The facts on appeal were essentially as follows. Defendant met his friends for dinner one evening and, anticipating that he would drink alcohol at dinner, left his car parked by his apartment and walked to the restaurant. Thereafter, defendant's friends drove him home, and he went to sleep. Later that evening, a police officer followed defendant's car and observed defendant make a left-hand turn without signaling or stopping, run a red light, and drive down the middle of a street, straddling the two traffic lanes. The officer then activated his overhead lights to initiate a traffic stop and, in response, defendant pulled into a parking lot. The officer approached defendant's car, smelled a strong odor of alcohol, and observed defendant's bloodshot, watery eyes and slow, slurred speech. Defendant agreed to perform field sobriety tests and, after failing them, was taken into custody. At the police station, defendant consented to a Breathalyzer test, which revealed that he had a blood alcohol level of 0.15 percent.
At trial, defendant admitted that he was intoxicated but sought to present evidence that he did not consciously drive or control his car. He testified that he was not aware of leaving his apartment, going to his car, starting the car, or driving it. According to defendant, after he went to sleep that evening, the next thing he was aware of was the police car lights flashing behind him. Defendant argued that his evidence was admissible pursuant to ORS 161.085 and 161.095 because, under those statutes, criminal liability requires a voluntary act. Additionally, defendant asserted a due process right to present his sleep-driving defense.FN1 The trial court excluded his proffered evidence on the ground that it was not relevant because DUII is a strict liability offense.
The defendant argued on appeal that, even though the Oregon Supreme Court had held that the state need not prove that the defendant intentionally became intoxicated, that the law still required that the state prove that the driving element was intentional.
Reiterating a quote from prior caselaw and rejecting that position, the appeals court wrote:
“[t]he 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.”
The defense also cleverly argued another reason why intent was required under the law:
"(1) The elements of a greater crime subsume all elements of a lesser-included crime, State v. Moroney, 289 Or. 597, 616 P.2d 471 (1980); (2) attempted DUII is a lesser-included offense of DUII, State v. Baty, 243 Or.App. 77, 259 P.3d 98 (2011); (3) attempt requires that a person “intentionally [engage] in conduct which constitutes a substantial step toward commission of the crime,” ORS 161.405(1); (4) therefore, the greater crime of DUII must subsume the intentional element of attempted DUII, and DUII must include a culpable mental state.
Calling the defense' argument a 'clever syllogism', the court also rejected this theory:
"If defendant's construction of ORS 136.465 were correct, an attempt crime under ORS 161.405(1) would import an intentional mental state into every crime, even where the legislature has expressly provided for a different mental state. We presume that the legislature would not have intended such an absurd result."
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