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

     Barbiturates, benzodiazepines, and other sedative-hypnotics have diverse chemical and pharmacologic properties that share the ability to depress the activity of all excitable tissue, especially the arousal center in the brainstem. Sedative-hypnotics are used in the treatment of insomnia, acute convulsive conditions, and anxiety states and to facilitate the induction of anesthesia. Although sedative-hypnotics are generally sleep inducing, they may also interfere with rapid eye movement (REM) sleep that is associated with dreaming. It has also been noted that when administered to patients with fever some of these drugs may act paradoxically and cause excitement rather than relaxation.

Sedative hypnotics may interfere with temperature regulation, depress oxygen consumption in various tissues, and produce nausea and skin rashes. In elderly patients they may cause dizziness, confusion, and ataxia. Drugs in this group have a high potential for abuse that may cause physical and psychological dependence. Treatment of dependence involves gradual reduction of the dosage because abrupt withdrawal frequently causes serious disorders, including convulsions. Buspirone and zolpidem are among the newer non-barbiturate non-benzodiazepine sedative hypnotics.

     Zolpidem is a benzodiazepine receptor agonist with high binding affinity for the GABA receptor. It was developed as a drug with a structure different from the benzodiazepines in order to provide it with an affinity for only a subset of the benzodiazepine receptors resulting in hypnotic properties without significant anti-convulsant, anti-anxiety, or muscle relaxant properties associated with the various benzodiazepines. Therefore, Zolpidem may be said to “compete” with the benzo’s for the attention of only some of the same receptors.

     Zolpidem has been available in this country since 1993, and for several years has also been available in a time release formula. It is available in both a five milligram and ten milligram tablet. The manufacturer recommends that it only be taken when a person has eight hours available for uninterrupted sleep. The peak concentration of the drug usually appears in the bloodstream between one and a half to two and a half hours. Therapeutic levels are reported as 29 to 113 ng/ml following a 5 mg. dose and 58 to 272 ng/ml following a 10 mg. dose according to the package insert.

     By around 2005 reports of parasomnias began surfacing. These are undesirable motor, verbal, or experiential events that occur during sleep. One of the more common was uncontrolled sleep eating. Raw eggs, uncooked rice, loaves of bread - they were all fair game. Cooking - and we are not talking about dishes that are particularly appetizing - was also reported, as well as sleep walking and sleep driving.

     Initially the manufacturer, Sanofi-Aventis, took the position that four percent of the population already suffered from somnambulism, and that while “events of sleepwalking have occurred during treatment with Ambien, these instances cannot be systemically linked to the product.”

     Finally, in March of 2007 there were two important developments. First, the Food and Drug Administration demanded that the makers of thirteen sedative hypnotic drugs include warnings about possible unusual behavior including sleep driving and recommended that the manufacturers conduct clinical studies to investigate the frequency with which sleep driving and other parasomnias occur in association with each product. Second, the manufacturers notified health care providers (i.e, the doctors prescribing the stuff) that the precautions were being revised to warn patients about the possibility of sleep driving and that such “complex behaviors” had been reported. Sanofi Aventis conceded that these events could occur in sedative hypnotic naive as well as sedative hypnotic experienced persons. Ambien (Zolpidem) was not the only drug affected. The others included Butisol Sodium, Carbrital, Dalmane, Doral, Halcion, Lunesta, Placidyl, Prosom, Restoril, Rozerem, Seconal, and Sonata. While Ambien related sleep driving cases have been encountered by all DUI defense attorneys, cases involving the other drugs are rare. Nevertheless, these drugs are on the same list as Ambien, so if a defense is viable for Ambien, it should be viable for these other medications as well.

     The question remains why would someone who has taken Ambien get out of bed and eat unappetizing food, cook stranger things, drive their cars into telephone poles, and have no memory of the event? A possible explanation for zolpidem induced nocturnal behavior is that after a person is aroused from sleep, he or she will walk, drive, or eat, and subsequently not recall the event after returning to sleep because of the sedation-mediated amnesic properties of zolpidem. Another possibility is that an arousal occurred out of deep sleep with the parasomnia occurring in this electroencephalographically verifiable stage of sleep. The author believes that at least in some cases the latter has been experienced, because the drivers’ interaction with police and other individuals was extremely incoherent, their behavior was “zombie-like”, and they stared blankly at the police as if looking through them.
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

     Shortly after midnight an Oklahoma Highway Patrol officer stopped Roberts, who was reportedly driving a black 2006 Mercedes at 93 mph in a 65 mph zone on a highway west of U.S. 169, according to the arrest report.  After stopping Roberts, 63, the trooper noted that he smelled strongly of alcohol.  Roberts allegedly failed two coordination tests and his breath test result was .11.  Roberts was booked into the Tulsa jail and released a few hours later on $1,100 bail, officials told The Times.

