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To What Elements of Attempted DUII Does the Mental State Apply?

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by: Ryan • October 25, 2011 • no comments

Lots of weird cases and opinions out of the COA today. Come back later today for Alex's summaries. Very much worth your time. I'll have some comments later about the equal privileges case, but right now, I just want to say something about Attempted DUII, which the COA told us once again does in fact exist.

"Attempt" crimes require an intentional mental state. So, at a minimum, the defendant must intend to drive, in order to be guilty of Attempted DUII. But must he intend to be intoxicated?

In other words, can a defendant get a judgment of acquittal if the state can only prove he knew he was intoxicated, or can't even prove that? There is a fantastic case called St v. Moreno which really highlights the difference between knowing and intent. The facts of Moreno are of course quite different than those of an attempted DUII, but the opinion serves to highlight that the difference between knowledge and intent is not just rhetorical, and that there are times the trial court needs to acquit when the state has only proven knowledge. (In today's case, incidentally, the defendant wasn't convicted of attempted DUII - it served only to provide PC to arrest - so a judgment of acquittal wasn't relevant.)

What's an example of a defendant who intends to drive intoxicated? "Hey Johnny, I bet I can get totally wasted and still beat you in drag race around the block."

That's an extreme example, but what other kind of scenario would involve a defendant who intended to drive intoxicated? A driver may know he's intoxicated when he's driving, but that's not his purpose.

Anyway, the state might argue that the mental state of intent doesn't apply to intoxication. Maybe they're right, and I won't get into all arguments pro and con here, since we can expect the Oregon Supreme Court to weigh in soon enough on mental states, elements and crimes outside the criminal code (opinion pending in State v. Rainoldi).

But if you get a client who is actually charged with attempted DUII, be prepared to make this argument. If intent does apply to intoxication, it may be a nearly impossible hurdle for the state to meet.