whether a culpable mental state is required, the court then looked to ORS 161.105(1)(b). In concluding that the wildlife law involved in that case required proof of a culpable mental state, the Cho court embraced the following approach:
"* * * There is only one way in Oregon to establish a crime outside the criminal code which does not require a culpable mental state. That is for the legislature to enact a statute, after January 1, 1972, which provides that an offense is not a violation, and for the offense to clearly indicate a legislative intent to dispense with the culpable mental state requirement." 297 Or. at 200, 681 P.2d 1152. (Emphasis in original.)
Thus, in Cho, this court determined that for a post-1971 statute outside the criminal code, both ORS 161.105(2) and 161.105(1)(b) must be applied to determine whether it requires a culpable mental state.
Under Cho, then, the question boils down (as it does under the majority's analysis) to whether the statute "clearly indicates" a legislative intent to dispense with a culpable mental state requirement. For the reasons stated above, I submit that the majority has reached the wrong conclusion under Cho. Because Cho states the current law in Oregon, I have set forth below what I believe to be the proper Cho analysis.
*984 ORS 813.010 does not "clearly indicate" a legislative intent to dispense with a culpable mental state requirement, because "[t]he mere enactment of a crime without an expressly required culpable mental state is insufficient to establish such a clear indication." State v. Cho, supra,