concurring.
In order not to misconstrue the import of the holding on this record for other cases, something more needs to be said about the elements of the crime of driving a motor vehicle when one’s driver’s license has been suspended and the significance of the "affirmative defense” that one has not received the statutory notice of the suspension.
This case has been argued on the issue whether the proper mailing of notice of the suspension is a prerequisite of the suspension and an element of the offense of driving while suspended. If so, it might be unconstitutional to *206make failure to receive notice an affirmative defense to be raised and proved by the defendant. Even under Patterson v. New York, 432 US 197, 97 S Ct 2319, 53 L Ed 2d 281 (1977), 14th amendment due process does not let the state shift to the defendant the burden of disproving an element of the crime with which he or she is charged. It only permits assigning to the defendant the burden to show "affirmative defenses” that are recognized as "mitigating circumstances,” 432 US at 206, 209, i.e., circumstances that to some specified degree "exculpate or mitigate” conduct which otherwise includes all elements of the crime.1 432 US at 207. The question, therefore, is what is an element of the offense and what is an "exculpatory” or "mitigating” circumstance under the laws governing the crime of driving while suspended.
The legislature’s answer is found in the following statutes. ORS 161.095(2), as part of the 1971 revision of Oregon’s criminal law, enacted the principle that criminal guilt requires a culpable mental state except as stated in the next section.2
That exception, ORS 161.105, is stated as follows:
"(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; or
"(b) An 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.
*207"(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.
"(3) Although an offense defined by a statute outside the Oregon Criminal Code requires no culpable mental state with respect to one or more of its material elements, the culpable commission of the offense may be alleged and proved, in which case criminal negligence constitutes sufficient culpability, and the classification of the offense and the authorized sentence shall be determined by ORS 161.505 to 161.605 and 161.615 to 161.655.”
We recently discussed these sections in State v. Wolfe, 288 Or 521, 605 P2d 1185 (1980). In short, they provide that a culpable mental state is required for all offenses except those that are punishable only as violations.3 Violations require a culpable mental state only when expressly included in the definition of the offense. When an offense created outside the criminal code "clearly” is intended to require no culpable mental state, that offense is punishable only as a violation. These rules are designed to carry out the "general purpose” to "limit the condemnation of conduct as criminal when it is without fault.” ORS 161.025.4
How does "driving while suspended” fit into this framework? First, it is an offense "defined by a statute outside the Oregon Criminal Code.” ORS 487.560. The second question under ORS 161.105(l)(b), above, is whether the statute clearly dispenses with any culpable mental state requirement. ORS 487.560 does not clearly specify or clearly dispense with such a requirement. It is silent on the point. However, the context indicates that a culpable mental state is an element of driving while suspended.
*208ORS 487.560(1) provides:
"A person commits the crime of driving while suspended if he drives a motor vehicle upon a highway during a period when his license or permit to drive a motor vehicle or his right to apply for a license to drive a motor vehicle in this state has been suspended by a court or by the division or revoked by the division or if he drives a motor vehicle outside the restrictions of a license issued under ORS 482.475 or 482.477.”
It defines the offense as a "crime.” By subsections (5) and (6), the crime is either a Class A misdemeanor or a Class C felony. The legislative assembly in ORS 161.025, supra, has said, and we ordinarily assume, that it does not intend to make a criminal of one who has no reason to know the facts that make his conduct unlawful. Cf. State v. Wolfe, supra. That applies to one who drives in good faith on a license issued by the state without reason to suspect that the license has been suspended or otherwise terminated. It is borne out by the various provisions for notice discussed by the Court.
Moreover, if ORS 487.560 were read to dispense with a culpable mental element, then ORS 161.105(2), quoted above, would reduce the offense of driving while suspended from the crime which it purports to define to a violation.5 If ORS 487.560 indicates anything, it is that the legislature was more intent on making driving while suspended a serious offense than to eliminate any culpable element and make violators of people who have no reason to doubt the continued validity of their drivers’ licenses.
Nevertheless, even though the statute does not dispense with a culpable mental state as an affirmative element of the crime, and as a practical matter the prosecution may prove the sending of notice as the most likely evidence to show that element, it does not follow that sending notice of the suspension itself is such an affirmative element. Thus the question what degree of knowledge or careless failure to inquire into the status of one’s license constitutes the required element of culpability is properly *209left to an occasion when it is briefed and argued.6 It only deserves to be pointed out that the present case does not decide that question.
I do not here pursue the conundrum how the presence or absence of a specified fact can excuse or reduce a defined crime without thereby making the absence or presence of that fact an element of guilt of that crime. That this is a conundrum is plain once we focus on the question of the actor’s guilt of the crime at the time of his act (for instance, when driving without notice that one’s license has been suspended) rather than on the procedure at the time of trial. However, as the Court says, on this 14th amendment issue we take the word of the Supreme Court.
ORS 161.095(2):
"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.”
"Violations” are not "crimes.” "An offense is either a crime or a violation or a traffic infraction.” ORS 161.505. An offense is a violation if it is so designated or if it is punishable only by a fine, forfeiture, or other civil penalty. ORS 161.565, 161.575.
ORS 161.025(1):
"The general purposes of chapter 743, Oregon Laws 1971, are:
"(d) 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.
This is so unless ORS 487.560, which is "a statute enacted after January 1, 1972” "otherwise provides.” But again, ORS 487.560 does not expressly "otherwise provide”; it is silent on the point.
Cf. ORS 161.085(6) to (10), defining the different kinds of "culpable mental state.”