dissenting.
The issue in this case is whether the trial court erred in preventing defendant from asserting the defense of involuntary intoxication to a charge of driving under the influence of intoxicants (DUII).1 Based upon the precedents of this court, I believe that the trial court did so err, and I accordingly dissent.
*372Resolution of this case is hinged to a determination of whether the statute purportedly violated by defendant, ORS 813.010, is a “strict liability” crime (also referred to as an “absolute liability” crime or a “liability-without-fault” crime). If it is, no proof of a culpable mental state is required, and, therefore, whether the ingestion of intoxicants was voluntary or involuntary is irrelevant.
I. LEGISLATIVE REQUIREMENT OF CULPABLE MENTAL STATE
A. General Legislative Policy.
Nearly two decades ago, the legislature specifically adopted a legislative policy generally requiring a culpable mental state as a prerequisite to a finding of criminal conduct. In 1971, when the legislature passed a comprehensive revision of the Oregon Criminal Code, it expressly stated that one of the general purposes of the process was “[t]o 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.” ORS 161.025(1)(d). (Emphasis added.) Commenting on this provision, The Oregon Criminal Law Revision Commission (the Commission) stated:
“Paragraph (d) is intended to make it clear that there is a legislative policy against creating liability without fault crimes (the so-called regulatory, public welfare, public tort or absolute liability crimes), with heavy penalties. This provision should be considered in connection with Article 7 [now ORS 161.505 to 161.585] which sets up the violation classification and in connection with the general requirements for culpability set out in Article 2 [now ORS 161.085 to 161.125].” Commentary to Proposed Oregon Criminal Code § 2,2 (1970) (the Commentary).
The Commentary further states:
“The Commission follows the Model Penal Code in expressing a policy adverse to use of ‘strict liability’ concepts in criminal law, whenever the offense carries a possibility of sentence of imprisonment.
“This position relates not only to offenses defined by the criminal code itself, but covers the entire body of state law, so far as penal sanctions are involved. As noted by the Model Penal Code commentators, in the absence of minimal culpability, the law has neither a deterrent nor corrective nor *373an incapacitative function to perform. They support this approach by stating:
“ ‘It has been argued and the argument undoubtedly will be repeated, that absolute liability is necessary for enforcement in a number of areas where it obtains. But if practical enforcement cannot undertake to litigate the culpability of alleged deviation from legal requirements, we do not see how the enforcers rightly can demand the use of penal sanctions for the purpose. Crime does and should mean condemnation and no court should have to pass that judgment unless it can declare that the defendant’s act was wrong. This is too fundamental to be compromised. The law goes far enough if it permits the imposition of a monetary penalty in cases where strict liability has been imposed.’ ” Commentary, § 11 at 11.
Having stated the general policy, the legislature turned to specifics. ORS 161.095 provides:
“(1) The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act * * *.
“(2) Except as provided in ORS 161.105, 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 statutory scheme, together with the detailed commentary of the Commission, demonstrates the clear and unequivocal policy that all crimes must include a culpable mental state unless ORS 161.105 contains an exception.2 By focusing on the exceptions to this requirement, the majority implicitly accepts the general legislative policy.
B. Exceptions to the Legislative Policy.
With the context of the general rule supplied, a discussion of the exceptions becomes more meaningful. The legislature delineated exceptions to the general policy requiring a *374culpable mental state in ORS 161.105,3 the application of which is not as simple as the majority would suggest. The interplay of the provisions of ORS 161.105 can be analyzed in at least three ways: the majority’s approach, an alternative approach, and the Cho4 approach.
The Majority Approach.
The majority erroneously concludes that ORS 813.010 requires no proof of a culpable mental state as to the “being-under-the-influence-of-an-intoxicant element of DUII.” 309 Or at 371. In reaching this socially desirable result, the majority makes at least three critical mistakes in its analysis: (1) It substantially disregards the longstanding, significant legislative policy (discussed above) that generally requires a culpable mental state for conviction of a crime; (2) it focuses on the wrong section of a statute to explain its rationale and, then, misapplies that section; and (3) it ignores the impact of the analysis required by our decision in State v. Cho, 297 Or 195, 681 P2d 1152 (1984).
The majority focuses on subsection 1 of ORS 161.105. Subsection 1 dispenses with a culpable mental state if:
(a) the offense is merely a violation (the instant offense is not; it is a Class A misdemeanor); or
(b) the offense is outside the Oregon Criminal Code (the instant offense is) and the statute clearly indicates a *375legislative intent to dispense with any culpable mental state.
Assuming, as does the majority, that the second paragraph of the subsection is the statute at issue, the requirement is that the statute clearly indicate a legislative intent to dispense with a culpable mental state.5 The paragraph does not permit an unbridled examination of legislative history, circumstances surrounding the legislation (then, now, or in between), or legislative acquiescence in appellate case law.
