dissenting. Today, the majority wipes out twenty years of precedent wherein this court has held that the “burden of proof” referred to in General Statutes § 2 la-269 refers to the burden of going forward, and once the defendant meets that burden with substantial evidence, the state has the burden of persuasion, that is, proof beyond a reasonable doubt.1 But far more important than abandoning this precedent is the constitutional consequence when the majority’s interpretation is applied to General Statutes § 21a-278 (b)—that is, it violates the defendant’s federal constitutional right to due process of the law under the fourteenth amendment—which I shall review first.
I
The majority holds that the burden of persuading the jury that the defendant “is not at the time of such action [in this case, a sale of cocaine] a drug-dependent person,” as provided in § 2 la-278 (b)2 is placed upon the defendant pursuant to § 21a-269. Section 21a-269 provides: “In any complaint, information or indictment, and in any action or proceeding brought for the enforcement of any provision of this part, it shall not be necessary to negative any exception, excuse, proviso or *615exemption contained in said section, and the burden of proof of any such exception, excuse, proviso or exemption shall be upon the defendant.” Such an interpretation of §§ 21a-278 (b) and 21a-269 violates the due process clause because whether a defendant is drug-dependent is clearly an element of the crime under § 21a-278 (b).
The United States Supreme Court in In re Winship, 397 U.S. 358, 364, 90 S. Ct. 1068, 25 L. Ed. 2d 368 (1970), made crystal clear that “the Due Process Clause protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged.” In making the determination of what facts the state must prove beyond a reasonable doubt to constitute the crime, the majority of the United States Supreme Court has held that “the state legislature’s definition of the elements of the offense is usually dispositive . . . .” McMillan v. Pennsylvania, 477 U.S. 79, 85, 106 S. Ct. 2411, 91 L. Ed. 2d 67 (1986). Nevertheless, “there are obviously constitutional limits beyond which the States may not go in this regard.” Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977).3
The majority relies on McMillan v. Pennsylvania, supra, for its position that drug dependency is not an element of the crime, but their reliance is misplaced. In McMillan, the Pennsylvania statutes provided that if a defendant is convicted of certain enumerated felo*616nies and the sentencing judge finds by a preponderance of the evidence the defendant’s visible possession of a firearm during the commission of the felony, he or she would then be subject to a mandatory minimum sentence. The court pointed out that “the Pennsylvania Legislature has expressly provided that visible possession of a firearm is not an element of the crimes enumerated in the mandatory sentencing statutes, § 9712 (b), but instead is a sentencing factor that comes into play only after the defendant has been found guilty of one of those crimes beyond a reasonable doubt.” (Emphasis added.) Id., 85-86. The Pennsylvania legislature specifically provided that “§ 9712 only becomes applicable after a defendant has been duly convicted of the crime for which he is to be punished.” Id., 87. This is not the case in regard to § 21a-278 (b); the provision of not being drug-dependent is an integral part of the statute clearly making it an element of the crime.
This case comes within Mullaney v. Wilbur, 421 U.S. 684, 95 S. Ct. 1881, 44 L. Ed. 2d 508 (1975). In Mulaney, the Maine statute required “a defendant charged with murder to prove that he acted ‘in the heat of passion on sudden provocation’ in order to reduce the homicide to manslaughter,” and, thereby reduce the maximum possible sentence. Id., 684-85. The United States Supreme Court held that the state was required to prove the lack of “the heat of passion” beyond a reasonable doubt as an element of the crime. Id., 704. Likewise, under our statute, the provision of lack of drug dependency results in a difference in the sentence. Section 2 la-278 (b) provides that a defendant who is not drug-dependent is subject to a prison term for a minimum of “not less than five years nor more than twenty years” for a first offense. (Emphasis added.) If a defendant is charged under General Statutes § 21a-277 (a), which is identical to § 21a-278 (b) but does not require the defendant to be drug-dependent, he or *617she is subject for the first offense to a prison term of “not more than fifteen years." 4 (Emphasis added.) Accordingly, as in Mullaney, it becomes an element of the crime and the state must prove that the defendant was not drug-dependent beyond a reasonable doubt once appropriately raised by the defendant.
