dissenting.
The majority holds that the Oregon legislature made a felon of a person who drives a motor vehicle on an Oregon highway when his or her license to do so has been suspended, whether the driver knows of the suspension or not. According to the majority, if unknown to Mrs. Buttrey someone in the Motor Vehicles Division suspended or revoked her driver’s license, even by an error, she nevertheless engaged in a crime that might send her to a prison if she drove her car in the good faith belief that she had a valid license.
The legislature did no such thing. The legislature did something very different: It rearranged the burdens of litigating in a subsequent trial whether the driver had notice or otherwise knew of the suspension. The statutes do not say that the driver’s knowledge of the suspension is not material to her guilt at the time she actually drives the car, in other words when the alleged crime is committed. The rearrangement of the burden at trial does not make the act of driving under such circumstances a crime that involves no culpable mental state, a crime that is committed in ignorance of a license suspension. Yet this is what the majority would have us believe.
*591It is crucial not to confuse two different questions: one, whether knowledge of the suspension is an element of the crime at the time of its commission, and the other, whether this knowledge is an element of the state’s proof at the time of trial. The majority opinion goes to elaborate lengths to show that the legislature intended to free the prosecution from having to prove that a defendant knew of the suspension. The demonstration is misdirected; it is not disputed that the state wished to free itself from that burden in prosecutions for “driving while suspended” and persuaded the legislature to shift the burden by making failure to notify the defendant an affirmative defense. The only issue is what retaining ignorance of the suspension as a defense, in other words, retaining the material element of knowledge at the time of driving, means for the application of the Oregon Criminal Code of 1971 and its constitutionality.
As the majority recognizes, the 1971 code took great pains to spell out its commitment to the principle that criminal guilt and serious criminal penalties should not be imposed for conduct that is entirely free from any blameworthy mental state. The code expressly states its purpose to define the act or omission “and the accompanying mental state that constitute each offense and limit the condemnation of conduct as criminal when it is without fault.” ORS 161.025(l)(d). The report of the Oregon Criminal Law Revision Commission (July 1970) at page 11, stated with respect to the culpability provisions:
“Perhaps the single most basic part of the Code is the culpability part of it. . . .
“The Commission follows the Model Penal Code in expressing a policy adverse to use of “strict liability” concepts in criminal law, whenever the offense carries a possibility of sentence of imprisonment.
“This position relates not only to offenses defined by the criminal code itself, but covers the entire body of state law, so far as penal sanctions are involved.”1
*592This policy against strict liability crimes was enacted in exceptionally explicit and systematic provisions of the criminal code, ORS 161.095-161.115. Their object was to limit criminal offenses to those committed with a culpable mental state, and to reduce misconduct without culpability to the level of noncriminal “violations” which would be punishable only by fines and which would require a culpable mental state only if a statute so prescribed.2 The code recognized, however, that the legislature might expressly provide for strict liability for some among the many offenses created by penalty provisions of statutes outside the criminal code. It therefore provided in ORS 161.105(1)(b) for an exception from the policies prescribed *593in ORS 161.095 and 161.115 when “[a]n offense defined by a statute outside the Oregon Criminal Code clearly indicates a legislative intent to dispense with any culpable mental state requirement for the offense or for any material element thereof.” It is this exception that the state invokes here.
Two things should be noted about this provision for overriding the code’s strong policy against strict liability crimes. First, it requires a legislative intent to dispense with any requirement of culpability in committing the crime in question. ORS 161.105(l)(b) refers to such a requirement “for the offense,” not “for proof of the offense.” It refers to the elements of guilt, not of procedure. It is at the time of the accused’s act that an offense either does or does not require a culpable mental state, not at the time of trial. Second, ORS 161.105(1) (b) requires that this legislative intent to dispense with any culpability in making one guilty of a crime must be “clearly” indicated. It is not to be implied. The statutory presumption is against such an intent. If the legislature means to create a genuine strict liability crime, not merely to lighten the state’s burden of proof, it needs to say so “clearly.” If the statute outside the criminal code does not clearly dispense with a culpable mental state in defining an offense, one of two consequences follows: The offense either constitutes a violation by virtue of ORS 161.105(2), or if a statute enacted after January 1, 1972, makes the offense a crime, then it nevertheless requires a culpable mental state by virtue of ORS 161.115(2).
Those are the purposes and the principles of construction prescribed by the criminal code with respect to culpability. In the light of these purposes and principles, does ORS 487.560 clearly show a legislative intent to dispense with requiring any culpable mental state for criminal guilt of driving when one’s license has been suspended or revoked?
