(dissenting.) For several reasons, I agree with the state's position that the element of scienter no longer applies to first-offense OAR when the violation is subject only to civil penalties. First, the legislative history of sec. 343.44(1), Stats., shows a legislative intent to remove the element of scienter from first-offense OAR. In Collova, the dispositive factor in our determination to require the state to prove scienter in an OAR prosecution was the criminal penalties attached to OAR. State v. Collova, 79 Wis. 2d 473, 485, 255 N.W.2d 581 (1977). The legislature, in turn, responded to Collova by decriminalizing first-offense OAR. Removal of the dispositive factor relied upon in Collova evinces a legisla*645tive intent to remove the element of scienter from first-offense OAR. This is not a case of legislative silence with respect to the element of scienter. Rather, it is a positive removal of the scienter requirement in reaction to Collova.
I realize that the scienter element in the jury instruction for first-offense OAR was not removed after the offense became civil. Wis. J.I. — Criminal, Part IIA, 2620A. However, this instruction is not controlling authority, State v. O'Neil, 141 Wis. 2d 535, 541 n.1, 416 N.W.2d 77 (Ct. App. 1987), and should not be held as persuasive.
Second, the language of sec. 343.44, Stats., shows a legislative intent to remove the element of scienter from first-offense OAR. Section 343.44(1), which defines the offense of OAR, does not expressly require scienter. In addition, except for drivers of commercial vehicles and persons whose licenses have been revoked pursuant to chapter 351, the penalties for first-offense OAR are civil. See secs. 939.12, Stats, (crime defined); 343.44(2)(a) (penalties for first-offense OAR, noncommercial vehicle); 343.44(2g)(a) (penalties for first-offense OAR when revocation or suspension was for a listed offense, effective January 1, 1993); 343.44(2m)(a) (penalties for first-offense OAR, commercial vehicles); 343.44(4) (impoundment).
Third, for practical reasons, the element of scienter should be removed from first-offense OAR when the offense is subject only to civil penalties. When discussing State v. Stoehr, 134 Wis. 2d 66, 396 N.W.2d 177 (1986), the majority states the following: "In so holding, the court [in Stoehr] acknowledged the severity of the penalties involved but reasoned that the statute's legislative history, statutory language and purpose, and public policies warranted strict liability." Majority op. at 639-640. *646The penalties at issue in Stoehr were criminal penalties. In that case, this court concluded that the offense at issue was one of strict liability despite the existence of criminal penalties.
To the contrary, the defendant in this case is not subject to criminal penalties. When the penalty attached to fírst-offense OAR is merely civil, scienter should not be an element of the offense. Are we to require scienter for the offenses of speeding, illegal U-turn, or illegal left turn? They are civil offenses which do not require proof of scienter. Sections 346.57, Stats, (speed restrictions); 346.60 (penalty for speeding); 346.31 (left turn); 346.33 (U-turn); 346.36 (penalties for illegal left turn and U-túrn). The same is generally true for OAR first-offense.
In addition, OAR first-offense may be charged under an identical municipal ordinance and prosecuted in a municipal court. Will scienter now be required in municipal court?
Finally, observation of Wisconsin trial courts while first-offense OAR carried criminal penalties explains why the legislature decriminalized the offense. More than any other action, first-offense OAR was turning mere citizens into criminals. In addition, trial courts were overcrowded with first-offense OAR prosecutions because citizens faced with potential jail terms often asked for reduced charges and demanded jury trials. The practical effect of decriminalizing first offense-OAR was to eliminate jail sentences, decrease the demand for jury trials in busy courts, and eliminate plea bargains.
Fourth, the purpose of the OAR statute warrants removal of the scienter element from a first-offense violation. "When the legislature's goal is primarily to regulate, to accomplish a social good, or to obtain a high standard of care, proof of a criminal state of mind is often eliminated to achieve the desired result." Stoehr, *647134 Wis. 2d at 79 (citing State v. Collova, 79 Wis. 2d at 485).
Such offenses are most commonly found in areas such as food and drug handling and sale, the sale of intoxicating liquors to minors, traffic law violations, and sales of misbranded articles. In cases such as these it can be said that if sufficient care is exercised the proscribed conduct can be avoided in all but the exceptional instance. The persons to whom the regulations are directed are generally in a position to exercise such high degree of care; they will be encouraged to do so by the imposition of strict penal liability, and the penalties usually involved are such as to make the occasional punishment of one who has done everything that could have been done to avoid the violation a reasonable price to pay for the public benefit of the high standard of care that has been induced.
Collova, 79 Wis. 2d at 485.
For the foregoing reasons, I would reverse the court of appeals decision. Accordingly, I dissent.
I am authorized to state that JUSTICES ROLAND B. Day and LOUIS J. Ceci join this dissenting opinion.