This distinction was underscored in McMillan when the court stated: “The Court in Mullaney observed, with respect to the main criminal statute invalidated in that case, that once the State proved the elements which Maine required it to prove beyond a reasonable doubt the defendant faced ‘a differential in sentencing ranging from a nominal fine to a mandatory life sentence.’ [Mullaney v. Wilbur, supra, 700.] In the present case the situation is quite different. Of the offenses enumerated in the Act . . . [several] are first-degree felonies subjecting the defendant to a maximum of 20 years’ imprisonment. [Section] 1103 (1). . . . Section 9712 neither alters the maximum penalty for the crime committed nor creates a separate offense calling for a separate penalty; it operates solely to limit the sentencing court’s discretion in selecting a penalty within the range already available to it without the special finding of visible possession of a firearm. Section 9712 ‘ups the ante’ for the defendant only by raising to five years the minimum sentence which may be *618imposed within the statutory plan. The statute gives no impression of having been tailored to permit the visible possession finding to be a tail which wags the dog of the substantive offense. Petitioners’ claim that visible possession under the Pennsylvania statute is ‘really’ an element of the offenses for which they are being punished—that Pennsylvania has in effect defined a new set of upgraded felonies—would have at least more superficial appeal if a finding of visible possession exposed them to greater or additional punishment, cf. 18 U.S.C. § 2113 (d) (providing separate and greater punishment for bank robberies accomplished through ‘use of a dangerous weapon or device’), but it does not. ” (Emphasis added.) McMillan v. Pennsylvania, supra, 87-88.
Although the state may place the burden of production on the accused, the state clearly cannot shift the burden of persuasion to relieve itself of the obligation to prove each element of the crime beyond a reasonable doubt, even though the clause in dispute would only affect the penalty. The court in Mullaney observed: “The safeguards of due process are not rendered unavailing simply because a determination may already have been reached that would stigmatize the defendant and that might lead to a significant impairment of personal liberty. The fact remains that the consequences resulting from a verdict of murder, as compared with a verdict of manslaughter, differ significantly. Indeed, when viewed in terms of the potential difference in restrictions of personal liberty attendant to each conviction, the distinction established by Maine between murder and manslaughter may be of greater importance than the difference between guilt or innocence for many lesser crimes.” Mullaney v. Wilbur, supra, 698.
It is also clear under our state law that the lack of drug dependency is an element of § 2 la-278. When a *619statute is ambiguous, we should look to the legislative history. State v. Champagne, 206 Conn. 421, 428, 538 A.2d 193 (1988). It becomes apparent that the legislature intended non-drug dependency to be an element of § 21a-278 (b). When introducing the legislation, the House chairman of the Judiciary Committee explained that “the problem with [§ 2 la-277 (a)] is the fact that in many instances, the seller who is not a drug addict is given a suspended sentence . . . . What this bill says is that insofar as the person who is not a drug addict, if he sells, he shall go to jail for not less than ten [presently amended to five] years for the first offense . . . .” 14 H.R. Proc., Pt. 10, 1971 Sess., p. 4613 (Representative John Carrozzella). More importantly, the establishment of § 21a-278 sets the mandatory maximum sentence for a conviction of possession with intent to sell by a person who is not drug-dependent at twenty years for a first offense, while a similar conviction pursuant to § 21a-277 carries a mandatory maximum sentence of fifteen years for a first offense. Moreover, the bill’s sponsor stated that the “intent of the bill is to give the state’s attorney and the prosecuting attorney an opportunity to charge an additional crime which does carry a harder sentence which goes towards imprisoning the person who is not drug-dependent and who is, in fact, selling drugs for a profit.” 14 H.R. Proc., Pt. 10, 1971 Sess., pp. 4616-17 (Representative Bernard Avcollie). Therefore, it is clear that the legislature intended § 21a-278 to be an added weapon in the state’s attorneys’ arsenal, to be used in addition to § 21a-277, with which they could charge sellers of drugs who are not drug-dependent.5 Any remaining question that the *620legislature intended the absence of drug dependency to be an element of § 21a-278 is resolved by Representative Avcollie’s statement that “in order to charge under this law, a state’s attorney . . . would have to take advantage of the existing law . . . and have the party arrested and examined for drug dependency. In other words, you would first have to prove that he was or was not addicted and then charge him with the crime.” 14 H.R. Proc., Pt. 10, 1971 Sess., p. 4622.
