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Solomon v. State (3/26/2010) ap-2256

Solomon v. State (3/26/2010) ap-2256

                             NOTICE
     The  text  of this opinion can be corrected before  the
     opinion  is published in the Pacific Reporter.  Readers
     are  encouraged to bring typographical or other  formal
     errors  to  the attention of the Clerk of the Appellate
     Courts:

             303 K Street, Anchorage, Alaska  99501
                      Fax:  (907) 264-0878
       E-mail:  corrections@appellate.courts.state.ak.us


         IN THE COURT OF APPEALS OF THE STATE OF ALASKA


CLARENCE SOLOMON,                  
                                   
                    Appellant,       Court of Appeals No. A-10364
                                    Trial Court No. 4FA-07-4372 Cr
               v.                  
                                   
STATE OF ALASKA,                         O  P  I  N  I  O  N
                                   
                    Appellee.      
End of Caption                        No. 2256    March 26, 2010
                                   
          Appeal  from the District Court, Fourth  Judi
          cial  District,  Fairbanks, Jane  F.  Kauvar,
          Judge.

          Appearances:    Brian  T.  Duffy,   Assistant
          Public  Advocate, Appeals & Statewide Defense
          Section,  and Rachel Levitt, Public Advocate,
          Anchorage,   for   the   Appellant.    Joseph
          Dallaire,    Assistant   District   Attorney,
          Fairbanks,  and Daniel S. Sullivan,  Attorney
          General, Juneau, for the Appellee.

          Before:   Coats, Chief Judge, and  Mannheimer
          and Bolger, Judges.

          MANNHEIMER, Judge.

          Clarence  Solomon  appeals his conviction  for  driving
under   the   influence,  
AS 28.35.030(a). At his trial, Solomon introduced evidence that his intoxication stemmed from his ingestion of approximately one quart of NyQuil cold medicine. Solomon further claimed that he did not read the label on the NyQuil bottles (which stated that NyQuil contained 10 percent alcohol), and that he remained unaware that NyQuil contained alcohol or that NyQuil might otherwise be an intoxicant.
Based on this evidence, Solomon asked the trial judge to instruct the jury that he should be acquitted of the DUI charge unless the State proved that he knowingly ingested an intoxicant that is, unless the State proved that Solomon had actual knowledge that NyQuil was an intoxicant. Solomon also asked the trial judge to instruct the jury on the defense of involuntary intoxication, but this request was simply a reformulation of Solomons underlying assertion that the State was obliged to prove that he had actual knowledge that NyQuil was an intoxicant. The trial judge rejected both of these requests, and Solomon now claims that this was error.
As we explain more fully in this opinion, we conclude that the trial judge correctly denied Solomons requests for these jury instructions. We agree with Solomon that a defendant who is charged with DUI is entitled to raise a defense that their ingestion of alcoholic beverages or other intoxicants was unwitting and that, if the issue is raised and there is evidence to support this defense, then it becomes the States burden to disprove the defense beyond a reasonable doubt.
However, for the defendant to prevail on this defense of unwitting intoxication, the evidence (viewed in the light most favorable to the proposed defense) must establish at least a reasonable possibility that the defendant did not act negligently regarding the circumstance that the beverage or substance they ingested was an intoxicant.
When this issue was litigated at Solomons trial, Solomon did not dispute that the label on NyQuil bottles prominently declared that the medicine contained 10 percent alcohol. Solomon simply claimed that he did not read this label on either of the two bottles he drank from, and that he was otherwise unaware that NyQuil was an intoxicant. Given this record, even when the evidence is viewed in the light most favorable to Solomons claim that he was unaware of the intoxicating effect of NyQuil, there was no reasonable possibility that Solomon acted non-negligently regarding this circumstance. Thus, the trial judge was not required to instruct the jury on the defense of unwitting intoxication.
Underlying facts
     
