Unconsciousness as a DUI Defense?

Could a person argue as a defense against a DUI charge that they were unconscious due to intoxication? Sure, this is a free country and a person can argue anything they want. The real question is: “will a judge let you make that argument in a jury trial?” As always, the answer is that it depends. Unconsciousness due to intoxication is an argument that I’ve made in a trial. Tough to win but not impossible. Here’s the story:

Years ago I handled a DUI jury trial where the defense was that my client was under the influence of Ambien resulting in a state of unconsciousness or semi-consciousness. While in this state of unconsciousness or semi-consciousness it was feasible that my client ingested alcohol as a sleep-related behavior, which then potentiated the effects of the Ambien and resulted in a sleep-driving behavior.

Prior to trial I moved to instruct the jury on unconsciousness (CALCRIM 3425) and involuntary intoxication (CALCRIM 3472) on the grounds that it was consistent with my theory of defense and that the instructions would be supported by substantial evidence. “Unconsciousness, if not induced by voluntary intoxication, is a complete defense to a criminal charge. [Citations.] To constitute a defense, unconsciousness need not rise to the level of coma or inability to walk or perform manual movements; it can exist ‘where the subject physically acts but is not, at the time, conscious of acting.’ [Citation.]” (People v.Halvorsen (2007) 42 Cal.4th 379, 417; see Pen. Code, § 26, [“[p]ersons who committed the act charged without being conscious thereof” are not criminally responsible for that act].) (People v. Mathson, (2012) 210 Cal. App. 4th 1297, 1312.)

Involuntary intoxication that results in unconsciousness is also a complete defense to a crime. (People v. Velez, (1985) 175 Cal.App.3d 785, 793.) Involuntary intoxication can be caused by the voluntary ingestion of prescription medication if the person did not know or have reason to anticipate the drug's intoxicating effects. (People v. Chaffey (1994) 25 Cal.App.4th 852, 856–858.) The question of whether intoxication is voluntary or involuntary focuses on whether the intoxication is induced through the defendant's fault or the fault of another or whether the defendant knows or has reason to anticipate the intoxicating effects of the substance he or she ingests. If intoxication is the result of the defendant's own fault or the defendant knows or has reason to anticipate the intoxicating effects, the intoxication is voluntary. (Velez, supra, 175 Cal.App.3d at p. 796; Chaffey, supra, 25 Cal.App.4th at 856–858.) (Mathson, supra, 210 Cal. App. 4th at 1313.)

So I was able to persuade the trial judge to instruct on unconsciousness and let me argue it to the jury. That’s a win in my book. As for the trial outcome, the members of the jury were um… respectfully disinclined to find my client not guilty. A swift verdict. Still, it was an intriguing case involving an even more intriguing client and had the facts been a little different I think I would have won the trial. Indeed, if the facts in all of my trials were a little different then I would always win.

Here’s a Larry Biggam quote about tough cases: “You don’t build ‘em, you just fly ‘em!”