Accordingly, this court’s holding in State v. Januszewski, 182 Conn. 142, 166-69, 438 A.2d 679 (1980), cert. denied, 453 U.S. 922, 101 S. Ct. 3159, 69 L. Ed. 2d 1005 (1981), was incorrect. Although the court in Januszewski set forth the correct analytical framework, it failed to apply it properly. The court stated: “Whether the existence of some fact is an essential element of a crime depends upon whether the existence of that fact forms a part of the conduct prohibited by the statute . . . .” Id., 165. This court, however, then went on to hold that drug dependency was not an essential element of § 21a-278 (b) because “[i]t is not part of the prohibited conduct, i.e., the possession of a certain quantity of a narcotic substance with the intent to sell.” Id., 166. In this case, the prohibited conduct is sale of an illegal substance by a person who is not drug-dependent. Clearly, the legislature intended the absence of drug dependency to be an element because, as revealed by the legislative intent, this statute was promulgated for the sole purpose of making the charge of possession with intent to sell by a person who is not drug-dependent subject to more severe penalties than already available under existing law. This is further underscored because without this clause, *621§ 21a-278 (b) would be virtually identical to § 21a-277, and, as applied in the present case, the statutes are indeed identical.
Additionally, the majority claims that § 2 la-269 is free from ambiguity because the legislature placed the “burden of proof” on the defendant. Their claim simply does not make it so. The majority concedes that the words “burden of proof,” as used in § 21a-269, can be and have been construed to mean the burden of production, as well as the burden of persuasion.6 Under these circumstances, we must resort to statutory construction. In doing so, established rules of construction must be followed.
First, it is axiomatic that “[c]riminal statutes are not to be read more broadly than their language plainly requires and ambiguities are ordinarily to be resolved in favor of the defendant.” State v. McGann, 199 Conn. 163, 177, 506 A.2d 109 (1986). Clearly, under this rule of construction the phrase “burden of proof” must be construed to mean that the defendant merely has the burden of going forward with the evidence and that once he or she comes forward with substantial evidence of drug dependency, the state must prove beyond a reasonable doubt that the person is not drug-dependent.
Second, Professor Colin C. Tait points out in his scholarly work on Connecticut evidence the following: “If an exception is an integral part of the enacting or prohibition clause of a criminal statute, it is deemed an essential element of the crime, and the state must plead and prove that the defendant is not within the exception. State v. Anonymous, 179 Conn. 516, 519-20, 427 A.2d 403 (1980); State v. Beauton, 170 Conn. 234, 240, 365 A.2d 1105 (1976). Where an exception to a prohibition is situated separately from the enacting *622clause, the exception is to be ‘proven by the defense.’ State v. Tinsley, 181 Conn. 388, 402, 435 A.2d 1002 (1980).” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.5.3 (g).7
Finally, the legislature’s intention that the lack of drug dependency be treated as an element is underscored by its inaction. In the twenty years that we have ruled that § 21a-269 referred only to the burden of production, the legislature has not acted. “ ‘[W]e presume that the legislature is aware of our interpretation of a statute, and that its subsequent nonaction may be understood as a validation of that interpretation ....’” (Citations omitted.) McDonough v. Connecticut Bank & Trust Co., 204 Conn. 104, 119, 527 A.2d 664 (1987); see Phelps Dodge Copper Products Co. v. Groppo, 204 Conn. 122, 134, 527 A.2d 672 (1987).
