Voluntary intoxication is not a defense. However, in most jurisdictions involuntary intoxication is a defense to most offenses. In some jurisdictions, involuntary intoxication is treated as an affirmative defense, which means that the prosecution must disprove it beyond a reasonable doubt. In other places, it is simply not available as a defense to a DUI.
A Texas appeals court has which held that involuntary intoxication is not a defense in a DWI case involving both alcohol and Ambien. This same appellate court approved a defense that would be characterized as involuntary intoxication in most jurisdictions in a case of the mistaken pill. The Defendant meant to take Soma and Ultram in the morning. He had taken Ultram for about seven years, and in order to encourage him to take his medication his wife put out the pills for him. On the date of his arrest she apparently put out an Ambien, and he took it believing it to be something else.
The trial court rejected the defense of accident or involuntary intoxication, and the court of appeals agreed. However, the judges found that the defense of “involuntary act” was available if the Defendant introduced evidence that an independent event, such as the conduct of a third party, that could have precipitated the incident. If, for example, a third party slips a “mickie” in a drink or forces a person to consume an intoxicant and get behind the wheel, then the voluntary conduct defense is available. Although the Defendant voluntarily took the pills his wife laid out for him, he involuntarily took the Ambien because of his wife’s act.
Many courts have concluded that the most difficult cases to decide involve those where a defendant knowingly ingested a prescription drug. There is an Illinois case that stands for the proposition that the unexpected and unwarned adverse effect of a drug taken on doctor’s orders is involuntary. California also has case law holding that intoxication caused by knowingly ingesting prescription medication can be either voluntary or involuntary, depending on whether the defendant had reason to know he/she would become intoxicated.
The best known Georgia case involving Ambien sleep driving is Myers v. State, 302 Ga. App. 753 (2010). In this case the lady had taken two Ambien, her regular daily dose of Xanax, and had a couple of glasses of wine before bedtime. The jury charge instructed the jury that, “The criminal intent element …is simply the intent to do the act which results in the violation of the law, not the intent to commit the crime itself. Consequently, to the extent that the defendant here argues inability to form an intent to commit the crime for which she is charged, it is immaterial, which means it should not be considered. While proof of criminal intent is required to convict the defendant of the crimes with which she is prosecuted, the state is not required to prove that the defendant intended to drive under the influence of alcohol in violation of the law or on the wrong side of the road. Rather, it is required to prove beyond a reasonable doubt only that while intoxicated she drove and drove crossing over…the right line, intending such acts.”
Relying on earlier Georgia case law, the Court of Appeals upheld the conviction. Those older cases had held that the criminal intent required for a conviction is simply the intention to commit the act which results in the violation of the law, not the intent to commit the crime itself. In other words, the Court relied on language that is included in most jury instructions in Georgia DUI cases, which basically instructs the jury that DUI is a crime of general intent and not specific intent. Therefore, and the record is not clear, perhaps trial counsel should have argued that his client lacked the intent to drive as opposed to the intent to commit the crime. Both the jury instruction approved in this case and the older cases do require the intent to drive; however, in this decision the Court of Appeals seemed to emphasize that the Appellant had intentionally ingested Xanax, Ambien, and alcohol, and then drove in an intoxicated state. What is overlooked (or perhaps assumed) is the language from several older cases and the jury instruction in this case - “that she intended to drive.” Therefore, even when faced with a generally hostile jury instruction, the lack of general intent may still be argued.
Despite some slivers of hope and some very narrow openings the courts have left us when considering, and usually rejecting, other defenses, there is really a dearth of case law regarding actus reus in the context of Ambien sleep driving defenses. Georgia has a number of criminal cases stating that it is a requirement but not defining the term. Nevertheless, even the Texas appeals court has recognized that a voluntary act (actus reus) is required, and that may be the best approach of all.
A state may make an offense a “strict liability” offense or a crime of general intent, thus eliminating the need to prove mens rea (intention to commit a crime). But the State must still prove that there was a voluntary act - the actus reus. Sleep driving by its very nature is not a conscious, much less voluntary, act.
The Model Penal Code Section 2.01 lends support to this position.
1) A person is not guilty of an offense unless his liability is based on conduct that includes a voluntary act or omission to perform an act of which he is physically capable.
2) The following are not voluntary acts within the meaning of this Section:
a) a reflex or convulsion.
b) a bodily movement during unconsciousness or sleep.
Similarly, in Colorado the applicable statute, C.R.S. 18-1-502 provides that, “The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which he is physically capable of performing.” If a culpable mental state is not required, Colorado law characterizes the offense as a “strict liability” offense. Nevertheless, a voluntary act or actus reus is still necessary to obtain a conviction.
In a non-DUI case the Washington Court of Appeals has held that, although the legislature has the authority to create a crime without a mens rea element, a minimal mental element is required to establish the actus reus, and that is the element of volition. State v. Deer, 244 P.3d 965 (Wn. App. 2010). As a matter of Federal constitutional law the State bears the burden of proving beyond a reasonable doubt that a defendant committed a volitional act. This argument should certainly be made in any case where a judge is not inclined to recognize the actus reus requirement; if is not merely common law in origin but has become Constitutionally mandated by virtue of the 14th Amendment. While we understand that there are genuine cases of otherwise innocent people sleep driving, we can expect continued hostility from prosecutors (one of whom recently characterized the defense as a “fad”) and skepticism from thebench. Nevertheless, thorough research of the legal precedents applicable in a particular case, and in the event they are sparse, from around the country should yield at least one viable defense theory that even the worst judge will not reject, or face reversal.
Written by Allen Trapp who is board certified by the National College for DUI Defense and the author of Georgia DUI Survival Guide Visit Website
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