JONES, J.

The Court of Appeals is affirmed.

Lent, J., dissenting opinion.

Linde, J., dissenting opinion.

JONES, J.

This case presents two questions:

(1) Does notification that certified mail is at the post office constitute notice of driver's license suspension under ORS 482.570 when the letter is returned to the Motor Vehicles Division of the Department of Transportation (division) marked "unclaimed"?

We hold that the defendant was properly notified under the statute.

(2) May a defendant establish the affirmative defense of lack of notice by not claiming certified mail after being advised that the mail awaits pickup at the post office?

We hold that a defendant may not.

In this case, defendant appeals his conviction under ORS 487.560 for driving while suspended. The state proved at trial that defendant drove a car on a highway while his license was suspended. The state introduced at trial an envelope in which the division had mailed a copy of the suspension order by certified mail restricted delivery, return receipt requested, to defendant at his address as shown by division records. The envelope showed that the postal service returned the letter to the sender as "unclaimed." Defendant does not dispute these facts. However, defendant argues that he should be acquitted because the division did not notify him of his suspension as required by ORS 482.570 and, even if the division did send the notice, the state's case proves his affirmative defense that he had not received notice of suspension.

At the time of the offense, ORS 482.570 (now ORS 809.430) provided:

"* * * When the division, as authorized or required, suspends, revokes or cancels a license or the right to apply for a license to operate motor vehicles, it shall give notice of such action to the person whose license or right is affected. The notice shall state the nature and reason for the action and, in the case of a suspension, whether it was ordered by a court. Service of the notice is accomplished either by mailing the notice by certified mail restricted delivery, return receipt requested, to the person's address as shown by division records, or, by personal service in the same manner as a summons is served in an action at law." (Emphasis added.)

Before trial, defendant notified the state that he intended to rely on an affirmative defense under ORS 487.560 (1983), which provided in pertinent part:

"(1) A person commits the crime of driving while suspended or revoked if the person drives a motor vehicle upon a highway during a period when the person's license or permit to drive a motor vehicle or the person's right to apply for a license to drive a motor vehicle in this state has been suspended or revoked by a court or by the division * * *.

"(2) In a prosecution under subsection (1) of this section, it is an affirmative defense that:

* * * * *

(b) The defendant had not received notice of the defendant's suspension or revocation as required by ORS 482.570 * * *."

At trial, the state produced the only evidence, including copies of a suspension notice that the division had mailed to defendant and of the envelope with the "unclaimed" stamp on it. Defense counsel argued at trial and on appeal that the "unclaimed" mark on the envelope is "sufficient evidence by a preponderance of the evidence to meet the standard of [ORS 487.560 (2)(b)]." The trial judge and the Court of Appeals rejected this argument.

NOTICE UNDER ORS 482.570

The record shows that the postal service leaves a pink slip in accordance with Section 912.55 of its Domestic Mail Manual to notify persons that certified mail is being held for them at the post office. During argument defense counsel stated his position on whether defendant received pink slip notification:

"DEFENSE COUNSEL: My position now is that * * * receipt of the pink slip is very, very different from receipt of the notice of suspension.

"THE COURT: You're willing to allow them the presumption about receipt of the pink slips because you don't think that's an element but notice of suspension is an element, is that what you're saying?

"DEFENSE COUNSEL: Right, right. I can't deny them the presumption of the pink slip."

By using the word "presumption," the court and counsel were not referring to an evidentiary presumption under Chapter III of the Oregon Evidence Code. Under OEC 309, as interpreted by this court in State v. Rainey, 298 Or. 459, 693 P.2d 635 (1985), there are no presumptions in criminal proceedings that can be used against an accused relating to an element of the crime. The colloquy referred to whether defendant contended that he never received the pink slip. Defendant apparently does not contest that he received a pink slip notifying him of certified mail.

The issue boils down to whether the state proves notice by showing that defendant received a pink slip notification that certified mail is waiting for him at the post office, and whether defendant's affirmative defense fails if the evidence reveals that he received the pink slip even though no other evidence shows that he ever physically received the letter of suspension from the division.

This court made it clear in State v. Buttrey, 293 Or. 575, 651 P.2d 1075 (1982), that a criminal intent to drive with a suspended license was unnecessary. In Buttrey, the defendant stipulated that she was driving on a highway. A copy of the order suspending her driver's license was received in evidence. Attached to the suspension order was a certificate that the copy of the order was correct and was mailed to the official address as reported to the division. 293 Or at 578. No return receipt was offered in evidence and no evidence, other than the suspension order itself and the attached certificate, showed that the defendant had received the notice of suspension. 293 Or at 579. This court affirmed her conviction despite her argument that the state had not proven mens rea and that the shifting of the burden under ORS 487.560 (2) was unconstitutional. Id.

