State v. Buttrey

• Decision Date: 05 October 1982
• Docket Number: Nos. C80-10-33782,CC78-424,s. C80-10-33782
• Citation: 651 P.2d 1075,293 Or. 575
• Parties: STATE of Oregon, Respondent on review, v. Donna Jean BUTTREY, Appellant on review. ; CA A20616; SC 28155.
• Court: Oregon Supreme Court

Page 1075

651 P.2d 1075

293 Or. 575

STATE of Oregon, Respondent on review, v. Donna Jean BUTTREY, Appellant on review.

Nos. C80-10-33782, CC78-424; CA A20616; SC 28155.

Supreme Court of Oregon In Banc.

Argued and Submitted Feb. 10, 1982.

Reargued Sept. 7, 1982.

Decided Oct. 5, 1982.

John Daugirda, Deputy Public Defender, Salem, argued and reargued the cause for appellant on review. With him on the brief was Gary D. Babcock, Public Defender, Salem.

David B. Frohnmayer, Atty. Gen., Salem, argued and reargued the cause for respondent on review. With him on the brief were William F. Gary, Sol. Gen., and Rudolph S. Westerband, Asst. Atty. Gen., Salem.

PETERSON, Justice.

In State v. Stroup, 290 Or. 185, 620 P.2d 1359 (1980), we held that in a prosecution for driving while suspended, ORS 487.560, where the suspension is for failure to appear in court, the state is not required to prove, as an element of the offense, that the order of suspension was mailed to defendant. We also held that procedural due process did not require, as an element of the offense, proof of mailing of the notice of suspension, because the defendant, before the suspension, was provided an opportunity for a hearing and given notice that failure to appear at the hearing might result in the suspension of driving privileges. 290 Or. at 197-202, 620 P.2d 1359.

Anticipating the present case, we stated:

"As also previously stated, this is a case in which defendant's driver's license was suspended for 'failure to appear.' Whether the same result would follow in cases in which drivers' licenses are suspended for other reasons and whether in such cases the state would be required by due process to offer evidence of constructive notice as a part of its case in chief is not before the court for decision in this case." 290 Or. at 202, 620 P.2d 1359.

We noted:

"Defendant has not contended in this case that he is denied due process by the failure of ORS 487.560 to require a culpable mental state to support a conviction for 'driving while suspended,' thus making it a strict liability crime." ¹ Id. at 202 n.14, 620 P.2d 1359.

This is a case in which the defendant's driver's license was suspended for one of the "other reasons" referred to in Stroup and we are squarely faced with the two "open" questions from Stroup:

1. In a prosecution for driving while suspended, do Oregon statutes require the state to prove a culpable mental state, i.e., that the defendant, at the time of the offense, had actual or constructive knowledge that her license had been suspended?

2. Was defendant denied Fourteenth Amendment due process either because she was convicted absent any showing of mens rea or because ORS 482.560 unconstitutionally shifts the burden of disproving an element of the crime, knowledge, to the defendant?

The defendant was charged with violating ORS 487.560. The information alleged:

"The said defendant, on or about October 23, 1980, in the County of Multnomah, State of Oregon, did unlawfully and feloniously drive a motor vehicle upon a highway and other premises open to the public at a time when the said defendant's license to drive a motor vehicle and right to apply for a license to drive a motor vehicle in this state were suspended by the court and by the Motor Vehicles Division of the Department of Transportation and were revoked by the Motor Vehicles Division of the Department of Transportation, contrary to the Statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

The case was tried to the court without a jury. The defendant stipulated that she was driving upon a highway. A copy of the order suspending her driver's license was received in evidence. The driving occurred during the suspension period. Appended to the suspension order was a certificate that the copy of the suspension order was correct and that the order "was mailed to the official address of record as recorded on the Motor Vehicles Division record." ² No return receipt was offered in evidence and there was no evidence, other than the suspension order itself and the certificate thereon, that the defendant had received the notice of suspension. The exhibit was received without objection. ³ The defendant moved for acquittal asserting that there was no proof of mens rea and that the "shifting of the burden" under ORS 487.560(2) (set forth below) was unconstitutional. The trial court denied the motion and found the defendant guilty of a class C felony, stating:

"THE COURT: I find that the Plaintiff, the State, has proven the elements of the offense beyond a reasonable doubt--driving by the Defendant on the date alleged on a public street or road in Multnomah County and at a time when the Defendant's license to drive was suspended as a result of a conviction for driving under the influence of intoxicating liquor, and therefore I will find the Defendant guilty of felony driving while suspended."

