dissenting.
It is understandable that the trial judge in this case expressed himself so forcefully in rejecting the evidence of defendant’s prior conviction of driving under the influence of intoxicants, because as the trial judge points out, the conviction of such a crime is not probative of the defendant’s credibility and the use of the evidence of the prior conviction, under the facts of this case, could severely prejudice the defendant in the eyes of the jury.
The majority would, I believe, agree that the conviction sought to be shown here would not be relevant on the question of credibility. Nevertheless, the majority feels constrained to construe ORS 45.600 to permit evidence of the conviction of any crime because our previous cases have so construed the statute and *60because it provides a “clear and certain rule for the purposes of judicial administration.”
The indiscriminate character of this “clear and certain rule” has been criticized.① Moreover, the cases which established it② lose much of their persuasiveness when it is realized that they rest upon an unsatisfactory analysis of the statute. These cases assert that ORS 45.600 is “declaratory of the common law.”③ But at common law not all convictions were seen as tainting a witness. As McCormick on Evidence, § 43 at p. 84 (2d ed 1972) explains: “At common law the conviction of a person for treason or any felony, or of a misdemeanor involving dishonesty (crimen falsi) or the obstruction of justice, rendered the convicted person altogether incompetent as a witness. These were said to be the ‘infamous’ crimes.” The justification for the common law rule was that persons convicted of this class of crimes lacked the basic qualities of character essential to trustworthiness.④ The basis for the rule, then, was credibility. It is fair to assume that the legislature intended to retain this rationale of credibility when it superseded the incompetency rule by substituting for it the right to attack a witness’ credibility by the *61use of prior convictions.⑤ And it would also seem fair to • assume tliat the legislature recognized the significance of, and intended to retain for the purpose of impeachment, the common law distinction between convictions which affect credibility and convictions which do not. But our previous cases, without any analysis of the statutes or the historical background out of which they arose, applied ORS 45.600 to all crimes, adding without explanation the statement that the statute is “declaratory of the common law.” This statement does not explain the result, for as we noted with respect to ORS 41.900 (8) in Rogers v. Donovan, decided this day:
“* * * [T]he statute in question has been held to be declaratory of the common law. That being the case, the statute is not the exclusive authority, because as McCormick says: * * [Wjhen the common law imposes a restriction not mentioned in the statute, the restriction has been said to govern, unless the circumstances show a legislative intention to abrogate it.’ ” (footnotes omitted) 268 Or 24, 518 P2d 1306.
Thus, the decisions relied on by the majority are not the kind of precedent that should have any weight in the construction of a statute.
*62Courts in other jurisdictions have construed similar statutes to exclude evidence of prior convictions unless the offense was one involving “moral turpitude, thus fitting the statute generally into the framework of the common law.”⑥ As McCormick has observed and as the majority opinion reiterates, this construction results in impairing the efficient administration of justice because of the uncertainty of the meaning of “moral turpitude.” But, although the construction adopted by the majority facilitates the efficient administration of justice, it creates a more serious danger in my opinion — the danger of denying a party the fair administration of justice. It was this latter danger which prompted the trial judge in the present case to exclude the evidence of the prior conviction.
Turning to the precise basis of the decision below, I believe the trial judge acted properly in excluding *63evidence of this conviction. We will never know what the verdict would have been if the evidence had been admitted in this case. Inasmuch as defendant was not driving perhaps the jury would not have been strongly influenced by the prior conviction. But in cases where defendant is the driver, there is a real danger that the jury will reason that because a defendant had been driving under the influence of intoxicants on a previous occasion, he was driving under the influence in the case before it or, in any event, because he had violated the law and therefore had been a bad man on a previous occasion, he likewise was a bad man at the time of the incident out of which the ease at hand arose. There is here the danger which we have noted in the criminal cases in which evidence of other criminal conduct on the part of the defendant is sought to be adduced. In these cases we have held that evidence of other criminal conduct is admissible only if the probative value of the evidence outweighs its prejudicial effect.⑦ A comparable standard, recognizing authority in the court to balance competing interests has been applied to evidence of past criminal conduct used solely for the purposes of impeachment.⑧
If the same reasoning were used in cases such as the one at bar, the admissibility of prior convictions would be determined by balancing prejudice against probative value. There is precedent in Oregon in sup*64port of such a rule.⑨ 'Although this rule of admissibility could be even more uncertain than one resting upon whether a particular crime involves moral turpitude, it is in my opinion preferable to the rule embraced by the majority, which elevates certainty and efficiency of judicial administration above fundamental fairness in the administration of justice. This view has recently been accepted by a substantial number of courts.⑩
Our disagreement on the proper interpretation of OES 45.600 suggests that there is the need for its revision. The proposal of Eule 21 of the Uniform Eules of Evidence provides a good solution: “Evidence of the conviction of a witness for a crime not involving dishonesty or false statement shall be inadmissible for the purpose of impairing his credibility * * Uniform Eules of Evidence, Eule 21, 9A ULA 607 (1965).
Hutchens, How the Adoption of the Uniform Rules of Evidence Would Affect the Law of Evidence in Oregon: Rules 17-55, 41 Or L Rev 306, 309 (1962); Lacy, Oregon Evidence Law in the Sixties: Problems, Patterns, and Projections, 49 Or L Rev 188, 197 (1970).
State v. Rush, 248 Or 568, 436 P2d 266 (1968); State v. Rollo, 221 Or 428, 351 P2d 422 (1960); State v. Wilson, 182 Or 681, 189 P2d 403 (1945); State v. Jordan, 146 Or 504, 26 F2d 558, 30 P2d 751 (1934).
