State v. Miller

• Decision Date: 06 March 1990
• Citation: 309 Or. 362,788 P.2d 974
• Parties: STATE of Oregon, Respondent on review, v. Les Lee MILLER, Petitioner on review. DC 880117M; CA A48812; SC S36077.
• Court: Oregon Supreme Court

Page 974

788 P.2d 974

309 Or. 362

STATE of Oregon, Respondent on review, v. Les Lee MILLER, Petitioner on review.

DC 880117M; CA A48812; SC S36077.

Supreme Court of Oregon.

Argued and Submitted June 13, 1989.

Decided March 6, 1990.

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. 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.

"(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,...