     He resigned as president of Oral Roberts Universityin 2007 after he and his family were accused of abusing university and ministry assets.  Later he was named President Emeritus.  All ORU employees are required to sign a pledge to avoid consuming any alcoholic beverages.
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

     The 37-year-old right-hander was charged with DUI, reckless driving and improper lane change, according to the Georgia State Patrol.  Lowe declined to take a breath test before he was released, and the officer did not attempt to obtain a search warrant for a blood best, although he could have done so under state law.  The Atlanta Journal-Constitution has reported that Lowe was allegedly racing another vehicle when he was pulled over.

     The county purchased 128 of the devices, paying about $4,800 for each one. Drescher said he didn’t know how many people charged with DUI were tested with the Alco-Sensor V during that time. “I don’t have the actual numbers,” he said, adding that the office was still looking into the matter. “Obviously, we are trying to do what’s right in this situation.” He added the information on who used the eight defective devices should be easy to obtain since it is data entered into the machine. Drescher said law enforcement has stopped using all Alco-Sensor V devices.Assistant Sheriff Gary Pentis said Alco-Sensor V had a defective mouthpiece resulting in “irregular readings.” He said the defective machines will be fixed, tested and returned to the county in about three months. The department will use the older model, Alco-Sensor IV in the meantime. He said every law enforcement agency in the county uses the device.

     The District Attorney’s Office sent the memo to the Public Defender’s Office on April 15th, said Chief Deputy Public Defender Monica Cummins. She said about 160 clients who were either convicted of DUI during this time or have cases pending, will be contacted by the office. “Some cases are still open,” she said. Cummins said the defective machines had “no evidentiary value” that could be used in court, but could have resulted in people getting convicted or pleading guilty to drunk driving based on erroneous Breathalyzer tests results.Drescher said his office will check on a “case by case” basis where defective devices were used to determine the appropriate thing to do.

     Attorney Robert Sandbach said a client’s arraignment for drunk driving was postponed because he needs more information about the Alco-Sensor V. He and his client went to the Department of Motor Vehicles Tuesday to request a postponement on a hearing to suspend the client’s license. He said his client was “alarmed and shocked” after finding out the machine was unreliable and possibly inaccurate. Sandbach said he is aware of two other clients who were arrested for DUI and were tested by the Alco-Sensor V. 

     Sandbach said on top of the jail time, fines and fees, and getting a license suspended, there is another toll for the wrongly accused. “The embarrassment of going through the process only to find out that the evidence was not reliable,” said Sandbach.

     During a news conference in January, Ventura County Sheriff Geoff Dean said the use of the microphone-sized instrument would improve safety in the community, providing instant reading of a motorist’s blood-alcohol level. The devices were funded through a grant from the California Office of Traffic Safety through the National Highway Traffic Safety Administration. Officers were given about four hours of training on the devices before being sent out into the field.

     Attorney Mindy McQueen, who specializes in DUI cases, said Breathalyzer devices have never been infallible. She said the technology to make the devices faster, smaller and more economical has resulted in manufacturer design flaws.”These machines have never been infallible and that’s something that defense attorneys have tried to point out for years,” said McQueen, a member of the California DUI Attorneys Association.

     Pentis said the machines passed stringent testing before they were put to use. He said an officer in the field discovered the problem, reported it immediately, and the machines were pulled out and tested. Apparently temperature played a part in the false readings. Pentis said the only way the sheriff’s crime laboratory could duplicate the flaw in the Alco-Sensor V was to put it into a freezer. Pentis said the Alco-Sensor must be 100 percent accurate before it will be used by law enforcement. He did not explain why it was put into use when it was clearly not 100 percent accurate.

     Cummins said the Public Defender’s Office will move to have the convictions dismissed in cases where there may have been blood-alcohol errors. But some people who were found guilty or pleaded guilty as a result of these false readings have already served jail time, paid thousands of dollars in fines and have done community service as part of the conviction, Cummins noted. Also, harsher penalties are meted out to motorists who blow a .15 percent blood-alcohol level, said Cummins. In California, a blood-alcohol reading of .08 is considered the benchmark for being legally intoxicated.

The district attorney’s office has agreed that in cases where people were found guilty solely because of the test (sounds like only guilty pleas to us), they will get a new trial.  In cases where other evidence was obtained, such as witness testimony (any case that ever went to trial?) or a blood test, the defendants would not be affected by this development.  The problem could affect about 200 convictions.

As of this date we have not been able to determine the exact nature of the problem with Philadelphia’s breath testing device.  We will update this post if more details come to our attention. 
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

     Cabrera had not yet reported to Tigers spring training in Lakeland, Florida, and the arrest complicated matters because there were issues to work through with the office of the Commissioner of Major League Baseball and the players’ association.  He made one very smart move in the days that followed.  Instead of hiring a “celebrity” lawyer or one with a silk stocking civil background, he retained Michael Kessler, who is perhaps the finest DUI attorney in south Florida.  Kessler is well known nationally and highly regarded by other members of the National College for DUI Defense.  This baseball player chose a formidable DUI defense - not a quick guilty plea. 
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