State v. Maguire

GILLETTE, J.,

Pro Tempore

Defendant petitions for reconsideration of our previous decision dismissing the appeal from her conviction for driving while under the influence of intoxicants (DUII) as not being timely filed. State v. Maguire, 72 Or App 223, 695 P2d 586 (1985). We have determined that we were misled by an error in defendant’s brief and that the appeal was timely filed.

On the merits, defendant asserts that the trial court erred in holding that former ORS 487.540¹ established DUII as a strict liability crime and that the defense of mental disease or defect does not apply to a strict liability crime. In reliance on those legal conclusions, the trial court struck defendant’s notice of intent to rely on the mental disease or defect defense. We hold that DUII is a strict liability crime to which the defense of mental disease or defect is inapplicable. We therefore affirm.

At the time of the alleged offense,² former ORS 487.540 provided, in part:

“(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 .10 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of breath, blood or urine of the person made under ORS 487.805 to 487.815 and 487.825 to 487.835; or

“(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) Driving while under the influence of intoxicants is a Class A misdemeanor.”

Although a culpable mental state is normally a requirement for criminal liability, a statute outside the Oregon Criminal Code may create a strict liability crime if it was adopted after January 1,1972, and if it “clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof.” ORS 161.105(1)(b); see State v. Cho, 297 Or 195, 681 P2d 1152 (1984); State v. Buttrey, 293 Or 575, 651 P2d 1075 (1982). Although some form of DUII has been an offense for decades, the specific provisions of former ORS 487.540 were adopted after January 1, 1972.

A person commits DUII by driving either with the requisite blood alcohol content³ or while actually under the influence of an intoxicant. Having a certain blood alcohol level 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 the defendant had the status, not that the person knew or should have known of it. “One who drives after drinking intoxicating liquor takes the chance that his blood-alcohol level violates the statute.” State v. Gainer, 70 Or App 199, 204, 689 P2d 323 (1984). 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. The statute, in the context of its history and surrounding circumstances, clearly indicates a legislative intent that the blood alcohol intoxication element of DUII not involve any culpable mental state.

However, proof of intoxication by itself is insufficient to convict; the state must also prove that the defendant drove. Like intoxication, driving is determined objectively: a person either is or is not in actual physical control of a vehicle. See former ORS 487.005(5) (repealed by Or Laws 1983, ch 338, § 978). The legislature prohibited driving while intoxicated because of the dangers presented by drivers who “have voluntarily allowed their physical coordination and mental faculties to become hampered and dulled by inoxicating [sic] liquor.” State v. Robinson, 235 Or 524, 531, 385 P2d 754 (1963). Those dangers are at least as great when a person drives without a culpable mental state as when the person drives with a culpable mental state. We think it clear that the legislature intended that the state need prove only that a defendant drove while having the prohibited status, not that the driving was done with any particular mental state. Because the state may prove DUII simply by showing that the defendant met the statutory criteria for intoxication and drove, DUII is a strict liability crime as to each of its elements.

We turn now to whether a defendant may, nonetheless, raise the defense of mental disease or defect to a DUII charge. At the time of the alleged offense, ORS 161.295 provided:

“(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.

“(2) As used in chapter 743, Oregon Laws 1971, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.”

Subsection (1) of the statute did not merely allow a defendant a method of negating the culpable mental state element of the offense; it provided a defense to the crime with which the defendant was charged. A person could commit the entire offense, including having whatever culpable mental state was required, and still establish the defense.

We think it obvious that, of the two alternative grounds available under ORS 161.295(1) — lack of capacity to appreciate the criminality of certain conduct and lack of capacity to conform conduct to the requirements of law — only the latter could aid defendant here. The DUII statute is commonly violated by sane people who do not appreciate the criminality of their conduct, and that theory of defense is therefore unavailable to defendant. The question thus narrows itself to this: May a DUII defendant place in issue his inability to conform his conduct to the requirements of the law?

Although this question is more difficult, we think that the answer must also be no. Persons may be guilty of DUII who actually believe that they are conforming to the requirements of the law and who would not drive if they thought otherwise. Their guilt is established by an act — driving—and a condition. Capacity to conform one’s conduct thus becomes irrelevant to the charge.⁴

We hold that DUII is a strict liability crime and that the defense created by ORS 161.295 is not available.

Petition for reconsideration granted; affirmed.

1 Former ORS 487.540 was repealed by Or Laws 1983, ch 338, § 978, and was replaced by Or Laws 1983, ch 338, § 587, amended by Or Laws 1985, ch 16, § 293 (now ORS 813.010), effective January 1, 1986.

2 Defendant’s alleged offense occurred in June, 1983. This case is governed by the statutes as they existed before the amendments adopted by the 1983 legislature. All references in this opinion to the statutes are to their pre-1983 form.

3 The forbidden level is now .08 percent. ORS 813.010(l)(a).

4 Such scholarly comment as we have found suggests that the opposite conclusion may be appropriate, but there is a dearth of case law in support. See LaFave & Scott, Criminal Law 270, § 36 (1972); Hall, General Principles of Criminal Law 342 (2d ed 1960).