
    Submitted on record and briefs October 30, 1995,
    compensatory fine vacated; otherwise affirmed March 6,
    petition for review denied August 13, 1996 (324 Or 78)
    STATE OF OREGON, Respondent, v. HENRY A. RUTHERFORD, Appellant.
    
    (Z169783; CA A89158)
    912 P2d 431
    Garrett A. Richardson and Multnomah Defenders filed the brief for appellant.
    Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Jonathan H. Fussner, Assistant Attorney General, filed the brief for respondent.
    Before Richardson, Chief Judge, and Riggs and Landau, Judges.
    PER CURIAM
   PER CURIAM

Defendant pled guilty to driving while under the influence of intoxicants. ORS 813.010. The court suspended imposition of sentence and imposed three years probation. As a condition of probation, the court imposed a $1,000 compensatory fine.

ORS 137.101(1) limits the imposition of a compensatory fine to a situation in which “the person injured by the act constituting the crime has a remedy by civil action.” State v. Barkley, 315 Or 420, 846 P2d 390, cert den 510 US 837 (1993). Defendant contends, and the state agrees, that the court erred in imposing a compensatory fine because there was no evidence in the record that defendant’s act of driving under the influence of intoxicants caused damages in that amount or that defendant would be liable for those damages in a civil action. We accept the state’s concession of error.

Compensatory fine vacated; otherwise affirmed.  