dissenting:
¶30 I agree with the majority’s holding that section 78-18-1(1) of the Code does not create an exception for section 31A-22-309(l)’s threshold requirement. However, I disagree with the majority as to the punitive damages award.
¶ 31 Contrary to what the majority states, the language of section 78 — 18—l(l)(b) is not “clear and unmistakable,” especially given the extraordinary result the majority’s reading of that section produces. Section 78-18-1 provides in pertinent part:
(1) (a) Except as otherwise provided by statute, punitive damages may be awarded only if [i] compensatory or general damages are awarded and [ii] it is established by clear and convincing evidence that the acts or omissions of the tortfeasor are the result of willful and malicious or intentionally fraudulent conduct, or conduct that manifests a knowing and reckless indifference toward, and a disregard of, the rights of others.
(b) The limitations, standards of evidence, and standards of conduct of Subsection (l)(a) do not apply to any claim for punitive damages arising out of the tort-feasor’s operation of a motor vehicle while voluntarily intoxicated or under the influence of any drug or combination of alcohol and drugs as prohibited by Section 41-6-44.
Utah Code Ann. § 78-18-l(l)(a), (b) (brackets and emphasis added). Subsection (l)(b) of section 78-18-1 does clearly state that the *486limitations, standards of evidence, and standards of conduct found in subsection (l)(a) do not apply to punitive damages claims arising out of a driver’s operation of a motor vehicle while intoxicated. However, subsection (l)(b) does not provide any guidance as to what the terms, “limitations, standards of evidence, and standards of conduct,” mean. Specifically, it is unclear whether the legislature intended subpart (l)(b) to exempt only the (l)(a)[ii] requirements — an interpretation that would preserve the fundamental common law requirement that a plaintiff be awarded general or compensatory damages before punitive damages can be awarded, freeing the plaintiff from the heightened requirements of subpart l(a)[ii] — or whether the legislature intended subpart (l)(b) to exempt the plaintiff from both the (l)(a)[i] and (l)(a)[ii] requirements — an interpretation that would constitute a fundamental break with our established punitive damage law and only require a plaintiff seeking punitive damages to establish by a preponderance of the evidence that he was injured (but may have suffered no compensable damages) by a defendant who was operating a motor vehicle while voluntarily intoxicated. The fact that the statute can be read in both ways renders subsection 78-18-1(1) ambiguous. When confronted with an ambiguous statute, we “then seek guidance from the legislative history and relevant policy considerations.” V-1 Oil Co. v. Utah State Tax Comm’n, 942 P.2d 906, 917 (Utah 1997) (citing World Peace Movement of Am. v. Newspaper Agency Corp., 879 P.2d 253, 259 (Utah 1994)).
¶ 32 Having found the statute to be unclear, I would then employ the review we regularly use when confronted with an ambiguous statute. First, I would look to its historical and legal context. The legislature enacted section 78-18-1 in 1989 to address for the first time in statutory form Utah’s law regarding punitive damages. Prior to its enactment, punitive damages law in Utah was entirely a matter of common law. Cf. Wilson v. Oldroyd, 1 Utah 2d 362, 267 P.2d 759, 765 (1954). For the most part, section 78-18-1 codified existing case law. See Kia Hodgson, Development, Punitive Damages Act, 1990 Utah L.Rev. 269, 272. The statute did, however, make punitive damages less readily available than may have been the case under our then-recent decisions. First, the statute made it plain that “recklessness,” which this court had ambiguously referred to in Behrens v. Raleigh Hills Hospital, Inc., 675 P.2d 1179, 1186-87 (Utah 1983), was insufficient to support imposition of punitive damages. See Utah Code Ann. § 78-18-l(l)(a). Second, the statute raised the burden of proof from a preponderance of the evidence to clear and convincing. See id. Finally, the statute codified the preexisting common law rule that punitive damages could not be awarded unless general damages first had been awarded, a position upon which our common law had always been consistent.
¶ 33 The legislature chose, in enacting this statute, not to apply these standards to cases involving DUI. See id. § 78-18-l(l)(b). This does not mean, however, as the majority reasons, that no standards apply for awarding punitive damages in DUI cases. It must be remembered that only the burden of proof and the language on state of mind in the statute were arguable departures from our common law. The requirement of an award of actual damages was not. “[I]t is not to be presumed that the legislature intended to abrogate ... a rule of the common law by enactment of a statute upon the same subject.... The fact that a statute contains a partial codification of a particular rule or principle of the common law does not necessarily abrogate the remainder of the common law....” 73 Am.Jur.2d Statutes § 185 (1974). Section 78-18-1 evinces no intent to occupy the entire field of punitive damages. While it codified and in some respects made stricter then-existing common law principles in cases where subsection (a) applies, principles of statutory interpretation suggest that the language of subsection (b) should be read as leaving in place the then-existing common law standards for awarding punitive damages in DUI cases.
