State v. Olmstead

780 P.2d 1201 (1989)

99 Or.App. 41

STATE of Oregon, Respondent, v. Kenneth Dale OLMSTEAD, Appellant.

88-11312; CA A50685.

Court of Appeals of Oregon.

Argued and Submitted May 22, 1989.

Decided October 18, 1989.

Reconsideration Denied November 24, 1989.

*1202 Michael McGrady, Eugene, argued the cause and filed the brief for appellant.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before RICHARDSON, P.J., and NEWMAN and DEITS, JJ.

PER CURIAM.

Defendant appeals from his convictions, on stipulated facts, for driving under the influence of intoxicants, ORS 813.010, and driving with a suspended license. ORS 811.182. Before trial, defendant filed notice of his intent to defend both charges by asserting that he was guilty but insane. ORS 161.295. The state moved that the defense be stricken. The court granted the state's motion.

Defendant's only contention is that the court erred in striking the defense. The defense under ORS 161.295 is not available, because driving under the influence of intoxicants and driving with a suspended license are both strict liability offenses. State v. Buttrey, 293 Or. 575, 651 P.2d 1075 (1982); State v. Maguire, 78 Or. App. 459, 717 P.2d 226 (1986), aff'd without opinion by an equally divided court 303 Or. 368, 736 P.2d 193 (1987).

Affirmed.

NEWMAN, Judge, dissenting.

For the reasons stated by Warden, J., in his dissent in State v. Maguire, 78 Or. App. 459, 717 P.2d 226 (1986), affirmed without opinion by an equally divided court, 303 Or. 368, 736 P.2d 193 (1987), I believe that the defense of guilty but insane should be available to a defendant charged with a strict liability offense. Accordingly, I dissent, because I believe that the court erred when it granted the state's motion to strike that defense.