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Luster v. State12/2/1987
he influence of an intoxicating beverage. Since there was no statute on the books specifically dealing with this offense, a logical place to turn was assault and battery with a dangerous weapon.
But "intent to do bodily harm" must be proved to convict a person of assault and battery with a dangerous weapon. That created a problem. It would be highly questionable to assert that a drunk driver, by the mere act of driving a car, had the intent to use his vehicle in such a manner.
To get around this problem, the courts created a "fiction": it was sufficient that the defendant did something illegal — here, operate a motor vehicle in an illegal manner. Once he did, that "substituted" for the intent required by statute.
The problem with this "fiction" is that it circumvents the dictates of the legislature. When the legislature enacted the statute dealing with assault and battery with a dangerous weapon, it required that there be an "intent to do bodily harm." As Judge Bussey said in James v. State, 599 P.2d 411, 412-13 (Okla. Crim. App. 1979), a case that also dealt with assault and battery with a dangerous weapon:
When a statute makes an offense to consist of an act combined with a particular intent, that intent is just as necessary to be proved as the act itself, and must be found as a matter of fact before a conviction can be had; and no intent in law or mere legal presumption, differing from the intent in fact, can be allowed to supply the place of the latter.
Id. (citing Thacker v. Commonwealth, 134 Va. 767, 114 S.E. 504, 505 (1922)) (emphasis added).
Yet when the assault involves an automobile, the Court has essentially said that when intent is an essential element of the offense, that intent can be supplied if the defendant acted in a negligent manner. The better analysis would be to simply acknowledge that for some crimes intent is not needed and that recklessness or negligence will suffice. See 1 W. LaFave and A. Scott, Substantive Criminal Law 314 (1986). The legislature obviously recognized this problem and enacted 47 O.S.Supp. 1983 § 11-904 [47-11-904]. At the time appellant was charged, that statute read:
Any person who has a blood or breath alcohol concentration, as defined in Section 756 of Title 47 of the Oklahoma Statutes, of ten-hundredths (0.10) or more at the time of a test of such person's blood or breath administered within two (2) hours after the arrest of such person and is involved in a personal injury accident while driving or operating a motor vehicle within this state may be charged with a violation of this section. . . .
47 O.S.Supp. 1983 § 11-904 [47-11-904]. The statute was amended in 1985 to more clearly define who could be charged under it, but the essence of the statute has remained the same. If (1) a person who is intoxicated (2) is operating a motor vehicle (3) and is involved in a personal injury accident, that person can be held criminally liable regardless of his intent. Or to put it another way, section 11-904 eliminated the intent requirement "fiction" that this Court developed to allow the State to charge drunk drivers for assault and battery with a dangerous weapon when injuries were involved.
On the other hand, the legislature has dictated that intent is required for assault and battery with a dangerous weapon. Negligence should not be defined in a way that elevates it to the level of, and as a substitute for, intent. See 1 LaFave & Scott, supra. To do that would be close to placing a binding presumption on the defendant — something that this Court would not permit in James, supra.
Since the legislature enacted a statute specifically
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