State v. Hunsaker, 16 Or 497, 19 P 605 (1888); State v. Motley, 127 Or 415, 272 P 561 (1928); State v. Ede, 167 Or 640, 117 P2d 235 (1941).
I Greenleaf on Evidence § 327, 513-15 (Wigmore ed 1899); 2 Wigmore on Evidence §§ 519-520 at 608-613 (3d ed 1940).
ORS 44.020 provides, in relevant part: “* * * [N] either parties nor other persons who have an interest in the event of an action, suit or proceeding are excluded; nor those convicted of crime * * * although in every case * * * the credibility of the witness may be drawn in question, as provided in ORS 44.370.”
ORS 44.370, inter alia, permits a party to overcome the presumption that an adverse witness is speaking the truth by producing “evidence affecting his character or motives.”
This section, like ORS 44.020, has been held to be “declaratory of the common law.” State v. Motley, 127 Or 415, 419, 272 P 561 (1928). It follows that under ORS 44.370 only convictions which at common law would have been held to “affect character” should be admissible. As noted in the text, these were only the so-called infamous crimes, not every conviction.
See e.g., State v. Van Allen, 140 Conn 39, 97 A2d 890 (1953); Asata v. Furtado, 52 Hawaii 284, 474 P2d 288 (1970); Werdell v. Turzynski, 128 Ill App2d 139, 262 NE2d 833 (1970); State v. Millings, 247 S C 52, 145 SE2d 422 (1965); State v. Olson, 83 S D 260, 158 NW2d 526 (1968). See also Reed v. State, 43 Ala App 419, 191 So2d 258 (1966).
Contra: In re Searchill’s Estate, 9 Mich App 614, 157 NW2d 788 (1968); Ward v. State, 27 Okla Cr 362, 228 P 498 (1928); State v. Gandee, 73 Wash2d 978, 439 P2d 400 (1968).
In addition, at least two courts faced with precedents similar to our own have expressed dissatisfaction with this construction. State v. Burke, 33 Wis2d 151, 146 NW2d 809 (1966); Campbell v. U.S., 176 F2d 45 (D.C. Cir 1949). Georgia, under a statute comparable to ORS 44.370, has limited the kinds of convictions available to impeach to crimes involving moral turpitude. Shaw v. State, 102 Ga 660, 29 SE 477 (1897).
See also McCormick on Evidence § 43 at 85-86 (2d ed 1972).
Finally, it is noted that the following twenty states by statute explicitly restrict convictions usable to impeach to felonies, crimes involving moral turpitude, or infamous crimes: California, Colorado, Delaware, Idaho, Indiana, Iowa, Kansas, Kentucky, Maine, Maryland, Massachusetts, Nebraska, Nevada, New Hampshire, New Mexico, Tennessee, Texas, Vermont, Virginia, and West Virginia.
State v. Freeman, 232 Or 267, 374 P2d 453 (1962); State v. McDonald, 231 Or 24, 361 P2d 1091, cert. den., 370 US 903, 82 S Ct 1247, 8 L Ed2d 399 (1962); State v. Long, 195 Or 81, 244 P2d 1033 (1952). These cases, however, do not involve evidence of prior convictions.
State v. Bacon, 13 Or 143, 9 P 393 (1886); State v. Chee Gong, 17 Or 635, 21 P 882 (1888); State v. Wakefield, 111 Or 615, 228 P 115 (1924). See also State v. Bilyeu, 64 Or 177, 129 P 768 (1913). Again, the conduct involved had not been the subject of a previous prosecution.
Redsecker v. Wade, 69 Or 153, 162, 134 P 5, 138 P 485, Ann Cas 1916A 269 (1914).
Discussion of this problem has most often been in the context of criminal prosecutions. Luck v. United States, 348 F2d 763 (D.C. Cir 1965); Brown v. United States, 370 F2d 242 (D.C. Cir 1966); Gordon v. United States, 383 F2d 936 (D.C. Cir), cert. den., 390 US 1029 (1967); State v. Marquez, 160 Conn 46, 273 A2d 689 (1970) ; Spaulding v. State, 481 P2d 389 (Alaska 1971); Bogie v. Commonwealth, 467 SW2d 707 (Ken 1971); People v. Montgomery, 47 Ill2d 510, 268 NE2d 695 (1971); People v. Farrar, 36 Mich App 284, 193 NW2d 363 (1972); People v. Beagle, 99 Cal Rptr 313, 492 P2d 1 (1971); State v. Santiago, 53 Hawaii 254, 492 P2d 657 (1971) ; State v. Driscoll, 43 Wis2d 851, 193 NW2d 851 (1972); McDonald v. State, 489 P2d 776 (Okla 1971); Note, Other Crimes Evidence at Trial: Of Balancing and Other Matters, 70 Yale L J 763 (1961).
Contra: State v. Hawthorne, 49 NJ 130, 228 A2d 682 (1967); State v. Morris, 460 SW2d 624 (Mo 1970); Commonwealth v. West, 357 Mass 245, 258 NE2d 22 (1970); State v. West, 285 Minn 188, 173 NW2d 468 (1969) (expressing disfavor, but feeling compelled to defer to legislature). But the same analysis applies in assessing the fairness of attacking any witness. Pedorella v. Hoffman, 91 RI 487, 165 A2d 721 (1960); M. Ladd, Credibility Tests — Current Trends, 89 U Pa L Rev 166 (1940).