dissenting.
In State v. Maguire, 78 Or App 459, 717 P2d 226 (1986), aff’d without opinion by an equally divided court 303 Or 368, 736 P2d 193 (1987), a closely-divided Court of Appeals, sitting en banc, held that the defense created by ORS 161.2951 was not available to defendants charged with driving under the influence of intoxicants (DUII), because that offense did not require a culpable mental state. In spite of the fact that I was the author of the opinion for the Court of Appeals majority in that case, I should be willing to abandon Maguire if I *471were persuaded that it was decided incorrectly. See State v. Isom, 306 Or 587, 597-98, 761 P2d 524 (1988) (Gillette, J., concurring). Because I am not persuaded, I dissent.
The majority’s analysis of this problem2 is in three parts: (1) a comparison of the circumstances in which ORS 161.295 becomes applicable to a particular case, as contrasted with the circumstances in which the companion statute, ORS 161.300, becomes applicable; (2) an analysis of the meaning of the specific language of ORS 161.295, in light of the foregoing comparison; and (3) an analysis of why applying ORS 161.295 to DUII cases will not endanger the public. I have no difficulty with the first section. The reasonableness of the second section, however, seems to me to depend on the correctness of the third, viz., the section that purports to show that the majority’s interpretation of the scope of ORS 161.295 will not result in DUII offenders being turned loose with no sanction at all for their crimes. It is the majority’s analysis of that last section that — to my mind — demonstrates the error of the majority.
The issue is whether the context of the DUII statute calls for it to be exempted from the coverage of ORS 161.295. The majority holds that the context does not require such an exemption; I believe that the context does so require.
I need note only in passing the legislature’s profound (and wholly justified) concern with the phenomenon of drinking and driving. The majority acknowledges the “grave concern” of the legislature as to this matter. 310 Or at 466. The majority then seeks to reassure the reader that these “grave concerns” still will be met even if a DUII offender is permitted to plead that he is guilty except for insanity. I am not reassured.
My concern is with the potential disposition of the *472offender. DUII is a misdemeanor. What dispositional alternatives are available to a trial court in a case in which the defendant has been found “guilty except for insanity” with respect to a misdemeanor? The answer is “as a general matter, none.”
The majority’s own summary of the law in this area makes my point:
“ORS 161.327(1) provides that the defendant [found ‘guilty except for insanity’] shall be committed to a mental health facility and placed under the jurisdiction of the PSRB, if ‘the person would have been guilty of a felony, or of a misdemeanor during a criminal episode in the course of which the person caused physical injury or risk of physical injury to another’ and if the person ‘presents a substantial danger to others.’ In that event, the defendant will remain under the PSRB’s jurisdiction for a period equal to the maximum sentence available for the crime for which the person was found guilty except for insanity. ORS 161.327(1). The legislature has defined the most serious DWS offenses as felonies, ORS 811.182(1), to which the commitment alternative could apply. Although DUII is a misdemeanor, ORS 813.010(3), as are some forms of DWS, ORS 811.182(2), it is likely that in most cases the defendant causes at least a risk of physical injury to another, making the commitment alternative available if the other statutory criterion is met.”
310 Or at 467 (emphasis supplied).
I do not know where the emphasized portion of the majority opinion came from, but the generalization about DUII cases seem to me to be dangerously naive. The majority generalizes that “in most cases the defendant causes at least a risk of physical injury to another.” If this is an assertion that in most DUII cases the arresting officer can point to specific risks to specific persons as a result of the defendant’s driving, I respectfully suggest to the majority that it probably is wrong. Relatively speaking, I believe that most DUII arrests are based on an observation of driving that does not result in a collision or even, during the period of observation, any danger to anyone. Certainly, few such arrests occur only after a collision. (And not all collisions are with people or with other cars containing people; some are with empty cars, trees, fenceposts and the like.)
In any event, and without regard to who is closer to *473the true facts surrounding most cases of DUII, even the majority admits that a number of DUII offenders are simply going to “walk” because they do not meet the first criterion of ORS 161.327(1). And the majority further acknowledges, as it must, that still more offenders will be let off because they do not meet the statute’s second criterion, viz., that the offender present “a substantial danger to others.” While the first criterion appears to me to address the circumstances of the criminal episode that led to the defendant’s arrest, this second criterion has to do with the offender, not the crime. Both criteria must be met. Thus, every offender who does not meet this second criterion by definition enlarges the pool of DUII offenders who, although guilty, receive no punishment or remedial treatment of any kind for their offense. It is telling that the majority does not even try to reassure us with respect to this second criterion. How could it?
The majority goes on to assert that “[a]nother part of the answer lies in the Oregon Vehicle Code. There, [in ORS 809.410(23),] the legislature has designed additional procedures for defendants who are found guilty except for insanity of traffic offenses.” 310 Or at 467 (emphasis supplied). The majority here ignores the pivotal portion of that statute. It provides:
“Upon notification by a court under ORS 153.625 that a person charged with a traffic offense has been found guilty except for insanity and committed to the jurisdiction of the Psychiatric Security Review Board, the [Motor Vehicles Division] shall immediately suspend the driving privileges of the person. A suspension under this subsection is subject to a post-imposition hearing under ORS 809.440 and shall continue until such time as the person establishes eligibility under ORS 807.090.”
(Emphasis supplied.) See also ORS 153.625 (directing that the notice be given to the Motor Vehicles Division where a person charged with a traffic offense has been found guilty except for insanity “and committed to the jurisdiction of the Psychiatric Security Review Board”).
The scope of these statutes (which the majority characterize as “part of the answer”) is specifically limited to the criteria under ORS 161.327(1) discussed earlier — those persons who are found guilty except for insanity but who do not *474meet both criteria of ORS 161.327(1) walk. Their licenses are not even in jeopardy. I respectfully suggest that these statutory sections provide no “part” of any “answer” that suggests the conclusion the majority reaches.
The majority is able in the legislative history of the statutes to find only a single witness who even assumed — and that is all he did — that DUII was subject to ORS 161.295. Moreover, as the majority acknowledges, St,ate v. Maguire, supra, was already on the books when that testimony was given. We therefore must assume, in order to accept the majority’s argument, that both the witness and the legislative committee to which he spoke were ignoring Maguire. I find it far more plausible that the committee did not think it had to agree with the witness’ description of the scope of the measure, in order to approve of it.
The majority’s strained efforts to reassure the reader are a reflection of what the majority on some level recognizes — the result which the majority announces in this case does not make sense. Whatever the legislature intended in the enactment of ORS 161.295, it did not intend that the statute would permit drunk drivers to walk away scot-free from their crimes. I dissent.
Van Hoomissen, J., joins in this dissenting opinion.ORS 161.295 provides:
“(1) A person is guilty except for insanity if, as a result of mental disease or defect at the time of engaging in criminal conduct, the person lacks substantial capacity either to appreciate the criminality of the conduct or to conform the conduct to the requirements of law.
“(2) As used in chapter 743, Oregon Laws 1971, the terms ‘mental disease or defect’ do not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct, nor do they include any abnormality constituting solely a personality disorder.”
I agree with the majority’s handling of the preservation of error issue. At the same time, I do wish to note my strong suspicion that we here are spinning our wheels unnecessarily: If the trial judge had not ruled the defense (and, therefore, the evidence that supported it) inadmissible generically, but instead had allowed defendant to put on his offer of proof, the odds are very high that the kind of evidence defendant had in mind would not qualify to excuse defendant’s conduct. That is not what happened, however, and we are now stuck (as was the Court of Appeals) with answering this very significant question without any factual context.