The question, under ORS 161.105(1)(b), is whether a statute outside the criminal code clearly indicates an intent to dispense with a culpable mental state requirement. What is a “clear indication”? Epistemologically, one might argue, as does the majority, that the failure to include clearly indicates an intent to dispense. But that argument has been rejected by this court, even in cases where the legislature has set a criminal penalty (as here), because “[t]he mere enactment of a crime without an expressly required culpable mental state is insufficient to establish such a clear indication.” State v. Cho, supra, 297 Or at 201. Although the majority dutifully recognizes that statement in Cho, it does not explain why the statement does not end its analysis under ORS 161.105(1)(b).
The other case cited by the majority, State v. Buttrey, 293 Or 575, 651 P2d 1075 (1982), likewise does not support its conclusion. In Buttrey, a majority of this court determined “that the language of [former] ORS 487.560 [driving while suspended] itself clearly indicates a legislative intent to dispense with a culpable mental state requirement, and the legislative history puts the matter beyond question.” 293 Or at 582. However, to reach that conclusion, the court examined the structure of the entire DWS statute, including the affirmative defenses provided therein, and found the requisite legislative intent. In fact, the Buttrey court pointed out that the part of the statute defining the offense does not, by itself, “clearly [indicate] a legislative intent to dispense with any culpable mental state requirement.” Id. The majority admits that this case is distinguishable from Buttrey: “ORS 813.010 does not *376contain affirmative defenses, nor does it provide any other clear textual indication of legislative intent concerning a mental state requirement.” 309 Or at 368. (Emphasis added.)
The majority thus finds support for its conclusion, not from a circumspect examination of the DUII statute as required by ORS 161.105(1)(b), but from a host of other sources, none of which is appropriate to consult.
(a) History.
The majority asserts that the offense of driving under the influence never has required a culpable mental state “in the 70-year history of this state’s legislation” on DUII. 309 Or at 368. Correct as that statement may be, it does not face squarely, or at all, the clear legislative policy enunciated in 1971, except to note that “the legislature should have specifically spelled out its intention that DUII does not require a culpable mental state.” 309 Or at 369. Agreed.
(b) Oversight.
The majority suggests that the failure to clearly indicate that no culpable mental state was required was a legislative oversight. Indeed, it may well have been. But the legislature has spoken to oversight problems6 and specifically has limited the judiciary’s curative powers.
As a further reenforcement of its position of legislative oversight, the majority reckons that the Commission did not contemplate the application of the statute at issue to DUII, or other “ ‘serious traffic offenses.’ ” 309 Or at 370. That may be, but the Committee on Judiciary, which rewrote the Oregon Vehicle Code in 1975 (to which the majority refers), did so contemplate. Of the five serious traffic offenses, two specifically provide for a culpable mental state (dangerous driving and eluding a police officer).7
*377(c) Outside the Criminal Code.
The majority opinion apparently takes comfort in the suggestion that the 1971 Legislative Assembly was writing a “criminal code, not the motor vehicle code” 309 Or at 370. (Emphasis in original.) One can hardly review ORS 161.105 without reaching the conclusion that the 1971 Legislature spoke to crimes beyond the confines of the criminal code, its specific referent in ORS 161.105(1)(b) and (2). Nor should the majority take solace in its “.990 crimes” explanation. 309 Or at 370. At the time the Commission was drafting the proposed revision, at the time the legislature enacted the revision, and until 1975, the DUII statute was a “.990” crime. See former ORS 483.992 (repealed by Or Laws 1975, ch 451, § 291).
To summarize, even assuming that the majority is applying the correct provision of ORS 161.105 to the issue at hand, the conclusion it reaches — that the DUII statute “clearly indicates a legislative intent to dispense with any culpable mental state requirement” — is incorrect.
An Alternate Approach.
The fundamental difficulty with the majority opinion is its focus on the second paragraph of the first subsection of the exception statute, ORS 161.105.8 That statute, in subsections (1)(b) and (2), provides two different approaches for ascertaining whether a statute outside the criminal code is a strict liability statute.9 The message I receive from the first two subsections of ORS 161.105 is, in simplified terms, in dealing with statutes “outside the Oregon Criminal Code”:
(a) For statutes in existence on January 1, 1972 (the effective date of the Oregon Criminal Code), a culpable mental state may be dispensed with if the legislative intent to do so is “clearly indicated.” ORS 161.105(l)(b).
(b) For statutes enacted after January 1, 1972, an offense *378that requires no culpable mental state constitutes a violation, unless the statute otherwise provides. ORS 161.105(2).
