concurring in part; dissenting in part.
The majority holds that a felon who possesses a firearm under an honest and reasonable belief that he or she is not a felon, nonetheless is guilty of felon in possession of a firearm, ORS 166.270, a felony offense punishable by up to five years in prison. Because I believe that the applicable statutes require the state to prove a culpable mental state with respect to that element, I dissent from the majority’s holding on that issue. I join the majority opinion only with regard to affirming the assault conviction.
Defendant possessed a firearm, after having been convicted five times of driving while suspended. ORS 811.175. Driving while suspended is either a felony, a misdemeanor or an infraction, depending on various circumstances, including the prosecutor’s discretion. Three of defendant’s driving while suspended convictions were felonies. The state presented evidence from which a trier of fact could find that defendant knew those convictions were felonies. Defendant presented evidence from which a trier of fact could find that, at the time of the alleged crime, he was operating under the mistaken belief that his convictions were misdemeanors.
The trial court instructed the jury that *307Defendant excepted to that instruction, and assigns it as error.
*306“whether defendant knew he was convicted of driving while suspended as a felony is not an element of the crime of ex-felon in possession of a firearm.”
*307A person commits the crime of felon in possession of a firearm if the person (1) has been convicted of a felony, and (2) has a firearm in the person’s possession, custody or control. ORS 166.270(1). The state must generally prove a culpable mental state with respect to each material element of an offense. ORS 161.095(2) provides, with certain exceptions, that
“a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.”
The leading case construing that statute is State v. Blanton, 284 Or 591, 588 P2d 28 (1978). In Blanton, the defendant was charged with furnishing a narcotic drug to a person under 18 years of age. He asserted as a defense that he did not know that the recipient was under 18. The state contended that the supposed mistake about the recipient’s age was immaterial, because the recipient’s age was not a material element for which it was required to prove a culpable mental state. The Supreme Court held that there was “no question that the age of the recipient is a material element of the offense.” 284 Or at 595. The court also considered whether the recipient’s age was a “material element that necessarily requires a culpable mental state,” within the meaning of ORS 161.095(2). It held that that phrase was intended
“to distinguish those elements defining the substance or quality of the forbidden conduct from others relating * * * ‘solely to the statutes of limitations, jurisdiction, venue and the like.’ ” 284 Or at 595.
Following Blanton, a culpable mental state is required for a material element that defines the substance of quality of the forbidden conduct, and not for those elements that might be termed procedural prerequisites to criminal liability. See also State v. Jaha, 118 Or App 497, 848 P2d 622 (1993).
Defendant’s status as a felon is a “material element” of the crime. Furthermore, it is an element that defines the *308substance or quality of the forbidden conduct. Were it not for defendant’s status as a felon, his possession of a firearm could not violate ORS 166.270. Defendant’s status as a felon has nothing to do with “the statute of limitations, jurisdiction, venue and the like.” Therefore, under Blanton, it is an element for which a culpable mental state is required.1
The majority holds, to the contrary, that defendant’s status was “simply part of the attending circumstances. There is no mental state, i.e., mens rea applicable to it.” 127 Or App at 304. Frequently, a culpable mental state is required with respect to attending circumstances. In Blanton itself, the court held that the defendant was not guilty of furnishing a narcotic drug to a person under 18 years of age, unless he knew the recipient was under 18. In other words, the culpable mental state requirement applied to the attending circumstance of the recipient’s age.
It is not a significant difference that the attending circumstance at issue in this case is the defendant’s status. In In re Kirkman, 313 Or 181, 830 P2d 206 (1992), which was a lawyer disciplinary proceeding, the accused was alleged to have committed bigamy. ORS 163.515. That statute provides that a person commits bigamy “if the person knowingly marries or purports to marry another person at a time when either is lawfully married.” (Emphasis supplied.) The *309Supreme Court held that the accused committed bigamy “when he knowingly married or purported to marry [one woman] * * *, when he knew that he was still married to [another].” 313 Or at 185. (Emphasis supplied.) The attendant circumstance of the accused’s legal status as a married person was an element of bigamy for which a culpable mental state was required. If he did not know that he was a married person when he purported to marry again, then he was not guilty of the crime.
The felon in possession of a firearm statute, like the bigamy statute, makes the criminality of the act dependent on the legal status of the actor at the time of the act. As in Kirkman, a culpable mental state should be required as to that status.
Nonetheless, the majority contends that defendant’s status as a felon is not an element that is “logically provable by a mens rea.” 127 Or App at 305. That is not so. Culpability as to one’s status as a felon refers to knowing that one has been convicted of a felony, or recklessly or with criminal negligence failing to realize it.
