dissenting.
The majority holds that the defense of insanity is not available to one charged with driving under the influence of intoxicants (DUII). It does so by concluding that DUII is a strict liability crime, i.e., one which does not have as an element a culpable mental state, and by concluding that the insanity defense is not available to persons charged with strict liability crimes. Because I have doubts as to both of the conclusions upon which the holding is based and do not find the reasons given for those conclusions persuasive, I dissent.
ORS 161.105 provides in part:
“(1) Notwithstanding ORS 161.095, a culpable mental state is not required if:
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“(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.”
The first question is whether the legislature “clearly” intended the DUII offense not to have a culpability requirement. The language of the statute defining the offense contains no indication at all of a legislative intent to dispense with a culpable mental state requirement. The majority finds the necessary manifestation of clear intent in the statute’s “history and surrounding circumstances” contained in these two sentences:
“The legislature made DUII a crime in order to keep *465dangerous drivers off the road. It was undoubtedly aware of what experience with DUII cases shows: dangerously intoxicated drivers often insist, at times sincerely, that the liquor which they drank has not affected their driving ability.” 78 Or App at 462.
That the legislature may have made DUII a crime to keep dangerous drivers off the road says nothing about culpability. The legislature made arson a crime to discourage people from burning down buildings, but that does not make arson a strict liability crime. Similarly, that intoxicated drivers may insist that their driving has not been affected by the liquor they have consumed says nothing about culpability or the legislature’s intent.
The Supreme Court has taken the requirement in ORS 161.105(1) (b) of clear legislative intent in order to dispense with a culpable mental state seriously. In State v. Cho, 297 Or 195, 681 P2d 1152 (1984), it held that ORS 498.022, prohibiting the sale of wildlife parts, was not a strict liability crime. Although the statute prohibited such sales without regard to any culpable mental state, the Court stated:
“The mere enactment of a crime without an expressly required culpable mental state is insufficient to establish such a clear indication. The designation of an offense as a misdemeanor (or felony) invokes the potential of incarceration of offenders. As opposed to a violation, the heightened impact on the liberty interest of the alleged misdemeanant or felon provides support for a culpability requirement in crimes.” 297 Or at 201.
The court dismissed the state’s argument that the statute’s protection of an important state interest somehow bears on the legislative intent regarding culpability. “We * * * fail to see how this supports the state’s allegation that ORS 498.022 and other wildlife laws are strict liability crimes.” 297 Or at 201. Finally, even accepting the state’s contention that the enactment of a simplified system of citation and complaint (similar to that used in charging motor vehicle violations) somehow indicates that the legislature wished to do away with the culpability requirement, the court concluded that it “falls short of ‘clearly’ indicating that intent as [ORS 161.105] requires.” 297 Or at 202.
In State v. Buttrey, 293 Or 575, 651 P2d 1075 (1982), *466the court held that driving while suspended is a strict liability offense. It found the requisite legislative intent, required by ORS 161.105, in the provision in the DWS statute providing that lack of culpability, i.e., knowledge, could be proved as a defense. The Court reasoned that the legislature, by making lack of knowledge a defense, showed that it intended to make the crime itself one of strict liability. Even that manifestation of intent was only clear to four members of the court.
I do not find in the DUII statute any clear indication of a legislative intent to dispense with the culpable mental state requirement and make DUII a strict liability offense.
Assuming that DUII is a strict liability crime, as the majority concludes, I have more serious doubt of the correctness of the majority conclusion that the insanity defense is not available to persons charged with strict liability crimes. Oregon’s insanity defense is contained in ORS 161.295 which, at the time of the alleged offense, provided:
“(1) A person is not responsible for criminal conduct if at the time of such conduct as a result of mental disease or defect he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his 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.”
The majority summarily disposes of the defense of lack of capacity to appreciate the criminality of one’s conduct by saying, “the DUII statute is commonly violated by sane people who do not appreciate the criminality of their conduct, and that theory of defense is therefore unavailable to defendant.” 78 Or App at 463. That appears to say only that the defense is not available to sane people. It does not explain why a defendant whose inability to appreciate the criminality of his or her conduct is rooted in mental disease or defect should be prevented from asserting the insanity defense.
The majority is even more cursory in disposing of the defense of lack of capacity to conform one’s conduct to the requirements of the law. It finds the lack of capacity to conform to be irrelevant to DUII, regardless of the reason for the lack of capacity. It seems to reason that, because the *467offense is one of strict liability, the inability to conform one’s conduct to the requirements of the law because of mental disease or defect is irrelevant, i.e., that the words “criminal conduct” in ORS 161.295(1) do not include strict liability crimes.
In this regard, the majority collapses into one the separate concepts of culpable mental state and insanity. It holds that, because no culpable mental state is required, insanity cannot be a defense. That does not follow from a reading of the statute creating the defense. ORS 161.295 does not say that it is not available to those charged with strict liability crimes. On its face, the statute appears to make the defense available to any person charged with any crime.
The concepts of culpable mental state and insanity are distinct. Culpable mental state is an element of a crime that the state must prove. Insanity is an affirmative defense that a defendant must prove to avoid criminal responsibility. Proving the requisite culpable mental state for a crime does not relieve the state from responding to an insanity claim by a defendant. That the state may not need to prove a culpable mental state does not, it seems to me,' mean that a defendant cannot show that she was insane. That the state may be relieved of its burden of proving that a defendant acted negligently, recklessly, knowingly or intentionally, has nothing to do with whether she is unable by reason of mental disease or defect to conform her conduct to the requirements of the law. The two are not antitheses. As LaFave and Scott, Criminal Law, 270, § 36 (1972), say: “ ‘[T]he insanity defense is broader than the mens rea concept,’ as evidenced by the fact that the defense would in theory even be available in a prosecution for a strict liability crime which required no proof of the defendant’s mental state.” (Footnote omitted.) See also Hall, General Principals of Criminal Law 342 (2d ed 1960).
Because the legislature has not clearly indicated that DUII is a strict liability offense and because, even if it is, the defense of insanity is not unavailable to one charged with a strict liability offense, I dissent.
Joseph, C. J., and Warren and Newman, JJ., join in this dissent.