Thus, if the statute was in existence on January 1, 1972, ORS 161.105(1) applies; if the statute was enacted after January 1,1972, ORS 161.105(2) applies. Because the statute at issue specifically falls into the category established by subsection (2) (and not subsection (1), as discussed by the majority), the test is not “clearly indicates an intent to dispense” but “otherwise provides.”10
Subsection (2) says to me that in statutes enacted outside the criminal code after January 1, 1972, wherein no culpable mental state is required (and none is mentioned in ORS 813.010), the offense is a violation, unless the legislature “otherwise provides.” Were I writing on the proverbial clean slate, I would assert that the legislature, by establishing that violation of the DUII statute is a Class A misdemeanor, has otherwise provided; that is, the exception referent is to constituting a violation, not to the presence or absence of a culpable mental state requirement. Thus, under ORS 161.105(2) — which is the applicable provision — DUII is a strict liability crime because (a) the statute requires no culpable mental state, and (b) the legislature has otherwise provided that DUII is a Class A misdemeanor. Under this approach, the legislature has done all it must do to make a post-1971 statute outside the criminal code a strict liability crime. Unfortunately, however, I am not writing on a clean slate and that conclusion is precluded by our decision in State v. Cho, supra, applying a two-part analysis.
Cho held that a statute enacted after January 1, 1972, must both provide that the offense is not a violation and clearly indicate a legislative intent to dispense with the culpable mental state requirements. State v. Cho, supra, 297 Or at 200.11 The effect is to combine the separate statutory require*379ments of ORS 161.105(1)(b) with 161.105(2). The primary rationale stated was that ORS 161.105(2) does not address whether a culpable mental state is required, and, consequently, does not provide an exception to ORS 161.095(2) or 161.115(2). However, if I am correct in my assertion of the independent status of ORS 161.105(2), then the two general policy statements in ORS 161.095(2) and 161.115(2) are not to be applied because each subsection specifically acknowledges the overriding vitality of ORS 161.105 by announcing that both subsections operate “[e]xcept as provided in ORS 161.105.” Stated another way, the two subsections at issue speak to two different time frames: (1) pre-1972 (ORS 161.105(1)(b)) and (2) post-1971 (ORS 161.105(2)). Effect should be given to each, independent of the other. Because of our decision in Cho, we are bound — short of overruling Cho — by its two-part analysis.
The Cho Analysis.
In State v. Cho, supra, this court correctly began its analysis with ORS 161.105(2):12
“Because these statutes were enacted after January 1, 1972, and are outside the Oregon Criminal Code, ORS 161.105(2) must be applied to determine whether the offense * * * is a violation or a crime. That subsection is clear. The offense is a violation unless the legislature has otherwise provided. That is exactly what the legislature has done. It has provided that this offense is a Class A misdemeanor. That does not answer the question, however, as to whether a culpable mental state is an element to be pleaded and proved to establish a breach of these * * * laws.” 297 Or at 199.
To determine whether a culpable mental state is required, the court then looked to ORS 161.105(l)(b). In concluding that the wildlife law involved in that case required proof of a culpable mental state, the Cho court embraced the following approach:
“* * * There is only one way in Oregon to establish a crime outside the criminal code which does not require a culpable mental state. That is for the legislature to enact a statute, after January 1, 1972, which provides that an offense is not a violation, and for the offense to clearly indicate a legislative *380intent to dispense with the culpable mental state requirement.” 297 Or at 200. (Emphasis in original.)
Thus, in Cho, this court determined that for a post-1971 statute outside the criminal code, both ORS 161.105(2) and 161.105(1)(b) must be applied to determine whether it requires a culpable mental state.
Under Cho, then, the question boils down (as it does under the majority’s analysis) to whether the statute “clearly indicates” a legislative intent to dispense with a culpable mental state requirement. For the reasons stated above, I submit that the majority has reached the wrong conclusion under Cho. Because Cho states the current law in Oregon, I have set forth below what I believe to be the proper Cho analysis.
ORS 813.010 does not “clearly indicate” a legislative intent to dispense with a culpable mental state requirement, because “[t]he mere enactment of a crime without an expressly required culpable mental state is insufficient to establish such a clear indication.” State v. Cho, supra, 297 Or at 201. The DUII offense is a misdemeanor, not a violation, ORS 813.010(3), and thus, even though the “statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required.” ORS 161.115(2).
DUII has two material elements:13 (1) driving a vehicle (2) (a) while under the influence of intoxicating liquor and/ or a controlled substance, or (b) with a BAC of .08 percent or more. See UCrJI No. 2704; cf. State v. Buttrey, supra, 293 Or at 582 (two elements to the crime of DWS). To be guilty of DUII, a person must act “with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state.”14 ORS 161.095(2). At a minimum, the state must prove that a defendant acted with criminal negligence in respect of both elements of DUII. ORS *381161.115(2). In respect of the circumstance of being intoxicated or having a BAC of .08 percent or more, proof of criminal negligence will suffice.15 Because the concept of a criminally negligent conduct element is undefined, the state must prove at least a knowing mental state regarding the element of driving.16
This court’s decision in Cho, together with the strong policy of stare decisis, compels me to dissent in this case. Under Cho, there is no way to conclude that DUII is a strict liability crime. Defendant in this case wanted to argue that he was not criminally negligent in respect of the element of being under the influence (while he drove). Whether defendant had a culpable mental state was at issue and his defense of lack of culpability should have been heard. The trial court erred in not allowing that defense.