The majority cannot say that ORS 487.560 dispenses with the requirement in so many words, because it does not. So the opinion merely notes that the statute does not expressly prescribe a culpable mental state. That alone proves nothing, because this is exactly the situation for *594which the authors of the code, in the cited sections, prescribed such a requirement unless the offense is to be a noncriminal violation.
Next the majority opinion turns to the fact that subsection (2) (b) of ORS 487.560 provides an affirmative defense if the defendant had not received notice of the license suspension or revocation either in a court appearance or by certified mail as prescribed in the Motor Vehicle Code.3 Subsection (3) of the statute, in turn, negates this affirmative defense if the state can show that the defendant nevertheless had actual knowledge of the suspension or revocation or had himself prevented the delivery of notice of it. But far from supporting the conclusion that knowledge is immaterial to guilt of “driving while suspended,” these provisions contradict it.
First, what the legislature made an affirmative defense in subsection 2(b) is a showing that defendant had not received proper notice. It is not the defendant’s lack of actual knowledge. Second, however, the driver loses this affirmative defense and his guilt is established if the state proves that he knew that his license was suspended.
Why would the legislature establish this elaborate scheme of affirmative defense and rebuttal if the driver’s knowledge of the license suspension at the time of the alleged offense is immaterial to his guilt? The obvious answer is that it would not do so. The legislature did not *595consider the driver’s knowledge immaterial to his guilt. It wanted the accused to shoulder the burden of showing his lack of knowledge, and thereby his blamelessness, by proving that he was not notified of the suspension, though the defense would fail if he knew of the suspension apart from official notice.4 Proper notification of the driver is not itself an element of the offense, and we so held in State v. Stroup, 290 Or 185, 620 P2d 1359 (1980). The reason for making it a potential defense, unless overcome by proof of actual knowledge (or frustration of notice by the accused), is that the driver’s knowledge of the suspension remains material to the substantive issue: whether the driver was guilty of a crime when he drove the vehicle.5
The state argued, and the majority opinion repeats, that the legislature wished to deal with a “massive social problem” of controlling dangerous drivers whose licenses had been suspended. That is not in doubt, but it does not answer the question whether the legislature decided to do so by convicting nonculpable persons or by shifting to the driver the burden to show lack of culpability by proving failure of notice. Despite all the assertions about legislative history, the only relevant statement quoted by the state and by the majority opinion, that of Mr. Paillette to the House Judiciary Committee, did not say that a driver’s knowledge of his license suspension was not an element of the offense. It explained that proof of knowledge was not an element. This merely identifies, it does not resolve, the ambiguity which renders ORS 487.560 less than “clearly” a decision to create a strict liability offense.
*596The majority opinion emphasizes the intent of the legislature to free the state from the burden of proving that the driver was aware that he or she no longer had a valid license to do so. An intent to shift the burden of proof does not bring a statute within the exception of ORS 161.105(l)(b) so as to escape the principles of culpability stated in ORS 161.095 and 161.115(2). If the intended shift were otherwise effective, it would raise serious questions of due process to make a defendant disprove a mental element that remains material to guilt of the offense. But it is our obligation to avoid interpreting statutes in a way that creates serious doubts of their constitutionality. State v. Blake, 292 Or 486, 640 P2d 605 (1982); Tharalson v. State Department of Revenue, 281 Or 9, 13, 573 P2d 298 (1978). Fortunately that is not difficult here. There is no need to reach a constitutional issue, for ORS 161.115(2) itself continues to require proof of the driver’s culpable mental state — in this case, the intent to drive a vehicle and the knowledge that her license to do so was suspended.
ORS 161.115(2) applies “[e]xcept as provided in ORS 161.105.” And ORS 161.105 does not apply here. ORS 487.560 does not “clearly” or otherwise show that the legislature intended to dispense with a culpable mental state, knowledge of the suspension, in committing the crime of “driving while suspended.” It intended to dispense with proof of that knowledge, unless the accused first proved that she did not receive official notice of the suspension. That is a very different thing. Both the defense of lack of notice and the state’s opportunity to override that defense by showing actual knowledge prove that the legislature thought the driver’s awareness of the license suspension very much a factor in her guilt or innocence.
Much more is at stake here than a technical parsing of statutes. The principle that no one who is innocent of blameworthy conduct should be punished for a serious crime is central to modern criminal law. It is expressly recognized in the Oregon Criminal Code of 1971. The legislature did not abandon this familiar principle of guilt in ORS 487.560 and make “driving while suspended” a crime even without knowledge of the suspension.
