ORS 161.105¹
Culpability requirement inapplicable to certain violations and offenses

(1) Notwithstanding ORS 161.095 (Requirements for criminal liability), 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 (“Offense” described) to 161.605 (Maximum terms of imprisonment for felonies) and 161.615 (Maximum terms of imprisonment for misdemeanors) to 161.655 (Fines for corporations). [1971 c.743 §9]

Notes of Decisions

Proof of culpable mental state was not re­quired for con­vic­­tion of defendant for sale of unregistered security pursuant to ORS 59.005 (Short title), and thus imposi­tion of suspended 5-year prison term and fine of $5,000 exceeded max­i­mum permissible under this sec­tion. State v. Pierre, 30 Or App 81, 566 P2d 534 (1977)

Sec­tion is not prospective, but is applicable to laws passed prior to January 1, 1972. State v. Pierre, 30 Or App 81, 566 P2d 534 (1977)

Culpable mental state is re­quired as to each ma­te­ri­al ele­ment of charge of being an ex-convict in pos­ses­sion of concealable firearm. State v. Hash, 34 Or App 281, 578 P2d 482 (1978), Sup Ct review denied

Negligent wounding of an­oth­er pursuant to ORS 166.180 (Negligently wounding another) is outside Criminal Code but clearly intends proof of culpable mental state. State v. Orth, 35 Or App 235, 581 P2d 953 (1978)

Offense of wrecker failing to have proper evidence of motor vehicle ownership, as defined by [former] ORS 481.360 (2) and [former] ORS 481.990 (1) is not strict liability crime under this sec­tion. State v. Eyerly, 37 Or App 399, 587 P2d 1039 (1978)

Whether culpable mental state is implicit in of­fense may be determined from nature of proscribed con­duct and resulting penalty. State v. Wolfe, 288 Or 521, 605 P2d 1185 (1980); State v. Baker, 48 Or App 999, 618 P2d 997 (1980)

Where defendant was found guilty of Hit and Run, a traffic viola­tion, and had been convicted within five years of DUII, trial court had authority to impose jail sen­tence for misdemeanor under [former] ORS 484.365; existence of prior con­vic­­tion, not culpable mental state, raises of­fense to misdemeanor. State v. Plummer, 53 Or App 240, 631 P2d 819 (1981)

When a statute clearly indicates neither an intent to dispense with culpable mental state nor clearly indicates an intent to create strict liability crime, of­fense under such statute is a “viola­tion” which, in prosecutor’s discre­tion, can be upgraded to misdemeanor by pleading and proving culpable mental state. McNutt v. State, 295 Or 580, 668 P2d 1201 (1983)

Being under influence of intoxicant is strict liability ele­ment of driving under the influence of intoxicants and no proof is re­quired of culpable mental state. State v. Miller, 309 Or 362, 788 P2d 974 (1990)

In determining whether ele­ment of controlled substance statute (ORS 475.904 (Unlawful manufacture or delivery of controlled substance within 1,000 feet of school)) re­quired culpable mental state, relevant considera­tions included legislative intent in enacting statute, grammatical structure of statutory text and nature of ele­ment in ques­tion. State v. Rutley, 343 Or 368, 171 P3d 361 (2007)

Factors for Determining Whether Ele­ment of Offense Requires Culpable Mental State Are

(1) text of the statute that defines of­fense; (2) whether nature of ele­ment pertains to defendant’s con­duct; (3) legislative history of statute that defines of­fense; and (4) whether requiring culpable mental state for particular ele­ment would frustrate purpose of statute. State v. Rainoldi, 351 Or 486, 268 P3d 568 (2011)

Law Review Cita­tions

13 WLJ 372 (1977)

Law Review Cita­tions

51 OLR 427, 437, 459 (1972); 29 WLR 829 (1993)

Chapter 161

Notes of Decisions

A juvenile court adjudica­tion of whether or not a child committed acts which would be a crim­i­nal viola­tion if committed by an adult must necessarily include an adjudica­tion of all af­firm­a­tive de­fenses that would be available to an adult being tried for the same crim­i­nal viola­tion. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Cita­tions

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code


Notes of Decisions

Legislature’s adop­tion of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied

1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2019) (last ac­cessed May 16, 2020).
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2019, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2019) (last ac­cessed May 16, 2020).
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.
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