The potential for injustice in the majority’s rule is illustrated by the facts of People v. Bray, 52 Cal App 3d 494, 124 Cal Rptr 913 (1975). In that case, Bray was convicted in Kansas for being an accessory after the fact. He pleaded guilty to that charge, and was sentenced to probation. After completing his probation, Bray moved to California. When he arrived in California, he filled out a voter’s application form, on which he explained the Kansas conviction and expressed his uncertainty about whether that conviction was a felony. He was allowed to vote. On subsequent official application forms, he continued to express confusion about whether his Kansas conviction was a felony.
Thereafter, Bray was charged with felon in possession of a firearm. At trial, the court refused to give his requested instruction that ignorance of his status as a felon would be a defense. On appeal, the court noted that the “prevailing trend of decisions is to avoid constructions of penal statutes that would impose strict liability.” It held that
“knowledge that one is a felon becomes relevant where there is doubt the defendant knew he had committed a felony. *310Here, even the prosecution has substantial difficulty in determining whether the offense was considered a felony in Kansas. * * * There was no doubt Bray knew he had committed an offense; there was, however, evidence to the effect he did not know the offense was a felony. Without this knowledge [he] would be ignorant of the facts necessary for him to come within the proscription of [the statute]. Under these circumstances the requested instruction on mistake or ignorance of fact * * * should have been given.” 124 Cal Rptr at 916. (Emphasis supplied.)
People v. Bray, supra, was essentially limited to its facts by a closely and sharply divided California Supreme Court in People v. Snyder, 32 Cal 3d 602, 186 Cal Rptr 485 (1982). The majority held that the defendant’s mistake as to her status as a felon was a mistake of law, and, therefore, was no defense.
Whatever its merits in California, that position is not tenable under Oregon law. In Oregon, the postulate that “ignorance of the law is no excuse” is codified at ORS 161.115(4), which provides:
“Knowledge that conduct constitutes an offense, or knowledge of the existence, meaning, or application of the statute defining an offense, is not an element of an offense unless the statute clearly so provides.”
The point of ORS 161.115(4) is that aperson is culpable if the person commits the prohibited act with the requisite mental state, regardless of whether the person also knows that the act violates the law. As applied to this case, that provision charges defendant with knowledge that being a felon in possession of a firearm is an offense, and with knowledge of the existence, meaning and application of the statute defining that offense.
Defendant does not claim that he was mistaken as to those matters. He claims that he was mistaken as to the meaning or application of a different statute, specifically, the driving while suspended statute. ORS 811.175. Defendant is not charged, as a matter of law, with knowledge of the meaning or application of that statute in this case. Whether he acted culpably with respect to his status as a felon is a question for the trier of fact.
*311Finally, the majority says that “the necessary and logical consequence” of my opinion is that a felon should be acquitted “simply because he claims to have forgotten his prior felony conviction or professes not to understand what a ‘felon’ is.” 127 Or App at 305. Whether a particular defendant should he acquitted based on a “claim” that he or she lacked the requisite culpable mental state is a question for the trier of fact. The acquittal of the majority’s hypothetical defendant is not, and could not be, “the necessary and logical consequence” of this opinion.
I would hold that the trial court erred by instructing the jury that defendant’s knowledge of his status as a felon is not an element of the crime, and would therefore reverse the conviction for felon in possession of a firearm. The assault conviction is not affected by that error. I join the majority’s resolution of the evidentiary assignment of error, and would affirm defendant’s conviction for assault.
The majority’s reliance on State v. Miller, 309 Or 362, 269, 788 P2d 974 (1990), is unpersuasive. In that case, the Supreme Court held that the defendant’s blood alcohol content was not an element of driving under the influence of intoxicants statute, ORS 813.010, for which a culpable mental state was required. It based that holding on ORS 161.105(1)(b), which provides that a culpable mental state is not required if:
“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.”
The court held that ORS 813.010 was a statute outside the Oregon Criminal Code, and that the statute clearly indicated an intent to dispense with any culpable mental state requirement with respect to a defendant’s blood alcohol content. Therefore, no culpable mental state was required for that element.
The felon in possession of a firearm statute, ORS 166.270, is not expressly enumerated as a statute within the Code. See ORS 161.005. However, the Supreme Court has expressed doubt as to whether the failure to include it within the Code was a mere oversight. State v. Wolfe, 288 Or 521, 525 n 3, 605 P2d 1185 (1980). In any event, the exception only applies if there is a clear indication of a legislative intent to dispense with any culpable mental state requirement. There is no such indication, clear or otherwise, with respect to ORS 166.270. Therefore, Miller is inapposite to this case.