What a frivolous hypothetical about attempted DUII can tell us about one theory of attempted aggravated murder
by: Ryan • October 6, 2014 • no comments
Shortly before the appellate courts endorsed the concept of Attempted DUII, I had joked about the circumstances necessary for a person to be convicted. Since attempted duii is an intent crime, would you have to announce, "I plan to get really, really drunk and drive around on a public highway?"
In reality, you can be convicted of attempted duii for (1) already being intoxicated and (2) attempted to drive. What my frivolous hypothetical raised, implicitly, is this question: can you be guilty of attempted duii for intending (but failing) to be intoxicated when you drive?
There is, of course, no required mental state for duii, but there is for attempted DUII, because all attempts are necessarily "intent crimes." That's for the simple reason that intent is part of the statutory definition of attempt.
It's easy enough to imagine "attempted driving," because driving is conduct, and there is nothing wrong -- conceptually or practically -- with intending particular conduct: attempted possession, attempted theft, attempt delivery.
But intoxication is not conduct. It's a circumstance: Being drunk. Like a child's age is a circumstance. Or that a particular location is within 1000 feet of a school.
And we know -- per statute -- that the mental state of intentionally does not apply to circumstances, only conduct or result. ORS 161.085: (7) “Intentionally” or “with intent,” when used with respect to a result or to conduct described by a statute defining an offense, means that a person acts with a conscious objective to cause the result or to engage in the conduct so described.
So what do you do if you have an "intent crime," like attempted DUII, but you can't apply "intentionally" to the circumstance of being intoxicated?
My answer is this: attempted duii simply does not exist, as a matter of law, where the person is not in fact intoxicated. In other words, if the defendant smoked some oregano, and believed himself quite high when he got into his vehicle, could he -- as a matter of law -- be convicted of attempted duii? I don't think so.
Which brings us to attempted aggravated murder, based on a theory of attempting to kill two people in one criminal episode. You might think that sounds okay, because the intentional mental state applies only to conduct: attempting to kill one person and attempting to kill another person. But in fact, if you look at the definition of the completed crime, there is conduct and then there is a circumstance:
- 163.095 “Aggravated murder” defined. As used in ORS 163.105 and this section, “aggravated murder” means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:
- (d) There was more than one murder victim in the same criminal episode as defined in ORS 131.505.
Boy, the legislature saved us some heavy lifting by describing the aggravating factor as a circumstance. And aside from it being labeled as a circumstance, it is written like a circumstance: it does not require the defendant to have personally killed the other murder victim, only that there was a person killed during the same criminal episode.
Because it is a circumstance, the mental state of intentionally cannot apply to the fact that there was another murder victim from the same criminal episode. Because attempt, by definition, requires an intentional mental state, a defendant cannot be found guilty of attempted aggravated murder for attempting to kill one person while attempting "another person was a murder victim." There is a reason that previous sentence makes no grammatical sense. When the state charges it as attempting to kill one person while attempting to kill another, they have subtly converted a circumstance -- another person is dead -- into conduct. But legally, there is nothing in case law or statute that allows one particular type of element to be converted into another type of element, via application of a particular mental state to the crime as a whole.
The remedy is a demurrer for failure to allege the crime of Attempted Aggravated Murder. See State v. Touchstone.
This may not be a big thing in other counties. These types of attempted aggravated murders are most frequent in Multnomah County, where it's charged whenever a gun is fired at a couple of people.