               In  the  early morning hours of December  30,
     2007,   Fairbanks  Police  Officer  John  Merrion   was
     dispatched to investigate a report of a possible  drunk
     driver.  The report was made by a taxi driver, who told
     the  police dispatcher that he had observed  a  vehicle
     being  driven  erratically, and that when he  contacted
     the driver (Clarence Solomon), the driver admitted that
     he was intoxicated.
               The   axle   on  Solomons  truck   was   bent
     (apparently, because Solomon had run the vehicle into a
     ditch),  so Solomon asked the taxi driver for  a  ride.
     The taxi driver refused to give Solomon a ride, but  he
     agreed  to  follow Solomon as he drove the truck  to  a
     nearby gas station.  Officer Merrion arrived at the gas
     station  a  few  minutes after  Solomon  and  the  taxi
     driver.
               When  Merrion contacted Solomon, he  observed
     that Solomons eyes were red and watery, that his speech
     was  slurred, and that he swayed back and forth  as  he
     stood.   Solomon denied consuming alcoholic  beverages,
     but  he  admitted that he was high on  Vicodin.   After
     Solomon  performed  poorly on  several  field  sobriety
     tests, Merrion arrested Solomon and transported him  to
     the police station.  At the station, Solomon agreed  to
     a  breath  test.  This breath test, which was conducted
     at about 4:45 in the morning, showed that Solomon had a
     blood  alcohol  level of .169 percent (over  twice  the
     legal  limit).   Based  on these  events,  Solomon  was
     charged with driving under the influence.
          At  trial, Solomon testified that he had  not
consumed  any  alcoholic  beverages  on  the  night  in
question, but that he had drunk one and a half 20-ounce
bottles of NyQuil (approximately 30 ounces, or a little
less  than one quart) to treat his flu over the  course
of  the  late  afternoon and evening.  Solomon  further
testified that he did not read the labels on the NyQuil
bottles,  and that he was unaware that NyQuil contained
alcohol   or   that  NyQuil  might  otherwise   be   an
intoxicant.
          The  State sought to rebut this testimony  in
two  ways.   First,  in response to Solomons  assertion
that he did not know that NyQuil was an intoxicant, the
State presented evidence that the label on the front of
NyQuil  bottles  declares  that  NyQuil  contains   ten
percent  alcohol.  Second, the State presented evidence
that  even  if  Solomon had consumed the 30  ounces  of
NyQuil  over the course of the evening (as he claimed),
this  amount  of  NyQuil contained  so  little  alcohol
(3  ounces of pure alcohol, the equivalent of six shots
of 100 proof liquor) that it could not possibly explain
Solomons  test result of .169 percent blood alcohol  at
4:45  a.m.  the following morning.  In particular,  the
State  presented expert testimony that if  Solomon  had
consumed  the  amount  of NyQuil  he  claimed  to  have
consumed,  during the time period he  claimed  to  have
consumed it, his blood alcohol content at the  time  of
his breath test would have been zero, not .169 percent.
          Based  on  Solomons testimony about  drinking
the  NyQuil, and about not reading the label,  Solomons
attorney  asked the trial judge  District  Court  Judge
Jane F. Kauvar  to instruct the jury on the affirmative
defense of involuntary intoxication, and/or to instruct
the jury that Solomon could not be convicted of driving
under  the influence unless the State proved  beyond  a
reasonable    doubt   that   he   knowingly    ingested
intoxicants.  Both of these requests were  premised  on
the  same  underlying  legal assertion:   that  Solomon
could  not  be convicted of driving under the influence
unless the State proved that Solomon subjectively  knew
that  drinking  the  NyQuil might  make  him  impaired.
Indeed,  the defense attorney at one point  told  Judge
Kauvar  that Solomons underlying contention could  best
be  described  as  a  claim of  unknowing  self-induced
intoxication.
          Judge  Kauvar  ruled  that  Solomon  was  not
entitled to a jury instruction on this defense (whether
it   was  described  as  an  assertion  of  involuntary
intoxication  or as an assertion that Solomon  had  not
knowingly  ingested an intoxicant).   The  judge  ruled
that, because the NyQuil label clearly stated that  the
medicine contained alcohol, Solomon was on constructive
notice  that he was consuming an intoxicant  regardless
of whether he read the label.
          The  jury convicted Solomon of driving  under
the influence, and Solomon now appeals that conviction.

