dissenting.
The resolution of these consolidated cases turns solely on the construction of statutes which, properly applied, point to one result. I will refer to the statutes and the facts in State v. Eastman, although a similar statute applies to Kovach.1 Eastman, while driving a car, collided with a motorcycle, severely injuring two persons. Eastman fled the scene without exchanging information or lending assistance. He was indicted for violating ORS 483.602. The indictment, in summary, states that Eastman (1) operated a motor vehicle, (2) was involved in an accident which resulted in injury to Colin McGregor, and (3) left the scene without (4) giving his name, address, and motor vehicle registration number to Colin McGregor or rendering reasonable assistance to him.
ORS 137.106(1) provides:
“(1) When a person is convicted of criminal activities which have resulted in pecuniary damages, in addition to *191any other sentence it may impose, the court may order that the defendant make restitution to the victim.”
The key words in ORS 137.106 are “criminal activities,” “pecuniary damages,” and “victim.” Each of those terms is defined in ORS 137.103.
The legislature defined “criminal activities” to include either (1) “any offense with respect to which the defendant is convicted,” or (2) “any other criminal conduct admitted by the defendant.” ORS 137.103(1). The latter definition is not involved in either case. We are faced with but one inquiry in determining whether the victim’s damages were caused by the defendant’s criminal activities: did the damage for which restitution was ordered result from the offense of which the defendant was convicted?
The term “offense” is defined in ORS 161.505 as “* * * conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state * * *. An offense is either a crime or a violation or a traffic infraction.”
The majority has concluded that restitution is not permissible in this case, reasoning that driving a car which is involved in an accident is not “criminal activity” because:
“* * * [D]riving a vehicle which is involved in an accident is an element of a crime only in the sense that it is a fact which must be proved under the criminal statute, but it is not an act which defendant performed in the course of committing the crime * * *. Activities which were criminal commenced after the accident occurred. Failure of such a person to stop and perform statutory duties arising from the accident would be criminal activity, but the preceding accident is not.”
I demur to these statements. The majority is apparently unwilling to allow restitution for damages resulting from an act, the performance of which, by itself, is not a crime because the occurrence of the accident was not “activities which were criminal.” In reaching this result, the majority strive mightily to avoid the statutory definition of “criminal activities” contained in ORS 137.106(1) — “any offense with respect to which the defendant is convicted.” The first element of the offense is the occurrence of the accident. I would apply the statute according to its plain meaning.
*192I agree that driving a vehicle that is involved in an accident — even an accident involving injury or death — is not, by itself, a criminal act in the sense that the mere occurrence of the accident is conduct for which imprisonment or a fine can be imposed. But driving a vehicle which is involved in an accident in which there is injury to or death of a person is, indisputably, an element of the “offense to which the defendant [was] convicted.” ORS 137.103(1).
Elements of a crime are defined by Black’s Law Dictionary (5th ed 1979) as “[t]hose constituent parts of a crime which must be proved by the prosecution to sustain a conviction.” The elements of the crime of which Eastman was convicted are these: (1) the defendant was the driver of an automobile which was involved in an accident; (2) the accident resulted in personal injury or damage to another; (3) defendant failed to stop and remain at the scene of the accident until specified duties were performed; (4) the defendant failed to perform one or more of the duties specified by ORS 483.602(2), relating to the giving of information and the rendering of assistance to persons injured in the accident.
The occurrence of the accident is just as much an element of the offense as the failure to render assistance, the failure to give his name and address, or the failure to stop and remain at the scene. The mere fact that the occurrence of the accident, in itself, is not punishable as a criminal act, is really not relevant to whether restitution is permissible.
The statutes leave no question. Restitution is permissible for “* * * all special damages * * * which a person could recover against the defendant in a civil action arising out of the facts or events constituting the * * * [offense with respect to which the defendant is convicted] * * *.”2 (Emphasis added.) The offense “with respect to which” Eastman stands convicted is not “leaving the scene of an accident.” The offense has four elements. The occurrence of the accident is an element of the offense with respect to *193which Eastman was convicted; it is also one of the “facts or events constituting the defendant’s [offense].” If pecuniary damages result from any element of the offense (ORS 137.103(1)), I would hold that restitution is permissible.
On page 188 of the majority opinion it is stated that the term “criminal activities” “is a broader term than ‘crime’ or ‘elements of crime’ and is intended to communicate a larger meaning.” (Emphasis added.) Yet, on page 190, the majority give the term a restrictive meaning, saying it includes only “activities which were criminal,” whatever that means.
Their difficulty in grappling with this case stems from a reluctance to permit restitution for damages which, though they flow from an element of a crime, do not flow from the performance of an act which is by itself a crime.3
I say, apply the statute according to its meaning and let the legislature worry about the problem that is bothering the majority.
Defendant Kovach was convicted of violating ORS 483.604, which provides:
“(1) The driver of any vehicle which collides with any vehicle which is unattended immediately shall stop and: [perform specified duties].”
The bracketed language is the statutory definition of “criminal activities” to be applied in defining the scope of recoverable “pecuniary damages.” ORS 137.103(1) and (3).
I emphasize that the imposition of restitution for special damages for personal injuries or property damage can only be made if the person in whose favor restitution is ordered “* * * could recover against the defendant in a civil action arising out of the facts or events constituting the defendant’s [offense] * * ORS 137.103(2), after the defendant has been given an opportunity to be heard, ORS 137.106(3).