dissenting.
The trial court convicted defendant because he left the scene before reporting that he had damaged a hydrant. The court held:
“I find, given these facts, that defendant should have reported the accident before he moved his car and left the scene. Accordingly, I find the defendant guilty of failure to perform the duties of a driver.”
The majority correctly acknowledges that ORS 811.700(1)(c) imposes no duty on a driver who damages property ádjacent to the highway to remain at the scene or report the accident *591before moving the car. Nevertheless, it affirms. Because I cannot rationalize convicting defendant for violating a duty that the law does not impose, I dissent.
The majority opinion omits important facts. Within Officer Sweet’s plain view, defendant freed his car from the hydrant at 12:30 a.m. and drove away. She followed him for three-fourths of a block and, within moments of his departure, arrested him. Sweet testified that neither she nor the fire department owned the hydrant. She “guessed” that the city’s public works department owned it. Aside from that “guess,” the record does not disclose the identity of the person or city agency to whom a damaged property report should have been made or whether defendant could have contacted that person or agency at 12:30 a.m. if he had tried.
We held in State v. Porter, 95 Or App 373, 374, 768 P2d 940, rev den 308 Or 33 (1989), that, under ORS 811.700(1)(e), “[i]t is left to the finder of fact to determine only whether the steps taken to provide the information to the owner or person in charge” is reasonable.
The majority reasons that because defendant made a misleading statement about his plan to report the damage from a convenience store, the court could infer that he did not intend to report it at all. However, the statute punishes a failure to take reasonable steps to report. The issue is whether he arguably had violated that standard by the time he was arrested. His statement about his intended course of action, even if false, is irrelevant to whether his acts prior to arrest amounted to a failure to take reasonable steps to report.
The majority next observes that defendant could have reported the accident to the officer. Officer Sweet’s testimony defeats any inference that that could have satisfied the duty. The state did not establish any other reasonable step that he could have taken to report damage or to whom such a report could have been made at 12:30 a.m.
Finally, the majority says that “[h]e had reasons not to want to report the accident: His driver’s license was suspended, and he was driving under the influence of intoxicants.” 115 Or App at 590. That statement may serve to vilify defendant, but it adds nothing to a legal analysis under ORS *592811.700(1)(c). If defendant’s conduct is not punishable, abad motive cannot change the conclusion.
Both the majority and the state concede that ORS 811.700(1)(c) does not obligate a driver to remain at the scene of an accident that damages property near a highway. Although defendant was entitled to drive away, he was quickly arrested and was convicted because he departed. The affirmance of this conviction can only lead to further prosecutions under ORS 811.700(1)(c) for conduct that is not made punishable by law.
I dissent. Richardson and Riggs, JJ., join in this dissent.