II
Notwithstanding the significant constitutional transgression, the majority decision defies precedent clearly established by this court. In 1972, this court made it crystal clear in State v. Brown, 163 Conn. 52, 65, 301 A.2d 547 (1972), that “Section 19-474 [now § 21a-269] removes from the state the obligation to come forward with evidence on the defendant’s lack of a license in the first instance—but it does not alter its duty to prove a lack of authorization to deal in narcotic drugs when the question of license becomes an issue in the case.” See also State v. Thompson, 197 Conn. 67, 79, 495 A.2d 1054 (1985) (§ 19-474 [now § 21a-269] places burden on defendant to prove existence of impaired mental capacity under exception in § 19-480a (a) [now § 21a-278 (a)]); *623State v. Januszewski, supra, 169 (once defendant introduces substantial evidence of drug dependency, burden shifts to state to prove beyond a reasonable doubt that defendant is not entitled to exception); State v. Clark, 164 Conn. 224, 229, 319 A.2d 398 (1973) (defendant has initial burden to introduce evidence regarding exception for authorized sale of narcotics); State v. Ober, 24 Conn. App. 347, 354, 588 A.2d 1080, cert. denied, 219 Conn. 909, 543 A.2d 134, 135 (1991) (defendant has burden of introducing “ ‘some substantial evidence tending to prove his drug dependency’ ”).
Other jurisdictions have concluded that their versions of the exception statute found in the Uniform Controlled Substances Act (formerly the Uniform Narcotic Drug Act) do not place the burden of persuasion upon the defendant. See People v. Hudson, 130 Ill. App. 2d 1033, 1040, 266 N.E.2d 481 (1970), rev’d on other grounds, 50 Ill. 2d 1, 276 N.E.2d 345 (1971), cert. denied, 405 U.S. 965, 92 S. Ct. 1176, 31 L. Ed. 2d 241 (1972) (“It places a definite burden upon the defendant to prove the applicability of any exception contained in our Uniform Narcotic Drug Act. No burden is put upon the State, with respect to an exception, until such time as the defendant introduces evidence to show that an exception is applicable.”); State v. Gibbs, 239 N.W.2d 866, 869 (Iowa 1976) (“the reach of § 204.507 (1) must be limited to a requirement that defendant produce some evidence he is within a statutory exception before the State is obligated to assume the burden to negate the exception beyond a reasonable doubt”); Elkins v. State, 543 S.W.2d 648, 650 (Tex. Crim. App. 1976) (exception statute does not shift burden of persuasion from the state to the accused; “[t]he burden of proof does not change simply because the accused has the burden of producing evidence to establish a defensive plea”).
*624III
The majority attempts to justify its position on the grounds that the state is disadvantaged “because it has no method by which to discover whether drug dependency will be an issue at trial.” I was not aware that the state’s convenience should dictate whether a person has either a constitutional or statutory right. “ ‘The argument from convenience is admissible only where the inference is a permissible one, where the defendant has more convenient access to proof, and where requiring him to go forward with proof will not subject him to unfairness or hardship.” Tot v. United States, 319 U.S. 463, 469, 63 S. Ct. 1241, 87 L. Ed. 1519 (1943). The court can correct any disadvantage by changing its rules to require that the defendant furnish notice before trial that he or she intends to raise the issue of drug dependency. See Practice Book §§758 and 759 (defendant must notify prosecuting authority if he or she intends to introduce expert testimony regarding mental disease or defect). The mere failure to adopt rules of procedure should not give this court a license to deprive a defendant of his or her constitutional rights.
