(dissenting) — In State v. Crediford, this court held that the relationship between a defendant’s alcohol level within two hours of driving and the consumption of *498alcohol prior to driving is an element of the crime of driving under the influence of alcohol (DUI) which must be proved by the State. State v. Crediford, 130 Wn.2d 747, 927 P.2d 1129 (1996). The majority now abandons sub silentio, its analysis in Crediford and relieves the State from its burden of proving the very element it recognized in Crediford. In other words, what this court gave with one hand in Crediford it now takes back with the other. I respectfully dissent.
The DUI statute says a person is guilty of the offense if he drives a vehicle while under the influence of alcohol or drugs or if, within two hours after driving, he has an alcohol concentration of .10 percent or higher in his breath or blood. Former RCW 46.61.502(l)(a). The statute also says it is an affirmative defense to a prosecution for this second form of the offense if the defendant proves by a preponderance of the evidence that he consumed a sufficient quantity of alcohol after driving and before the test to cause an alcohol concentration of above .10 percent. Former RCW 46.61.502(3). The plurality in Crediford felt the Legislature would not have intended “to punish persons for the consumption of alcohol that was not associated with the operation of a motor vehicle.” Crediford, 130 Wn.2d at 755. In order to give effect to the Legislature’s perceived intent and avoid possible constitutional problems, the plurality said it had to interpret RCW 46.61.502 to include a “legally required, albeit implied, element” that the defendant had a sufficient quantity of alcohol in his system while driving to result in a breath or blood alcohol concentration of .10 or higher within two hours after driving. Crediford, 130 Wn.2d at 755. The plurality also concluded that the statutory affirmative defense unconstitutionally relieved the State of its burden of proving every element of the crime (specifically, the implied element). Id. at 759.
The defendant in Crediford had been convicted in a bench trial on stipulated facts, so neither the elements of the crime nor the statutory affirmative defense had been incorporated in jury instructions. Thus, the question was *499not whether an instructional error was harmless, but how the constitutional defect in the statute affected Crediford’s bench trial. The plurality found the stipulated facts insufficient to prove the defendant’s .16 reading was caused by alcohol consumed before driving, and thus concluded that a new trial would be barred by double jeopardy. Id. at 760-61.
Robbins had a jury trial. Based on Crediford, his attorney proposed a “to convict” instruction which would have required the State to prove that, while Robbins was driving, he either had a breath alcohol concentration of .10 percent or higher or was actually impaired by alcohol. The trial court instead gave an instruction that required the State to prove Robbins had an alcohol concentration of .10 percent or higher in his breath within two hours of driving.
Today, the majority opinion holds that the State need only prove the “implied element” described in Crediford if the defendant affirmatively asserts that he or she consumed alcohol after driving which resulted in a breath test of .10 or higher. Majority at 495. The opinion analogizes to self-defense, which becomes an issue only if the defendant raises it. Majority at 495-96.
Admittedly, self-defense need be disproved only if the defendant presents some evidence he acted in self-defense. But that is a defense. The reason the State must disprove it is that it negates the intent element of the crime. State v. McCullum, 98 Wn.2d 484, 494-96, 656 P.2d 1064 (1983).6 The State must prove the intent element in every case, whether or not the defendant claims lack of intent of raises any other defense. Because Robbins’ proposed instruction was not given, the State was not required to prove, nor was Robbins’ jury required to find, any relationship between his alcohol level within two hours of driving and his consumption of alcohol before driving. Although this relationship was implied based on perceived Legislative intent, it is an element of the crime, like drinking or driving (or intent), not an affirmative defense. Because this is an ele*500ment of the crime, the State must prove it in every case, just like any other element.
This court has repeatedly held that “nonstatutory” (i.e., “implied”) elements of crimes must be included in the information, just the same as statutory elements. E.g., State v. Moavenzadeh, 135 Wn.2d 359, 362, 956 P.2d 1097 (1998) (citing other cases). This court has also reversed convictions because a nonstatutory element was omitted from the jury instructions. State v. MacMaster, 113 Wn.2d 226, 231, 778 P.2d 1037 (1989) (omission of causation element in vehicular homicide case).7 This court has also held that omission of an element of a crime from a “to convict” instruction is per se reversible. E.g., State v. Smith, 131 Wn.2d 258, 265, 930 P.2d 917 (1997). Because the nonstatutory element recognized by this court in State v. Crediford was omitted from the “to convict” instruction, the conviction in this case must be reversed and the matter remanded for a new trial.
That is why this court found the DUI affirmative defense unconstitutional in State v. Crediford, 130 Wn.2d 747, 927 P.2d 1129 (1996).
The Legislature responded to MacMaster by amending the statute to omit that element. See State v. Rivas, 126 Wn.2d 443, 896 P.2d 57 (1995); State v. Salas, 127 Wn.2d 173, 897 P.2d 1246 (1995).