Why  we conclude that Alaska law offers the defense  of
unwitting intoxication, but that this defense  requires
proof that the defendant acted non-negligently

          Solomon  argues that defendants charged  with
driving  under the influence must be allowed to  defend
by  asserting  that their intoxication  was  unwitting.
Solomon  further  argues that,  once  this  defense  is
raised,  the  State  must prove  (beyond  a  reasonable
doubt) that the defendant actually knew  as opposed  to
constructively  knew   that the beverage  or  substance
they  ingested was an intoxicant.  This,  according  to
Solomon, is the substantive error that occurred in  his
case:  the fact that the trial judge relied on a theory
of   constructive  knowledge  when  she  rejected   his
proposed defense.
          Translating the phrase constructive knowledge
into  plain English, the trial judges ruling was  based
on  the  premise that, even if Solomon was subjectively
unaware   that   NyQuil  was  an  intoxicant,   Solomon
nevertheless should have known (based on the wording of
the  NyQuil  label) that NyQuil was an intoxicant.   In
essence,  the  trial  judge held that  the  defense  of
unwitting intoxication was not available to a defendant
who  acted negligently with respect to the circumstance
that  the  beverage or substance they ingested  was  an
intoxicant.
          Solomon argues that it is not enough for  the
State to prove that a defendant acted negligently   not
enough for the State to prove that the defendant should
have known that the beverage or substance they ingested
was an intoxicant.  Instead, Solomon takes the position
that actual knowledge is required  in other words, that
the State should have to prove that the defendant acted
knowingly  with  respect to the circumstance  that  the
beverage or substance was an intoxicant.
          This is an unresolved issue under Alaska law,
and  it  is  made more difficult by the fact  that  our
previous  decisions  on a related  issue   whether  the
State  must  prove that DUI defendants were aware  that
they  were  under the influence  contain language  that
provides support for both Solomons view of the law  and
the trial judges opposing view.
          In   Morgan  v.  Anchorage1  and   State   v.
Simpson,2 this Court addressed the issue of whether, in
a  prosecution  for  driving under the  influence,  the
government  was  required to prove that  the  defendant
acted  with  a  culpable  mental  state  regarding  the
circumstance  that  they were under  the  influence  of
intoxicants, or that their blood alcohol level exceeded
the statutory maximum.
          In   Morgan,   we  held  that  no  additional
culpable mental state was required, once the government
proved    that   the   defendant   knowingly   ingested
intoxicants and knowingly operated or assumed  physical
control  of a motor vehicle.3  This wording appears  to
          support Solomons view that, when a DUI defendant
asserts  that  they were ignorant of  the  intoxicating
nature  of  a beverage, the State must prove  that  the
defendant acted with actual knowledge that the beverage
was an intoxicant.
          However,  the issue presented in  Morgan  and
Simpson  was  whether the government  was  required  to
prove  that the defendant acted with a culpable  mental
state   regarding  the  circumstance  that  they   were
impaired.  The defendants in Morgan and Simpson did not
dispute  the fact that they knowingly drank or ingested
intoxicants,  so  those cases did not directly  present
the  issue  of  what  culpable mental  state  might  be
required with respect to the defendants awareness  that
they were drinking or ingesting an intoxicant.
          Indeed,  we  noted in Simpson that [c]riminal
law  texts on this subject ... suggest that we may have
gone  too  far  in Morgan when we suggested  that  [the
offense  of  driving  under the  influence]  invariably
requires  proof  that the defendant knowingly  ingested
alcohol or other intoxicants.4  For instance, in Rollin
M. Perkins & Ronald N. Boyce, Criminal Law (3rd edition
1982), the authors discuss the relationship between the
defense  of involuntary intoxication and the  crime  of
driving  under  the  influence.  In  their  discussion,
Professors Perkins and Boyce point out that even when a
defendant  becomes intoxicated through the trickery  of
others, or as a result of a completely innocent mistake
concerning  the nature of a beverage or substance,  the
defendant can still properly be convicted of DUI if the
government proves that the defendant realized that they
were impaired but still drove or continued to drive.5
          A  few  years  after this  Court  issued  our
decision in Simpson, we were again confronted with  the
argument  that, as a matter of due process,  the  State
must  be required to prove a culpable mental state with
respect  to  a defendants awareness of the circumstance
that  they  were impaired or that their  blood  alcohol
content  was  .08 percent or higher.  The defendant  in
Valentine  v. State, 155 P.3d 331 (Alaska App.  2007),6
argued  that, under the due process clause,  the  State
was  required to prove that a defendant acted at  least
negligently with respect to this circumstance.
          The  defendant  in Valentine  relied  on  the
Alaska Supreme Courts decision State v. Hazelwood,  946
P.2d  875  (Alaska  1997).  In Hazelwood,  the  supreme
court  declared that when a criminal statute proscribes
conduct only when a particular circumstance is present,
a conviction under that statute must be predicated on a
finding that the defendant was at least negligent  with
respect to that circumstance.  Id. at 879.
          In our decision in Valentine, we acknowledged
that  Hazelwood accurately described Alaska law on this
issue.  For instance, our supreme court has held that a
defendant cannot be convicted of transporting illegally
          taken game unless the defendant was at least negligent
with  respect  to the fact that the game was  illegally
taken   because  if  the game was not illegally  taken,
transporting it would not be a crime.7
          However,   we   concluded   that   proof   of
negligence  is  normally  an implicit  element  of  the
governments   case  in  a  DUI  prosecution    because,
typically,  the  government  will  prove  that  a   DUI
defendant knowingly ingested an intoxicating substance:
     
