specially concurring.
I agree that the failure to instruct on the statutory presumption requires reversal. Since the case is to be retried, I add a few words of elaboration on the second requested instruction.
This court has held that it is proper to instruct a jury in a civil case that the law prohibits driving under the influence of intoxicants or with more than a proscribed percentage of alcohol in one’s blood. Cuts-*333forth v. Kinzua Corp., 267 Or 423, 437-438, 517 P2d 640 (1973). One who drives when the law prohibits his driving at all may perhaps assert that he did not drive carelessly, but hardly that he drove without fault. ORS 18.470.1 Nor can he assert that his forbidden driving was not a cause of the collision, when we use "cause” correctly to refer to factual causation. Motor vehicle laws direct operators of automobiles to take various precautions which may or may not be relevant to a particular occurrence, but in the case of the "drunk driving” laws (as in that of a driver whose license has been suspended or revoked) it is the driving that the law prohibits.2 How much fault should be attributed to the forbidden driving the comparative fault statute, ORS 18.470, leaves to the jury.3
ORS 18.470:
"Contributory negligence shall not bar recovery in an action by any person or his legal representative to recover damages for death or injury to person or property if the fault attributable to the person seeking recovery was not greater than the combined fault of the person or persons against whom recovery is sought, but any damages allowed shall be diminished in the proportion to the percentage of fault attributable to the person recovering. This section is not intended to create or abolish any defense.”
Now ORS 487,540. Cutsforth v. Kinzua Corp., supra, distinguishes between such rules as the requirement of having proper lights or a rearview mirror and an allegation, not made in that case, that a vehicle could not be used lawfully on the highway at all, 267 Or at 429-433. A similar distinction might be recognized, for instance, between driving with an expired operator’s or vehicle license and after a license has been suspended or revoked. The test is whether the policy of the legislative prohibition is to forestall the type of harm that occurred, id. at 438.
This case was tried immediately after the 1975 revision of ORS 18.470, on pleadings filed before the revision. Thus the pertinence of the requested instructions to the issue of fault rested solely on pleaded specifications of negligence such as speed, lookout, control, and right-of-way. Cutsforth v. Kinzua Corp., supra, also refers to the trial court’s discretion to permit amendment of the pleadings, 267 Or at 431,433-434; ORS 16.390.