dissenting.
In State v. Buttrey, 293 Or 575, 651 P2d 1075 (1982), this court held by a bare majority of four to three that one can be convicted of the crime of “driving while suspended” even though the defendant did not know of the suspension. In State v. DeMello, 300 Or 590, 716 P2d 732 (1986), by a majority of four to two, the court held that under the statutory scheme involved here a person who does not respond to a notice from the postal carrier that certified mail for the person is waiting at the post office is guilty of “driving while suspended” even though there is nothing whatsoever to show that the person knew from whom the mail came and therefore could not be guilty of refusing mail from the Motor Vehicles Division.
Although I was one of the dissenters in those two cases and still believe the decisions were wrong, I would not write to dissent in this case if only the same points were involved because of the rule of stare decisis. State v. Clevenger, 297 Or 234, 244, 683 P2d 1360 (1984). I dissent here because the court now holds that it does not make any difference that one charged with this crime is not shown to have received a notice that certified mail awaits at the post office. As the majority acknowledges, 305 Or 611, 755 P2d 693 (1988), “Delivery of a pink slip, not just the delivery of the suspension letter, would result in full compliance” with the Division’s obligation to send a “suspension letter by certified mail, restricted delivery, return receipt requested to the [defendant’s] address of record.”
The majority opinion quite rightly refuses the invitation to take judicial notice that postal regulations require mail carriers to leave a “pink slip” when the addressee is unavailable to accept delivery. That being so, the record in the case at bar doesn’t even have any evidence of what a “pink slip” is, let alone what it does. As the trier of fact found:
*620“4) There was no testimony concerning postal practices as to unclaimed mail;
“5) There was no testimony concerning pink slips[.]”
DeMello holds that the delivery of the “pink slip” to a defendant’s correct address satisfies the Division’s statutory obligation to give notice of suspension. Today’s opinion holds that neither delivery of the notice nor delivery of a “pink slip” is required to satisfy that obligation.
Under the majority opinion, if a defendant were to testify that she neither received notice nor a pink slip and that testimony were uncontradicted, there would still be a question for the trier of fact whether the state has proved its case beyond a reasonable doubt. In other words, the state would be entitled to go to the jury without one iota of evidence that a “pink slip” was ever delivered to defendant’s address. I cannot conceive that a rational trier of fact on that evidentiary record could find beyond a reasonable doubt that all elements of the crime have been proven. Jackson v. Virginia, 443 US 307, 99 S Ct 2781, 61 L Ed 2d 560 (1979), and State v. Harris, 288 Or 703, 609 P2d 798 (1980).
If the majority today is correct, DeMello need never have been written. There the court held that delivery of a “pink slip” is sufficient for conviction; here the court holds that it is not at all necessary that a “pink slip” be delivered. Under my hypothetical posed in the preceding paragraph, the state wins even if the only evidence before the trier of fact is that nothing was delivered.
It must be emphasized that we are speaking of procedures that lead to prosecution and conviction of a felony, not a mere administrative loss of a license. It remains incredible to mé that the legislature ever intended to shift to a defendant the burdens of proving herself innocent of a felony.
I dissent.
Linde, J., joins in this dissenting opinion.