We deal with fundamental rights that should not be taken lightly. Significant federal constitutional issues were raised by the defendant, yet unfortunately the majority disposes of them in a cursory manner. Furthermore, in one stroke of its pen, the majority wipes out twenty years of precedent that no one had questioned. Indeed, the burden of proof was not a certified issue when we granted the petition for certification to appeal from the Appellate Court, and it is only through the majority’s judicial activism that this issue is now before the court. Although I believe that the entire court should have sat en banc when this issue was raised (in addition to allowing supplemental briefs and oral *625argument) for the purpose of affording the people of the state of Connecticut the benefit of the views of all of our justices, only rebriefing was ordered. If any matter is important enough to be heard by this court, it should be decided by all the justices. Accordingly, I dissent.
“The phrase ‘burden of proof is used in two ways. First, to refer to the burden of persuading the jury that a fact exists, and second, to refer to the burden of producing sufficient evidence to persuade the judge to allow the case or issue to go to the jury, viz., that a prima fade case exists. Sortito v. Prudential Ins. Co., 108 Conn. 163, 171, 142 A. 808 (1928); Baxter v. Camp, 71 Conn. 245, 252-53, 41 A. 803 (1898). The burden of persuasion creates a risk of an adverse decision on the merits by the jury, whereas the burden of going forward or producing evidence creates a risk that the judge will withdraw the case or an issue from the jury.” C. Tait & J. LaPlante, Connecticut Evidence (2d Ed. 1988) § 4.1.1.
See footnote 1 of the majority opinion for the relevant part of the text of General Statutes § 21a-278.
Patterson v. New York, 432 U.S. 197, 210, 97 S. Ct. 2319, 53 L. Ed. 2d 281 (1977), pointed out some of those limitations as follows: “ ‘[I]t is not within the province of a legislature to declare an individual guilty or presumptively guilty of a crime.’ McFarland v. American Sugar Co., 241 U.S. 79, 86 [36 S. Ct. 498, 60 L. Ed. 899] (1916). The legislature cannot ‘validly command that the finding of an indictment, or mere proof of the identity of the accused, should create a presumption of the existence of all the facts essential to guilt.’ Tot v. United States, 319 U.S. 463, 469 [63 S. Ct. 1241, 87 L. Ed. 1519] (1943).” McMillan v. Pennsylvania, 477 U.S. 85, 87, 106 S. Ct. 2411, 96 L. Ed. 2d 67 (1986).
General Statutes § 21a-277 provides in relevant part: “(a) Any person who manufactures, distributes, sells, prescribes, dispenses, compounds, transports with the intent to sell or dispense, possesses with the intent to sell or dispense, offers, gives or administers to another person any controlled substance which is a hallucinogenic substance other than marihuana, or a narcotic substance, except as authorized in this chapter, for a first offense, shall be imprisoned not more than fifteen years and may be fined not more than fifty thousand dollars or be both fined and imprisoned; and for a- second offense shall be imprisoned not more than thirty years and may be fined not more than one hundred thousand dollars, or be both fined and imprisoned; and for each subsequent offense, shall be imprisoned not more than thirty years and may be fined not more than two hundred fifty thousand dollars, or be both fined and imprisoned.”
If the absence of drug dependency had not been intended as an element of General Statutes § 21a-278, then surely the legislature, in passing a statute allowing the state’s attorney to charge “an additional crime,” would have implicated a criminal defendant’s right against multiple convictions for the same offense. Without the drug dependency clause, the statute is identical to General Statutes § 21a-277 for double jeopardy purposes; in *620the present ease, the defendant was charged and ultimately convicted under both statutes. The majority, however, does not address the double jeopardy implications of its decision.
See footnote 1, supra.
Moreover, the state’s recognition of the absence of drug dependency as an element of General Statutes § 21a-278 is apparent from the content of its information providing that “the said Veronica Hart was not a drug-dependent person.”