Justice Peterson, writing for the majority, stated that a culpable mental state is not an element of driving while suspended under ORS 487.560:

"The legislative intent is clear: The state makes a prima facie case upon proof of the two elements in ORS 487.560 (1), without proof of a culpable mental state, i.e., without proof of any knowledge by the defendant of the license suspension. The defendant can avoid liability by establishing the affirmative defense by a preponderance of the evidence. ORS 161.055 (2). The state, in turn, can avoid the effect of the notice defense afforded by ORS 487.560 (2)(b) by establishing beyond any reasonable doubt that the defendant `refused to sign a receipt for the certified mail containing the notice,' ORS 487.560 (3)(a), or that `[t]he notice could not be delivered * * * because he had not notified the division of his address or a change in his residence as required by subsection (3) of ORS 482.290,' ORS 487.560 (3)(b), or that the defendant had been informed by a trial judge that the judge was ordering a suspension of the license, ORS 487.560 (3)(c), or that the defendant had actual knowledge of the suspension, ORS 487.560 (3)(d).

"Subsections (1), (2) and (3) of ORS 487.560, considered together and with ORS 161.055 (2) (which defines an affirmative defense), set forth a procedure for the blameless defendant to establish a defense. The statutes clearly indicate that the legislature intended that the state, in its case in chief, need not prove any culpable mental state, but that the defendant might avoid conviction for conduct which is otherwise criminal by establishing one of the defenses enumerated in ORS 487.560 (2)(b). As discussed below, if the state is required to prove a culpable mental state as an element of the crime, then subsections (2)(b) and (3)(d) of the statute are surplusage.

"The legislative history confirms this analysis. It reveals that the legislature was concerned with a massive social problem. Suspended drivers constituted a dangerous class of drivers, causing carnage on the highways and clogging courts. Prosecutions were difficult. The legislature believed that this class of drivers caused unnecessary human suffering and constituted, as a class, a disproportionate danger. The legislature was so concerned with the risk to person and property that it wanted to make certain conduct punishable as a crime, without fault." 293 Or at 583-84 (footnotes omitted).

The plain reading of ORS 482.570 is that the state accomplishes the giving of notice either by mailing the notice by certified mail or by personal service. The legislature could have made the statute more specific by specifying that all the suspended operator need receive was the pink slip notifying him of the presence and availability of certified mail. As the legislative history of this statute demonstrates, the legislature did not intend that the defendant need actually receive the suspension letter, open it and read it before notice was deemed satisfied. Individuals who have their driving privileges revoked or suspended are entitled only to the notice articulated in the statute. Defendant received the notice that the statute provides. The division sent defendant a letter of notice of his driving suspension by certified mail restricted delivery, return receipt requested. Defendant does not contend that notice was not mailed to his address as shown by division records or that the address was not his address. Therefore, even with this minimal evidence, the division complied with the statute and accomplished notice by sending the letter certified mail restricted delivery, return receipt requested. ORS 487.560 (1)(a) requires a defendant to prove by a preponderance of the evidence, ORS 161.055 (2), that he did not receive the notice required to be given by ORS 482.570.

AFFIRMATIVE DEFENSE UNDER ORS 487.560 (3)

The affirmative defense of ORS 487.560 (3)(c) is a limited defense of lack of notice that mitigates potential unfairness to a driver who has not received notice of suspension as required by ORS 482.570. Defendant argues that he proved this affirmative defense by pointing to undisputed evidence that the suspension letter was returned "unclaimed." The statute's legislative history demonstrates that the legislative intent supports the state's position and not the contentions of defendant concerning what notice was intended and what defense was available.

LEGISLATIVE HISTORY OF ORS 482.570 and 487.560

When first enacted in 1965, the statutes provided that notice of suspension or revocation of a license could be given either by personal delivery or by mail. Notice by mail was afforded a disputable presumption of receipt. Or Laws 1965, ch 321, § 2. In 1971, the legislature changed the statute to provide that notice was accomplished either by mailing the notice by certified mail or, at the option of the division, by personal service. Or Laws 1971, ch 428, § 1.

Representative Tony Meeker, the sponsor of House Bill 1655, testified before the House Committee on Transportation. The minutes summarize his testimony as follows:

"* * * many times the individuals who are arrested for violating the law of driving with a suspended license will indicate in their arguments that they did not know their license was suspended. The present law reads that notice by mail is authorized to the individual. He quoted the law and added this has not been able to stand up in court and HB 1655 is to correct that law, either by mailing the notice by certified mail with return receipt requested or at the option of the Motor Vehicles Division to offer by personal service in same manner as in action at law. He said that in discussing this with several attorneys, they had indicated to strengthen the bill, an amendment might be added if the Committee felt it desirable 'that refusal of the letter is also significant proof of receipt' because it would be very possible that an individual might refuse a certified letter by looking at the envelope and knowing the contents. He concluded his testimony by saying that this will cost money, and therefore becomes a value judgment of the committee." Minutes, House Committee on Transportation (March 18, 1971) (emphasis added).

The bill passed with the suggested amendment. The legislature obviously intended to address the problem raised when people contend they had no "notice."

