State v. Miller

788 P.2d 974, 309 Or. 362, 1990 Ore. LEXIS 31, 1990 WL 20965

• Court: Oregon Supreme Court
• Decided: March 6, 1990
• Docket: DC 880117M; CA A48812; SC S36077
• Status: Published

Opinions

JONES, J.

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 (BAG) 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 Mend 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 Mend’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. His Mend 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 Mend 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 P2d 226 (1986), affirmed without opinion by an equally divided court, 303 Or 368, 736 P2d 193 (1987), and State v. Bunch, 87 Or App 386, 742 P2d 74 (1987)). State v. Miller, 95 Or App 439, 769 P2d 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.

“(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 P2d 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. 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.

In State v. Buttrey, 293 Or 575, 651 P2d 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. 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. 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.

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).

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.

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 P2d 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 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 lffenses 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 re-enacted 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.

1 While common sense dictates that a necessary element of hit and run is knowledge that an accident has occurred, former ORS 483.602 and .604 (hit and run) did not expressly require a culpable mental state. It is worth noting that no Oregon appellate court addressed whether former ORS 483.602 and .604 required a culpable mental state. In State v. Reynolds, 229 Or 167, 172-73, 366 P2d 524 (1961), this court was not required to decide that issue, and in State v. Corpuz, 49 Or App 811, 819-20, 621 P2d 604 (1980), the Court of Appeals faced a similar but separate issue.