II. CONCLUSION
Were I writing for the majority, I would analyze this issue as set forth in section I.B.2., above. Even though that analysis requires overruling State v. Cho — an opinion in which I joined — I am now convinced that the alternative approach is the only approach that works to make each part of the statute have meaning. However, a lone dissenter does not have the power to overrule a case, and accordingly, I must treat it as the law in Oregon. It is unfortunate that the majority has inexplicably refused either to perform a complete analysis under Cho (which would lead to a contrary conclusion) or to overrule that case.
Fadeley, J., joins in this dissent, other than part I.B.2.
The issue is not, as stated by the majority, whether a defendant may be convicted of violating ORS 813.010 (driving under the influence of an intoxicant) without proof of a culpable mental state with reference to the element of being under the “influence of an intoxicant.” 309 Or at 364.
The majority also ignores ORS 161.115, which provides, in part:
“(1) If a statute defining an offense prescribes a culpable mental state but does not specify the element to which it applies, the prescribed culpable mental state applies to each material element of the offense that necessarily requires a culpable mental state.
“(2) Except as provided in ORS 161.105, if a statute defining an offense does not prescribe a culpable mental state, culpability is nonetheless required and is established only if a person acts intentionally, knowingly, recklessly or with criminal negligence.”
ORS 161.105 provides:
“(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.
“(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.”
See State v. Cho, 297 Or 195, 681 P2d 1152 (1984).
ORS 161.105(1) (b) actually provides that a culpable mental state is not required if “[a]n offense * * * clearly indicates a legislative intent” to dispense with a culpable mental state. The only sensible reading of this provision is that the statute must dispense with a culpable mental state requirement.
ORS 174.010 provides:
“In the construction of a statute, the office of the judge is simply to ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted, or to omit what has been inserted; and where there are several provisions or particulars such construction is, if possible, to be adopted as will give effect to all.”
The official commentary to the revised code states:
“The culpability definitions set forth in the Oregon Criminal Code would be adopted by the proposed draft. See, especially, §§ 89 & 90 [dangerous driving].” Commentary to Proposed Oregon Vehicle Code § 86, 68 (1975).
The majority essentially “reads out” ORS 161.105(2). See Comment, Strict Liability and Criminal Sanctions: The 1971 Revisions to the Oregon Criminal Code, 13 Will L J 365, 382 (1977) (“The provision [ORS 161.105(2)] should be repealed or construed in a way that avoids confusing and inconsistent results.”). However, this court is bound to construe a statute in a manner which will give effect to all of its provisions. ORS 174.010.
A third approach, not relevant to offenses outside the criminal code, appears as ORS 161.105(1)(a).
The Commentary supports that argument by stating:
“Subsection (2) applies the minimal culpability requirements to statutes outside the criminal code that may be enacted after its effective date. However, the Legislature will have flexibility to specifically provide otherwise, but in the absence of a statute that provides to the contrary, an offense that requires no culpable mental state will constitute a violation.” Commentary, § 9 at 9.
Cho was followed, without further analysis, in State v. Guthrie, 304 Or 52, 741 P2d 509 (1987).
See n 3, supra, for the text of the statute.
Neither the majority nor the litigants have performed an elemental analysis of the crime of DUII. Although the majority states its holding in terms of the “being-under-the-influence-of-an-intoxicant element of DUII,” it generally treats the issue as whether DUII is a strict liability crime. To add clarity to our analysis, we should always determine the elements of the crime at issue and the mental state requirement for each element. See e.g., ORS 161.115(1), set out in n 2, supra.
As examples of elements which do not necessarily require a culpable mental state, the Commentary lists “the statute of limitations, jurisdiction, venue and the like.” Commentary, § 8 at 9.
ORS 161.085(10) provides:
“ ‘Criminal negligence’ or ‘criminally negligent,’ when used with respect to a result or to a circumstance described by a statute defining an offense, means that a person fails to be aware of a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to be aware of it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.”
Being under the influence of an intoxicant or having a BAC of .08 percent or more is a circumstance. See Robinson & Grall, Element Analysis in Defining Criminal Liability: The Model Penal Code and Beyond, 35 Stan L Rev 681, 697 (1983).
Note that criminal negligence is defined by ORS 161.085(10), see n 15, supra, with respect to circumstantial elements, but not with respect to conduct elements. See generally Robinson & Grail, Element Analysis in Defining Criminal Liability, supra.