¶ 34 Further support for this conclusion is found in the legislative history of section 78-18-1. The comments of Senator Barlow, the sponsor of the amendment to section 78-18-1 and a long-time critic of what he saw as this court’s erosion of the common law limita*487tions on punitive damages, indicate that subsection (l)(a) was intended generally to strengthen the threshold requirements for awarding punitive damages, while subsection (l)(b) was intended to leave unmodified the existing ease law for punitive damages claims arising from the operation of a motor vehicle while voluntarily intoxicated. Regarding subsection (l)(a), Senator Barlow expressed concern that some recent decisions of this court had permitted punitive damages to be too readily awarded. Floor Debate, Statement of Sen. Haven J. Barlow, 48th Utah Leg., Morning Sess. (Feb. 1, 1989) (Senate Recording No. 43). However, as to subsection (l)(b), Senator Barlow stated:
[W]hat we’re doing with this bill is about three things, maybe four things, keep this in mind: Restoring the standard back to where we were [prior to Terry v. Zions Co-op. Mercantile Inst., 605 P.2d 314 (Utah 1979) ], with the exception that with drugs and intoxication ive will not make any changes there. So if anybody is being sued as a result of ... reckless behavior where there’s drugs and alcohol involved, they will have to use the lower [pre-exist-ing] standards. So the higher standards will be in all cases with the exception of drunken driving or drug related behavior as far as driving is concerned.
Id. (emphasis added). Thus, the legislative history indicates that section 78-18-1 was intended to elevate the standards for punitive damage claims in general but to keep the then-current common law standards in place for claims arising out of DUI infractions. This history accords with reading the exclusion in subpart 1(b) as applying only to the new punitive damage requirements, not the old and settled requirement of an award of actual damages.
¶ 35 Construing the statute in this light, I would next look to the common law standards to determine if the punitive damages award before us was in error under the pre-1989 punitive damage case law. There are two basic common law requirements for awarding punitive damages that C.T. did not satisfy. First, compensatory damages must be awarded. See Graham v. Street, 2 Utah 2d 144, 270 P.2d 456, 459 (1954). Second, the plaintiff had to show that the defendant’s mental state was of greater culpability than simple negligence. See Johnson v. Rogers, 763 P.2d 771, 775-76 (Utah 1988). Therefore, under our pre-1989 case law, the plaintiff would be unable to receive punitive damages. The majority ignores that law.
¶ 36 As to the first common law requirement, the majority upholds the punitive damage award even though C.T. failed to obtain an award of compensatory damages. Although C.T. established that he suffered $10,000 in general damages and $339 in special damages, under the substantive law governing C.T.’s action, he failed to prove a tort giving rise to compensatory damages.
¶37 By upholding an award of punitive damages where no actual damages were awarded, the majority brings itself into conflict with another facet of our case law. In Crookston v. Fire Insurance Exchange, 817 P.2d 789 (Utah 1991), we stated that “the amount of a punitive damage award generally must bear a ‘reasonable and rational’ relationship to the actual damages.” Id. at 810 (citation omitted). Specifically, we noted that in cases where the actual damages awarded were less than $100,000, “punitive damage awards beyond a 3 to 1 ratio to actual damages have seldom been upheld.” Id. We later reiterated that “an award exceeding [this ratio] raises a presumption that the award is excessive and that a failure by the trial court to reduce the award or order a new trial is an abuse of discretion.... To overcome this presumption, the trial court must explain why the case is unique, usually in terms of one of the established seven factors or ‘some other factor that seems compelling.’ ” Crookston v. Fire Ins. Exch., 860 P.2d 937, 939 (Utah 1993) (quoting Crookston, 817 P.2d at 811). Our prior emphasis on the ratio of actual to punitive damages becomes meaningless if we permit a plaintiff to recover punitives without having recovered actuals. Neither the majority nor our past cases provide any guidance to the bench or bar in such a situation. Without an actual damage award with which to compare a punitive damage award and without any other guidance from this court, a punitive award can never be determined to be excessive. *488This raises serious federal due process questions, questions which Crookston had obviated. See 817 P.2d at 808-11.