Valentine argues ... that a person cannot  be
convicted   of   driving  while   under   the
influence  unless  the person  was  at  least
negligent with respect to the circumstance of
being  legally intoxicated  because  drinking
and  driving  is otherwise not  sanctionable.
This  claim  fails [because] proof  that  the
defendant  was legally intoxicated  and  that
the  defendant knowingly consumed alcohol and
drove  is  sufficient to establish  that  the
defendant was negligent with respect  to  the
circumstance  that  he was  too  impaired  to
legally    drive.    We   therefore    reject
Valentines  claim  that  the  [DUI]  law   is
unconstitutional because it imposes  criminal
liability without proof of mens rea.

Valentine, 155 P.3d at 343.
          This    passage   from    Valentine
arguably supports the trial judges ruling  in
the  present  case:  the ruling that  Solomon
was  not entitled to litigate the defense  of
unwitting intoxication because Solomon was at
least  negligent  regarding the  circumstance
that NyQuil was an intoxicant.
          To   sum  up  this  discussion   of
Morgan,   Simpson,  and  Valentine:   Solomon
argues that the government must prove that  a
DUI    defendant   knowingly   ingested    an
intoxicant,   while  the  State   takes   the
position   that   proof  of  the   defendants
negligence is sufficient.  Our prior case law
provides   no  definitive  answer   to   this
question.  Indeed, the inferences that  might
be  drawn  from our prior decisions seemingly
lead to different conclusions.
          Because our prior decisions do  not
provide a clear answer to the issue raised in
Solomons case, we have examined the decisions
reached  by courts in other states  when  DUI
defendants  asserted  that  they  unwittingly
drank or ingested an intoxicant.
          Our   research  reveals  that  many
states  recognize  a  potential  defense   of
unwitting  intoxication in DUI  prosecutions.
          However, the defense is not as broad as the
one    proposed   by   Solomon.    In   these
jurisdictions,   the  government   need   not
invariably  prove  that the  defendant  acted
knowingly  with  respect to the  intoxicating
nature  of  the beverage or substance   i.e.,
that the defendant was subjectively aware  of
this  fact.   Rather,  a  DUI  conviction  is
proper  if the government can establish  that
the defendant acted at least negligently with
respect  to  the  fact that the  beverage  or
substance was an intoxicant.  In other words,
the  government must prove that the defendant
either  knew  or should have  known  of  this
fact.
          Before  we  discuss the cases  from
other  jurisdictions, we need to discuss  the
Model  Penal  Code definition of self-induced
intoxication  because the  cases  from  other
states often discuss this definition in their
analyses.
          Model Penal Code  2.08 defines  the
circumstances in which intoxication  does  or
does   not   relieve  a  person  of  criminal
responsibility.     Subsection     2.08(5)(b)
defines    the    concept   of   self-induced
intoxication  (the close equivalent  of  what
has   traditionally  been  referred   to   as
voluntary intoxication).
