Is Automatism or Involuntary Intoxication a Defense to DWI?

Since the start of the new year, I’ve been meaning to return to the court of appeals’ December 2011 opinion in State v. Clowers, __  N.C. App. __ , 720 S.E.2d 430 (2011), to explore the application of the defenses of automatism and involuntary intoxication to charges of impaired driving. Two months later, I’ve finally done it.

The Clowers court rejected the defendant’s argument that the trial court erred in failing to instruct the jury in his trial on impaired driving charges on the defense of automatism or unconsciousness, an instruction the defendant requested on the basis that he blacked out and had no memory of what happened on the night he allegedly drove while impaired. The defendant testified that it was not his habit to drink excessively.  He said that he went to a party in Raleigh around 10 p.m. on the evening before he was arrested and that he planned to stay overnight at the location of the party if he had more than a couple of drinks.  He testified that he did not remember anything after having a few drinks until “regaining consciousness” the next day while lying on a bench in a jail cell. The defendant argued that his unconsciousness could have resulted from the effects of voluntary consumption of alcohol combined with the effects of Alprazolam, a drug that he had been prescribed to control his panic attacks.

The Clowers court acknowledged that unconsciousness or automatism (a defense that Jeff discussed in this earlier post) is a complete defense to any criminal charge, regardless of the mental state required for commission of the offense, because “‘[t]he absence of consciousness not only precludes the existence of any specific mental state, but also excludes the possibility of a voluntary act without which there can be no criminal liability.’” 720 S.E.2d at  436 (quoting State v. Williams, 296 N.C. 693, 698-99 (1979)). Clowers went on to explain, however, that the unconsciousness defense does not apply to a case in which the person’s unconsciousness results from “‘voluntary intoxication . . . from the use of drugs or intoxicating liquor.’” Id. Rather, the defense applies “‘only to cases of the unconsciousness of persons of sound mind as, for example, somnambulists or persons suffering from the delirium of fever, epilepsy, a blow on the head or the involuntary taking of drugs or intoxicating liquor, and other cases in which there is no functioning of the conscious mind and the person’s acts are controlled solely by the subconscious mind.’” Id.

The Clowers court found no evidence demonstrating that the defendant’s consumption of alcohol, which resulted in an alcohol concentration of 0.25, was involuntary.  Furthermore, the court noted that despite the possible side effect of Alprazolam, the defendant testified that his ingestion of the anxiety drug also was voluntary. Therefore, the court concluded that the evidence did not support the delivery of an instruction to the jury on the defense of automatism.

Clowers’ holding aligns with the court’s determination several years ago in State v. Highsmith, 173 N.C. App. 600, 607 (2005), that the defendant was not entitled to an instruction on involuntary intoxication in his trial on impaired driving charges that arose from his driving after consuming prescription medication.  The Highsmith court explained that the voluntary consumption of prescription medication did not support such an instruction despite the defendant’s claims that he did not know the substance was intoxicating.

Read in isolation, these broad statements from Clowers and Highsmith might lead one to conclude that so long as the impairing substance was voluntarily consumed (that is, the person was not forced to consume it) the defenses automatism and involuntary intoxication are unavailable to a defendant charged with impaired driving. Such a conclusion strikes me as entirely warranted when applied to intoxication resulting from the voluntary ingestion of alcohol. See State v. Rose, 312 N.C. 441, 445 (1984) (rejecting argument that statutory provisions defining  impaired driving based on a specified alcohol concentration are void for vagueness, opining that while people may not know when their blood alcohol concentration reaches the per se level, they do “know the line exists” and “that drinking enough alcohol before or during driving may cause them to cross it”); see also Com. v. Taylor, 161 N.E. 245, 247 (Mass. 1928) (citing favorably a jury instruction noting that “‘the effects of liquor upon the mind and actions of men are well known to everybody’”). I’m not certain, however, that the court’s determinations foreclose altogether those defenses in cases when the person’s impairment results from consumption of a substance other than alcohol. The Highsmith court, in addition to considering the defendant’s arguments related to involuntary intoxication, analyzed the sufficiency of the State’s evidence.  And though the court ultimately rejected the defendant’s argument that the evidence was insufficient to establish that he knowingly consumed an impairing substance, it did so on the basis that the defendant “knew or should have known” that the prescription medication he consumed, Floricet, could impair him, “and was thus on notice that, by driving after taking Floricet, he risked cross[ing] over the line into the territory of proscribed conduct.” 173 N.C. App. at 605 (internal quotations omitted).  Thus, Highsmith left open the possibility that a defendant might be legally excused from his conduct where he had no knowledge or reason to know that a substance might so impair him. Courts in other states have treated such claims similarly. See State v. Kain, 24 S.W.3d 816, 819 (Tenn. Crim. App. 2000) (stating that driving under the influence of a drug or intoxicant is a strict liability offense and that a defendant whose intoxication results from knowingly ingesting a prescription drug and alcohol cannot avail himself of the involuntary intoxication defense; finding it unnecessary under facts of case to determine whether a defense of involuntary intoxication can be used against a charge of driving while impaired); Nelson v. State, 149 S.W.3d 206, 210-12 (Tex. App. 2004) (concluding that defense of involuntary intoxication does not apply when, as is the case for impaired driving, the defendant’s mental state is not an element of the alleged offense, but further noting that appellant had been prescribed the medications previously and that the day of the incident was not the first time that appellant volitionally took the same doses of the drugs together at one time); Aliff v. State, 955 S.W.2d 891, 893 (Tex. App. 1997) (holding defendant was not entitled to involuntary intoxication instruction at trial for felony driving while intoxicated, as nothing indicated that defendant took the intoxicating drugs unknowingly or without knowledge of their effect and because involuntary intoxication was defense to criminal culpability and proof of culpable mental state was not required for DWI conviction).

This type of legal excuse might be available in circumstances in which the impairment was caused by an innocent mistake on the part of the defendant (for example, if the defendant took an impairing substance in reasonable belief that it was a benign one) or where unexpected impairment results from a medically prescribed drug.  See Com. v. Smith, 831 A.2d 636, 639-41 (Pa. Super. Ct. 2003) (setting out four situations in which involuntary intoxication has been recognized, but finding no evidence to support the defendant’s claim that she was not criminally culpable for driving under the influence because she was unaware that the prescription patch she was wearing would heighten the effects of the alcohol she voluntarily ingested), see also Com. v. Wallace, 439 N.E.2d 848, 850 (Mass. App. 1982) (stating that “it cannot seriously be contended that the legislature made it a crime to be forced at gunpoint to take drugs and drive or to drive after having unknowingly been slipped a drug within the statutory definition.”). On the other hand, it might not.  See State v. Borelli, 2004 WL 1615944 (Conn. Super. Ct.  June 24, 2004) (unpublished op.) (finding that defendant had requisite general intent for commission of impaired driving offense even though she may not have known that allergy medication she voluntarily ingested would cause her to become disoriented).