CARSON, J., 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 the influence of intoxicants (DUII). 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 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. 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, 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 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. 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. 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. 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. 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. (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. 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. 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 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. 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 provide for a culpable mental state (dangerous driving and eluding a police officer).

(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. (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. 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. 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. 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."

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 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. 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):

"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.

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. (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.

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, 297 Or at 201. The DUII offense is a misdemeanor, not a violation, ORS 813.010 (3), and thus, even though the "statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required." ORS 161.115 (2).

DUII has two material elements: (1) driving a vehicle (2)(a) while under the influence of intoxicating liquor and/or a controlled substance, or (b) with a BAC of .08 percent or more. See UCrJI No. 2704; cf. State v. Buttrey, supra, 293 Or at 582 (two elements to the crime of DWS). To be guilty of DUII, a person must act "with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state." ORS 161.095 (2). At a minimum, the state must prove that a defendant acted with criminal negligence in respect of both elements of DUII. ORS 161.115 (2). In respect of the circumstance of being intoxicated or having a BAC of .08 percent or more, proof of criminal negligence will suffice. Because the concept of a criminally negligent conduct element is undefined, the state must prove at least a knowing mental state regarding the element of driving.

This court's decision in Cho, together with the strong policy of stare decisis, compels me to dissent in this case. Under Cho, there is no way to conclude that DUII is a strict liability crime. Defendant in this case wanted to argue that he was not criminally negligent in respect of the element of being under the influence (while he drove). Whether defendant had a culpable mental state was at issue and his defense of lack of culpability should have been heard. The trial court erred in not allowing that defense.

II. CONCLUSION

Were I writing for the majority, I would analyze this issue as set forth in section I.B.2., above. Even though that analysis requires overruling State v. Cho — an opinion in which I joined — I am now convinced that the alternative approach is the only approach that works to make each part of the statute have meaning. However, a lone dissenter does not have the power to overrule a case, and accordingly, I must treat it as the law in Oregon. It is unfortunate that the majority has inexplicably refused either to perform a complete analysis under Cho (which would lead to a contrary conclusion) or to overrule that case.

Fadeley, J., joins in this dissent, other than part I.B.2.

FADELEY, J., dissenting.

I join in the dissent of Carson, J., other than part I.B.2. I join that dissent because in the circumstances of this case he correctly answers the governing question: Did the legislature "clearly indicate" an intention to dispense with all reasoned defenses to a DUII charge when the only indicator of legislative intent is legislative silence? As Berry v. Branner, 245 Or. 307, 311, 421 P.2d 996 (1966), states: "Legislative inaction is a weak reed upon which to lean in determining legislative intent." The criminal code interpretive guidelines still strongly favor culpability as a necessary element on the road to criminal punishment unless the legislature "clearly indicates" otherwise.

I also dissent for the additional reasons expressed here. As far as this court knows, defendant has been convicted of a crime because he drank a cup of coffee handed to him by a friend and thereafter drove a vehicle on the public way. After deliberation, I simply can't bring myself to believe that the legislature intended to prevent any jury consideration and determination of a defense of the character that defendant asserts in this case.

The majority's holding produces grave constitutional consequences. Criminal defendants may be deprived of a meaningful jury trial, as the practical result of the majority's rule, because they will be prevented from presenting a defense showing that they are not criminally responsible in the parameters of the case. See Wardius v. Oregon, 412 U.S. 470, 98 S Ct 2208, 37 L Ed 2d 82 (1973).

Under the majority's analysis, the only things defendant could have done to avoid becoming a criminal with a record were to say no thanks for the coffee or to never drive after drinking any liquid the exact origin or contents of which the imbiber does not personally know. That analysis makes acts criminal in a way that impairs the guarantee to trial by jury in criminal cases.

Five weeks after his 18th birthday, defendant was cited for driving under the influence. He was driving. The breathalyzer indicated his blood-alcohol content was above the statutory limit of .08 percent. These two facts convict, the majority holds. I agree, if any alcohol was ingested knowingly, which it may not have been in this case. That is what a jury must decide.

Defendant attempted to prove at trial that he had neither knowingly nor voluntarily consumed any intoxicants before driving. He claimed that his volition was not exercised to place any alcohol in his body. Defendant's counsel asserted the right to submit the defense to the fact finder for a fact determination as a matter of "fairness and due process of law." The trial judge ruled as a matter of law that the trier of fact could not hear and could not consider the truth or falsity of that assertion. It didn't matter on the question of criminal guilt, the judge ruled as a matter of law after stating: "I have some reservations about the fairness of it also."

In a criminal context the Oregon Constitution, not to mention federal provisions, guarantees certain fundamental process. Article I, section 11, provides in part that "the accused shall have the right to public trial by an impartial jury." The provision guarantees that the accused may be heard. ORS 136.320 contemplates that criminal guilt or innocence shall only be determined by a jury, or other fact finder if a defendant waives a jury. Compare Or Const, Art I, § 16 with ORS 136.310 and 136.320. The fact finder may not be legislatively instructed to enter a guilty verdict no matter what the defense claimed by the defendant may be. Otherwise, the jury-trial guarantee becomes meaningless. Otherwise, the legislature or, as in this case under the majority, the court usurps the role of the jury in an offense designated as a misdemeanor, i.e., a crime. Cf. Mitchell v. Superior Court, ___ Cal3d ___, 265 Cal.Rptr. 144, 783 P.2d 731, 737 (1989).

