concurring specially.
[¶ 39] Although I have serious misgivings about the result of the majority opinion, I nevertheless concur in that result.
[¶ 40] The crime of reckless driving is found in N.D.C.C. tit. 39. The lack of criminal responsibility statutes are found in N.D.C.C. tit. 12.1. In City of Dickinson v. Mueller, 261 N.W.2d 787, 789 (N.D.1977), this Court held that N.D.C.C. § 12.1-02-02(2), providing that if there is no culpability prescribed in a statute, the culpability that is required is willfully, “applies only to the offenses or crimes described in Title 12.1, N.D.C.C., and therefore does not apply to Section 5-02-06, N.D.C.C.” In State v. North Dakota Education Association, 262 N.W.2d 731, 733-34 (N.D.1978), this Court held that N.D.C.C. § 12.1-02-02 did not apply to a crime under ch. 16-20, the Corrupt Practices Act. See N.D.C.C. § 12, 1-02-02 (“For the purposes of this title....”). Nevertheless, in Snortland v. Crawford, 306 N.W.2d 614, 622 (N.D.1981), the Court concluded that the term “knowingly” as defined in N.D.C.C. § 12.1-02-02(l)(b) should apply to that term as it was used in N.D.C.C. § 16-20-17.3. Under our precedent, I cannot disagree with the majority’s use of the definition of the term “recklessly” as used in N.D.C.C. § 12.1-02-02(1) to define that term as it is used in N.D.C.C. § 39-08-03. I also agree that State v. Olson, 356 N.W.2d 110 (N.D.1984), is distinguishable in that, like State v. North Dakota Education Association, the statute at issue in Olson contained no term of culpability.
[¶ 41] While I believe our statutes and our prior decisions lead to the result reached by the majority opinion, I am not entirely convinced that is what our Legislature intended. It is as rational to construe the term “recklessly” as used in N.D.C.C. § 39-08-03 to define the nature of the driving as it is to construe the term to refer to the culpability of the driver. Nevertheless, I agree with the majority that if a criminal statute is ambiguous, we construe it in favor of the defendant.
[¶ 42] Finally, I note this issue arose in the trial court with regard to whether or not the defendant would be permitted to introduce evidence of her mental health to show a lack of criminal responsibility. The lack of criminal responsibility is not an affirmative defense; rather, once evidence of lack of criminal responsibility is introduced into a trial, it becomes the burden of the State to affirmatively prove the defendant had the requisite intent to commit the crime. State v. Johnson, 2001 ND 184, 636 N.W.2d 391. Thus, under N.D.C.C. § 12.1-04.1-01(1), whenever evidence of any mental disease or defect is introduced in a case charging reckless driving, it will be the burden of the State to prove there was no mental disease or defect.
[¶ 43] In light of the number of drivers on the streets and highways, the charge of reckless driving is a somewhat ubiquitous offense carrying a penalty of a class B misdemeanor. In order to convict for that offense the State may now be required to engage expert witnesses to prove the defendant had the requisite intent to drive recklessly. But, notwithstanding the mental state of the defendant, a person who drives in a foolhardy manner is a menace to the many other people using the streets *224and highways. Under N.D.C.C. § 39-06.1-10, a conviction of reckless driving in violation of § 39-08-03 results in the assignment of eight points against the license of the defendant. The accumulation of twelve points results in the suspension of the defendant’s license to drive. I assume the provisions of N.D.C.C. tit. 39 are intended to make the streets and highways safe and to keep dangerous drivers off the road. I doubt our decision today furthers that purpose.
[¶ 44] GERALD W. VANDE WALLE, C.J.