¶ 38 In response to this objection, the majority has come up with the unique notion that even though the plaintiff is barred from maintaining a cause of action for general damages under section 31A-22-309(l) of the Code, the trial court can send the ease to the jury to determine, in a sort of mock trial, a fictitious general damages amount determined solely to support the only real recoverable damages — punitive. This fiction is an odd one, at best. The majority seizes upon this device to rescue its otherwise untenable result. But in doing so, it has introduced an unprecedented and unpredictable artifice into Utah law. One that may have unpredictable collateral consequences elsewhere in the law where actual damages are not recoverable.
¶ 39 Second, as with the pre-1989 common law mental state requirement, the majority upholds the punitive damage award even though C.T. failed to adduce any evidence tending to show that Johnson possessed the state of mind necessary for the imposition of punitive damages. In Crook-ston, we stated that under the common law, a punitive damage award is only appropriate if there is evidence to support “a lawful jury finding of defendant’s requisite mental state.” 817 P.2d at 807. The common law in place when the legislature passed 78-18-1 requires C.T. to prove that Johnson’s conduct was “malicious” or “in reckless disregard for the rights of others, although actual intent to cause injury is not necessary.” Behrens, 675 P.2d at 1186-87. In other words, “[sjimple negligence will never suffice as a basis upon which such damages may be awarded. ‘Punitive damages are not awarded for mere inadvertence, mistake, errors of judgment and the like, which constitute ordinary negligence.’ ” Id. (quoting Restatement (Second) of Torts, § 908 cmt. b, (1979)). Yet the majority guts this requirement with its reading of the statute.
¶ 40 The majority attempts to avoid the criticism that its naive reading of the statute will permit punitives for conduct that is only negligent by stating baldly that driving under the influence of alcohol amounts to reckless or wilful misconduct. Whatever the majority’s personal views of driving under the influence, under Utah case law that conduct alone is mere negligence. In Johnson v. Rogers, 763 P.2d 771 (Utah 1988), we addressed this very question and stated, “the mere allegation or fact of having caused an accident or injury after drinking and driving will not support an award of punitive damages. The standard is fact-specific and requires proof of conduct which is knowingly reckless and exhibits a high degree of disregard for the safety of others.” Id. at 776; see also Biswell v. Duncan, 742 P.2d 80, 84 (Utah Ct.App.1987). In this case, the only evidence introduced at trial was that Johnson had been convicted of driving under the influence and had collided with C.T.’s vehicle after crossing into the lanes of travel for oncoming traffic. Such evidence, alone, is insufficient to satisfy Johnson v. Rogers and the cases upon which it relied.
¶41 In Dixon v. Stewart, 658 P.2d 591 (Utah 1982), we held that “criminal culpability generally constitutes only evidence of negligence in a civil action, rather than negligence per se as a matter of law.” Id. at 600-01; see also Intermountain Farmers Ass’n v. Fitzgerald, 574 P.2d 1162, 1164 (Utah 1978) (“This Court has long held that the violation of a statute does not necessarily constitute negligence per se and may be considered only as evidence of negligence _”). In Dixon, the defendant pled guilty to negligent homicide after she struck and killed a pedestrian while driving under the influence of alcohol. In the subsequent civil case the plaintiff moved to admit the guilty plea as a statement against interest, but the trial court excluded the guilty plea. On appeal, we determined that the trial court should have admitted the guilty plea. See 658 P.2d at 600. However, we recognized the limited treatment the guilty plea should be given — it is only evidence of the defendant’s state of mind, not proof that the defendant acted maliciously, recklessly, or even negligently. See id. That rule would prevent the evidence of Johnson’s DUI conviction from satisfying the standard of culpability required by our case law.
*489¶42 In sum, in reaching its preferred result, the majority has jettisoned normal rules of statutory construction, ignored our prior precedent, and raised potentially serious due process questions about the exces-siveness of punitive damage awards. Today’s reading of this ambiguous statute, a reading that is fundamentally at odds with the legislature’s purpose in enacting the statute, and a reading that blithely ignores our case law and which fundamentally reshapes Utah’s DUI and punitive damage law, can only be explained by the fact that alcohol is involved. Whatever the evils of drunk driving — and they are many — such a fundamental change in Utah’s law of punitive damages should be left to explicit action of the legislature. The present statute is most emphatically not such an act.
¶ 43 Justice RUSSON concurs in Justice ZIMMERMAN’S dissenting opinion.