dissenting.
I dissent. The evidence in the record on the issue of whether defendant established the affirmative defense that he “had not received notice of [his] suspension or revocation,” ORS 487.560(2)(b), is:
1. The envelope in which the Motor Vehicle Division had mailed a copy of the suspension order by certified mail, restricted delivery, to defendant at his address. The envelope bore the imprint of a hand pointed toward the return address of the division and the words “return to sender.” Beneath the imprint of the hand, a handwritten “X” had been placed after the word “Unclaimed”;
2. A “claim check” attached to the envelope, with the following notations:
“DATE
“4-28-83
“1st NOTICE
“5-3
“2nd NOTICE
“5-13
“ RETURN
*510“Detached from
“PS Form 3849-A
“Oct 1980”
3. The testimony of the police officer who had stopped defendant that he had said at that time that he had no knowledge of the suspension.
Only the state introduced evidence. Defendant did not testify or introduce any evidence.1
State v. Buttrey, 293 Or 575, 583, 651 P2d 1075 (1982), held that a defendant can avoid culpability for driving while suspended by establishing by a preponderance of the evidence the affirmative defense of non-receipt of notice of suspension. ORS 487.560(2)(b). The state, to avoid the effect of that defense, must establish beyond a reasonable doubt that “the defendant refused to sign a receipt for the certified mail containing the notice,” ORS 487.560(3) (a), or any of the other matters described in ORS 487.560(3).
The majority misstates defendant’s position:
“By his reading, his notice of intent to rely on an affirmative defense without more, shifted the burden to the state to prove beyond a reasonable doubt that the defense was not available to him for one of the reasons set out in ORS 487.560(3).” (Emphasis supplied.) 74 Or App at 507.
What defendant does assert is that the evidence in the record established the affirmative defense and shifted the burden to the state and that the state failed to show beyond a reasonable doubt that “the defendant refused to sign a receipt for the certified mail containing the notice” or any of the other matters set forth in ORS 487.560(3).
The first question, therefore, is whether defendant established as a matter of law by a preponderance of the *511evidence that he had not received the notice.2 The majority argues:
“There is * * * evidence of notice contained on the envelope in the form of the claim check attached to it. It allows the inference that, in accordance with Section 912.55 of the Postal Services Domestic Mail Manual, notices that mail was being held for defendant at the post office were left at his address. That defendant failed to pick up his mail, after receiving notice that it was at the post office, creates a fact question as to whether the mail was delivered, and the trial court was not bound to find that the notice was not received as a matter of law. That question of fact could be resolved against defendant.” 74 Or App at 508. (Footnote omitted.)
The evidence, however, does not show, or permit the inference, that defendant received notice of his suspension. It does not create a fact question whether he received that notice. The evidence only permits an inference that he received notices that the post office held a certified letter for him. Because he received notices that the post office held a certified letter for him does not create a question of fact whether he received notice of his suspension.
Neither does the evidence show, or permit the inference, that defendant knew, or was on notice, that the letter that the post office held was from MVD. Both parties refer to portions of the Postal Services Domestic Mail Manual, and defendant quotes portions of the manual in his brief. Although it was not in evidence, both parties assume that we may take judicial notice of it. OEC 201(f). Section 912.55 of the manual provides:
“Notice of Arrival. The carrier will leave a notice of arrival on Form 3849-A, Delivery Notice or Receipt, if he cannot deliver the certified article for any reason. The article will be brought back to the post office and held for the addressee. If the article is not called for within 5 days, a second notice on Form 3849-B, Delivery Reminder or Receipt, will be issued. If the article is not called for or its redelivery requested, it will'be *512returned at the expiration of the period stated by the sender, or after 15 days if no period is stated.”
The contents of Forms 3849-A and 3849-B are not described in the manual. The manual does not disclose if either of those forms advises the addressee of the sender’s identity. Indeed, Section 911.4 of the Manual allows only the contrary inference. It provides:
“PROCEDURE [for registered and certified mail] The addressee or a person representing him may obtain the name and address of the sender, and may look at registered mail while it is held by the postal employee before accepting delivery and signing the delivery receipt. * * * The mail will not be given to the addressee until the delivery receipt is obtained by the postal employee. * * *”
There is no evidence in the record that defendant had actually received notice of the suspension. All of the evidence, including the envelope in the post office’s possession marked “Unclaimed,” is that he did not receive it. The state does not claim that the court which had heard the earlier charge had informed defendant that it was ordering a suspension of his license. The state introduced no evidence whatever to support an inference that defendant had gone to the post office, had looked at the envelope that the postal service held, had refused to sign a receipt for the certified mail containing the notice or had known the contents of the certified mail.3
On the evidence in this record, defendant did not receive notice of suspension. The majority’s conclusion that defendant did not establish as a matter of law by a preponderance of the evidence that he did not receive the notice of suspension is purely arbitrary. Moreover, the state failed to *513offer evidence in its case in chief or in rebuttal that could deprive defendant of the affirmative defense of non-receipt.4
The court erred when it denied defendant’s motion for acquittal.
Richardson, Buttler and Warren, JJ, join in this dissent.
At the close of the evidence defendant argued that he had established his affirmative defense and that the state had not introduced any evidence of a statutory exception to override that defense. See ORS 487.560(3)(a) through (d). The parties and the court treated the argument as a motion for judgment of acquittal. The state does not contend that the claim of error was not preserved.
The majority quotes ORS 482.570 and emphasizes the description of how “service of the notice is accomplished.” Proof that the state “served” a notice of suspension in accordance with ORS 482.570, however, does not establish that defendant “received” it. Otherwise, the language of ORS 487.560(2)(b), (3)(a) and (b) would be surplusage, and Buttrey would be meaningless.
The trial court stated:
“Simply because the prosecutor’s evidence shows that the defendant failed to claim the letter isn’t sufficient to establish an affirmative defense, in my opinion.
“It may have been unclaimed — who says it wasn’t received? Suppose he received it, stuck it back in the envelope, and told the guy, ‘Look, here’s five bucks. Take it back. I don’t want it. Just return that it’s un- Make it unclaimed. Stamp unclaimed on there. I see that it comes from the Department of Motor Vehicles.’ Then there’s no evidence in this case that he didn’t — produced by you — that he didn’t received notice. That’s my ruling.”
The court was simply speculating.
Compare State v. Stroup, 290 Or 185, 620 P2d 1359 (1980).