The court suspended imposition of sentence and placed the defendant on five years' probation and required her to serve one year in the county jail. The Court of Appeals affirmed the conviction from the bench. 54 Or.App. 40, 642 P.2d 704 (1981).

A CULPABLE MENTAL STATE IS NOT AN ELEMENT OF DRIVING WHILE

SUSPENDED. ORS 487.560

Historically, criminal liability has required both an act and a culpable mental state. In the past century, legislatures have passed numerous statutes which have imposed criminal liability unaccompanied by fault. Strict liability statutes have been passed because of the difficulty in proving intent, knowledge, recklessness or negligence, and because of a legislative perception that evil should be eradicated, even at the risk of convicting blameless defendants. W. LaFave and A. Scott, Handbook on Criminal Law 218 (1972). Oregon has enacted such statutes. ⁴

The defendant claims that there are three elements to the crime of driving while suspended, (1) driving a vehicle upon a highway, (2) with a suspended license, (3) with knowledge of the suspension. For the purposes of this opinion we will assume that there is no evidence that the defendant had actual or constructive knowledge that her license had been suspended. The decision turns on an analysis of the statute defining the crime, ORS 487.560 (which was enacted in 1975 as part of a comprehensive motor vehicle code reform), and general provisions in the Oregon Criminal Code of 1971, ORS chapter 161.

The Oregon Criminal Code was revised in 1971. The drafters of the law and the legislature were very much aware of "strict liability" crimes. In the "purposes" section of the code, ORS 161.025(1)(d), this legislative purpose is stated:

"(1) The general purposes of chapter 743, Oregon Laws 1971, are:

" * * *.

"(d) To 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."

The Criminal Code sought to create a uniform system for determining offense classifications and culpability requirements. See Comment, Strict Liability and Criminal Sanctions: The 1971 Revisions to the Oregon Criminal Code, 13 Willamette L.Rev. 365, 366-67 nn. 9, 10 (1977). The Criminal Code includes provisions defining a "culpable mental state," ORS 161.085, and describing when a culpable mental state must be proved, ORS 161.095, ORS 161.115, and ORS 161.105. ORS 161.085 lists and defines four culpable mental states--intentionally, knowingly, recklessly and criminal negligence--each of which require a form of awareness or failure to be aware as a requirement of criminal liability.

A culpable mental state is generally required for criminal liability to be imposed. ORS 161.095(2) provides:

"(2) Except as provided in ORS 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state."

ORS 161.115(2) provides:

"(2) Except as provided in ORS 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence."

ORS 161.105(1)(b), the "exception" statute referred to in ORS 161.095(2) and ORS 161.115(2), states:

"(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."

The criminal statute under which the defendant was charged and convicted, ORS 487.560, is outside the Criminal Code. It provided:

"(1) A person commits the crime of driving while suspended if he drives a motor vehicle upon a highway during a period when his license or permit to drive a motor vehicle or his right to apply for a license to drive a motor vehicle in this state has been suspended by a court or by the division or revoked by the division or if he drives a motor vehicle outside the restrictions of a license issued under ORS 482.475 or 482.477.

"(2) In a prosecution under subsection (1) of this section, it is an affirmative defense that:

"(a) An injury or immediate threat of injury to human or animal life and the urgency of the circumstances made it necessary for the defendant to drive a motor vehicle at the time and place in question; or

"(b) The defendant had not received notice of his suspension or revocation as required by ORS 482.570 or in the manner provided in paragraph (c) of subsection (3) of this section.

"(3) The affirmative defense under paragraph (b) of subsection (2) of this section shall not be available to the defendant if:

"(a) The defendant refused to sign a receipt for the certified mail containing the notice; or

"(b) The notice could not be delivered to the defendant be...