In 1973, the statute was amended to read that when certified mail notice is returned unsigned, service of notice shall be accomplished by personal service. Or Laws 1973, ch 643, § 1. Mr. Gil Bellamy, from the Traffic Safety Commission, spoke on behalf of Governor Tom McCall before the Senate Committee on Transportation. He stated that 34 percent of suspension notices were being returned to the Motor Vehicles Division unsigned. Under Senate Bill 637, when a letter is returned, notice will be served in the same manner as a summons in an action at law. Minutes, Senate Committee on Transportation (March 15, 1973).

In 1975, the legislature deleted this provision for mandatory notice and made non-receipt of notice an affirmative defense under ORS 487.560. The 1973-75 Interim Committee on Judiciary, which drafted the revision of the Oregon Vehicle Code, stated in part:

"Paragraph (b) places the burden on the defendant to prove by a preponderance of the evidence that he did not receive the required notice of suspension or revocation. * * * The most vexatious problem that has plagued officials in their attempts to enforce the prohibition against driving while suspended has been their inability to locate the licensee to notify him of the suspension or to prove at trial that notice was received.

"Subsection (3) deals with this dilemma by making the defense unavailable if the certified mail containing the notice has been refused or if the defendant has not kept the division advised of his residence as required by statute. This approach to the notice problem is consistent with State v. Buen, [ 13 Or. App. 426, 509 P.2d 865 (1973)]. ORS 482.570 is amended to delete the provision for mandatory personal service when the certified mail is returned, receipt unsigned. Paragraph (c) takes away the defense if the defendant was previously put on notice by a judge that a suspension of the license was to be ordered by the judge." Proposed Revision, Oregon Vehicle Code, Committee on Judiciary, Commentary § 92 at 72 (January 1975) (emphasis added).

This commentary addresses the "returned unsigned" problem. We discern no significant legal difference between "refusing" a letter from the division and "failing" to claim a certified letter after being notified that the certified letter awaits pickup. The suspended driver cannot defeat the purpose of the statute by either ploy. No law demands that a person accept or pick up certified mail, but the privilege to drive may be lost if the mail is not claimed.

During legislative deliberations on the proposed section that was before the 1975 legislature as part of Senate Bill 1, the project director for the vehicle code revision described the policy behind the section to the Senate Judiciary Committee:

"Section 92 deals with driving while suspended or revoked. This is an offense that the Interim Committee took a hard line on. It will be seen that this would replace the existing statute dealing with driving while suspended or revoked.

"There are two very important policy questions incorporated in this section. One — it has set forth an affirmative defense to the charge. This means that the defendant would have the burden of establishing by a preponderance of the evidence that [he] had not received notice of his suspension as required by statute. In the past, enforcement of this law has been very difficult primarily because of the difficulty, and at times the sheer impossibility of establishing [it] to the satisfaction of the courts. * * *

"What is being put forth in this section is that the burden is going to be shifted so long as there has been a showing that there is a suspension and that the defendant in question was driving at a time he was suspended or revoked."

Chief Judge Herbert Schwab of the Court of Appeals also testified about the need for changes in the law to the Senate Committee on Judiciary. He stated that "there are few prosecutions. The system of notification has worked in reverse since personal service is required. The fact is that lots of people are hard to find. They are finally picked up and they say `no notice.'" (Statements of Schwab, C.J., Tape 2a, side 2, Sen. Comm. on Judiciary, Jan. 28, 1975.) Chief Judge Schwab continued:

"Under present law, a notice of suspension must be personally served by a police officer. Many people are able to avoid receiving the notice and the state has no case. Under Senate Bill 1, the judge's order of suspension in court would speak for itself. If it is an administrative suspension, the motor vehicle department would send the notice to the last address that the driver had given. [And that's where their duty stopped.] Drivers are required to keep the motor vehicle department informed of change of address. This would shift the burden of notification from the state to the defendant. We would see far more citations for driving while suspended, which is a serious offense, and far fewer for no operator's license, which is a minor offense. * * *" Minutes, Senate Committee on Judiciary 6 (January 28, 1975) (bracketed language from tape of hearing, supra; emphasis added).

Based on the foregoing legislative history, we believe that the legislature intended that notice of suspension is complete if it is established that the letter was sent by certified mail restricted delivery, return receipt requested, to the person's address as shown on division records. The legislature did provide an affirmative defense and placed the burden on the defendant to prove that he did not receive notice of the certified mail. But this does not mean that the defendant must receive the actual letter of suspension. The legislature did not intend to create a loophole for suspended drivers by allowing them to avoid receipt of notice simply by refusing or failing to claim certified mail.

We conclude that defendant cannot defeat the charge of driving while suspended simply by not claiming certified mail. The statute requires sending the notice, not that a person actually receive the letter. The proper notice was sent. Defendant received the notice of the certified mail. He failed to claim it. His defense fails.

The Court of Appeals is affirmed.