There is a great temptation in drafting laws, as elsewhere, to try to achieve two incompatible goals at the *597same time. Here that temptation is to meet the state’s difficulty in prosecuting drivers with suspended licenses by freeing the state from having to prove a driver’s knowledge of the suspension, while continuing to make guilt depend on the driver’s actual knowledge by proper notification or otherwise.
But the state cannot have it both ways. Perhaps, if it came to a choice, a legislature might be induced to say that a person becomes a felon when she drives in reliance on a license which, unknown to her, has been suspended. I am inclined to doubt it. In any event, that was not what legislators were asked to vote for in enacting ORS 487.560, and it is not what that statute says. They were offered a way to escape the choice by shifting the burden of proof. When the legislature decides to create a crime without any culpable mental element, it must make that decision unambiguously and “clearly,” ORS 161.105(l)(b), or the appropriate mental element must be supplied, ORS 161.115(2), unless the offense is to be a violation punishable by no more than a fine, ORS 161.105(l)(a). Far from “clearly” dispensing with the driver’s knowledge as an element of guilt, ORS 487.560 reaffirmed it in subsections (2)(b) and (3).
Knowledge that one’s license is suspended, by notification or otherwise, thus remains material to guilt of “driving while suspended,” and the case should have been tried accordingly. As it was not, the conviction should be reversed.
Lent, C. J. and Roberts, J. join in this dissenting opinion.
The report continues with this reference to the Model Penal Code:
“As noted by the Model Penal Code commentators, in the absence of minimal culpability, the law has neither a deterrent nor corrective nor an incapacitative function to perform. They support this approach by stating:
*592“ ‘It has been argued and the argument undoubtedly will be repeated, that absolute liability is necessary for enforcement in a number of areas where it obtains. But if practical enforcement cannot undertake to litigate the culpability of alleged derivation from legal requirements, we do not see how the enforcers rightly can demand the use of penal sanctions for the purpose. Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant’s act was wrong. This is too fundamental to be compromised. The law goes far enough if it permits the imposition of a monetary penalty in cases where strict liability has been imposed.’ (Tent. Draft No. 4, at 140 (1955)).”
Certainly this policy is more consonant than strict liability with the command that criminal laws “shall be founded on the principles of reformation,” Or Const art I, § 15.
ORS 161.095(2) provides:
“Except as provided in ORS 161.105, a person is not guilty of an offense unless he acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.”
ORS 161.105 provides in part:
“(1) Notwithstanding ORS 161.095, a culpable mental state is not required if:
“(a) The offense constitutes a violation, unless a culpable mental state is expressly included in the definition of the offense;
“(2) Notwithstanding any other existing law, and unless a statute enacted after January 1, 1972, otherwise provides, an offense defined by a statute outside the Oregon Criminal Code that requires no culpable mental state constitutes a violation.”
ORS 161.115, so far as relevant here, provides:
“(2) Except as provided in ORS 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence.”
ORS 482.5V0 prescribes:
“When the division, as authorized or required, suspends, revokes or cancels a license or the right to apply for a license to operate motor vehicles, it shall give notice of such action to the person whose iicense or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court. Service of the notice is accomplished either by mailing the notice by certified mail restricted delivery, return receipt requested, to the person’s address as shown by division records, or, by personal service in the same manner as a .summons is served in an action at law.”
In the Oregon code, unlike the Model Penal Code, an affirmative defense must be proved by the defendant by a preponderance of the evidence. ORS 161.055(2). Compare Model Penal Code § 112(2)(a), which provides that when there is evidence supporting an affirmative defense (whether presented by the prosecution or defendant) that the prosecution carries the burden of disproving the defense beyond a reasonable doubt. See Model Penal Code § 1.13 (Tentative Draft No. 4) at 110 for commentary.
The majority says that if evidence of defendant’s knowledge remains part of the state’s affirmative case, subsection (3)(b) becomes a “circuity.” The answer is that (3)(b) shows that knowledge remains relevant to guilt or innocence; placing it procedurally after rather than before the defendant has shown lack of notification merely demonstrates that what the drafters of ORS 487.560 did was to manipulate the order of proof, not to create a strict liability crime.
The state was unable to offer this court any other explanation why lack of proper notice of the suspension should be a defense if the driver’s knowledge is immaterial to his guilt, except a suggestion that maybe acquittals for lack of proper notice were meant to encourage the Motor Vehicles Division to give such notice. Unrealistic as this suggestion is, it is completely contradicted by the fact that the statute continues by letting the state establish guilt by proof of actual knowledge irrespective of defective notice. This has nothing to do with policing effective notice by the Motor Vehicles Division.