I believe we must notice the constitutional issue in this case, or countenance a criminal conviction of defendant which may not be founded on any reprehensible conduct or any acts he could know to avoid. See Or Const, Art VII (Amended), § 3. The following questions might frame that issue.

To what extent may the legislature or this court constitutionally prevent a jury from exercising any meaningful role in determining whether a person shall be declared to be a criminal or otherwise held criminally responsible by proscribing, as a crime, a status or act lacking any volitional component on the part of an accused defendant? May a jury be prevented from making a reasoned moral response to the question of criminal responsibility of a defendant found in a non-volitional status or performing a non-volitional act without knowledge that the act contributes to the person coming within the non-volitional status?

The majority's labeling of an offense as a "strict liability crime" without distinguishing between the types of conduct or status proscribed seems to both prevent the jury's reasoned moral response to defendant's actual conduct and to promote a policy of punishment without knowing conduct that creates the status that the legislature defines as an element of a violation of criminal law. In this case, the truthfulness of defendant's claims about how he came to be in the forbidden status is unknown because the trial court shut its ears to the defense. The mere label "strict liability crime" should not prevent a meaningful role for the jury in assessing criminal responsibility.

Rather than analyzing the defense offered under the facts of this case to decide whether the legislature "clearly indicates" an intention to prevent the jury or other trier of fact from hearing this defense, the majority sets up and knocks down the straw men of other defenses based on quite different facts. For example, the majority sets up and knocks down the defenses "I was so drunk I didn't know what I was doing" and "dangerously intoxicated drivers often insist, at times sincerely, that the liquor they drank did not affect their driving ability." Neither straw-man case is this case. I strongly agree with the majority that "one who drives after drinking intoxicating liquor takes the risk that his BAC [blood-alcohol content] violates the statute." But what "risk" did Mr. Miller understandingly take?

The majority points out the policy of society is "to get drunken drivers off Oregon highways." Again, I agree. Clearly, the police who apprehended defendant should have done so and should have arrested him and prevented his further driving. But that is not the issue. Rather, the question is whether that policy must mean that a person who asserts that he does not know he had anything at all alcoholic to drink should be prevented from telling that to the jury so it may decide whether he is truthful and, therefore, not a criminal. Even if one feels that it is not very likely that the jury will believe the defendant, that credibility question is what jurors and other triers of fact are to decide. Keeping drunken drivers off the road will not be achieved by convicting people who believed they drank coffee only. As the written decision in State v. Maguire, 78 Or. App. 459, 462, 717 P.2d 226 (1986), aff'd without opinion by an equally divided court 303 Or. 368, 736 P.2d 193 (1987), points out, in discussing the policy foundation of the DUII statute:

"The legislature made DUII a crime in order to keep dangerous drivers off the road. It was undoubtedly aware of what experience with DUII cases shows: dangerously intoxicated drivers often insist, at times sincerely, that the liquor which they drank has not affected their driving ability." 78 Or App at 462.

The majority also cite State v. Bunch, 87 Or. App. 386, 742 P.2d 74 (1987), a ten-line per curiam opinion citing Maguire, supra. Maguire is about a defendant who knew she was drinking alcohol and doing so to excess as a "compulsive" drinker, not about a person who drank what he believed to be a cup of coffee, handed to him by a friend, as defendant here asserts.

Without doubt, the legislature intended that voluntary intoxication not be a defense to DUII. Becoming so drunk you don't know what you are doing is certainly criminal under DUII if you drive. Moreover, that statutory defense is limited to specific intent offenses and does not apply generally as do the provisions of ORS 161.105, and it may well be that the legislature intended to exclude the specific defense that one is a compulsive drinker and couldn't help himself, which is the extent of the holding on the facts of Maguire, supra. After all, one is not compelled to drive just because one is an uncontrollable alcoholic. A "risk" has been consciously or knowingly taken. But to move from those cases to this one is quite a jump. To hold that the legislature intended to make criminal the act of drinking a cup of coffee handed to you by a friend (or a truck-stop waiter) is, to borrow the majority's word, "preposterous."

A conviction here will not further the purpose of the statute to keep drinking drivers off the road. It will, instead, give a criminal record to a presumptively innocent 18-year-old who, according to his explanation, made no understanding choice which he could foresee would, even potentially, create a risk of going down life's road as a convict. Further, a conviction here will permit this court, or the legislature, to deny jurors chosen from the community a meaningful role in the courtroom and deprive the defendant the right of trial by jury.

Nor is it likely that closing a jury's eyes and ears to a defendant's defense in a criminal case would pass federal constitutional muster. Making criminal the everyday conduct of drinking a cup of coffee and thereafter driving, without providing an opportunity to defendant to present claims to a jury for their assessment and determination, is far different from excluding testimony on the basis of state evidence rules about reliability or relevance.

The court would be expected to seek a construction of statutes which would avoid or minimize potential constitutional complications in a statutory interpretation case presented for decision. The court chose not to do so here, perhaps relying on the Oregon Constitution's lack of an explicit "due process" clause.

Because I think the defense must be submitted to and decided by a jury, I would reverse and remand for trial.