          As  defined  in  Model  Penal  Code
2.08(5)(b),  self-induced intoxication  means
intoxication  caused by substances  that  the
actor knowingly introduces into his body, the
tendency  of  which to cause intoxication  he
knows  or ought to know, unless he introduces
them  [into  his  body] pursuant  to  medical
advice  or under such circumstances as  would
afford a defense to a charge of crime[.]
          For  purposes of Solomons case  and
the defense of unwitting intoxication that he
proposes,  the relevant portion of the  Model
Penal  Code definition is found in its  first
two  clauses.   Under the Model  Penal  Code,
intoxication  would not be  a  defense  to  a
charge of driving under the influence if  (1)
the   defendant   knowingly  introduced   the
intoxicating substance into their  body,  and
(2) the defendant knew or ought to have known
of  the tendency of [this substance] to cause
intoxication.   In  other  words,  under  the
Model  Penal  Code, DUI defendants  would  be
held   culpable  if  they  acted  negligently
regarding the circumstance that the substance
was an intoxicant.
          In  Commonwealth v. Smith, 831 A.2d
636  (Pa. App. 2003), the court relied on the
Model  Penal  Code definition of self-induced
intoxication  in  a  case  that  raised   the
question  of whether involuntary intoxication
(which,   under   the   courts   formulation,
included  unwitting intoxication)  should  be
recognized as a defense to a prosecution  for
driving  under  the  influence.   The   court
declared   that  a  key  component   [of   an
involuntary intoxication defense] is lack  of
culpability  on the part of the defendant  in
causing the intoxication.  Id. at 639.
          In  Smith,  the  defendant  claimed
that   she  unexpectedly  became  intoxicated
after she took a prescribed medicine and then
voluntar[ily]  ingest[ed]  ...  an  allegedly
moderate  amount of alcohol.  Id.  The  court
noted that, even under the defendants version
of  events, her intoxication was self-induced
as  defined  in  the Model Penal  Code.   The
court  then  held that the Model  Penal  Code
formulation  was consistent with Pennsylvania
law  and that, as a result, the defendant had
no  valid defense to the DUI charge.  Id.  at
639-640.  In particular, the court noted that
the  evidence, even viewed in the light  most
favorable to the defendant, established  that
[the  defendant] drank alcohol without regard
to  the effects of its combination with [the]
medication  she  was  taking.   ...   [T]hese
facts   ...   cannot  establish   involuntary
intoxication.  Id. at 640.
          The   California  Court  of  Appeal
applied  a  similar  analysis  in  People  v.
Chaffey, 30 Cal.Rptr.2d 757 (Cal. App. 1994).
The defendant in Chaffey took an overdose  of
a prescription drug (120 tablets of Xanax) in
an attempt to commit suicide, and then (in an
unconscious  state) began  driving  her  car.
Id.   at   757.   Citing  Model  Penal   Code
2.08(5)(b),  the  appeals  court  upheld  the
defendants conviction for driving  under  the
influence.  The court reasoned that the trier
of fact at Chaffeys trial could conclude that
the  intoxicating  effect  of  the  drug  was
reasonably foreseeable, given the amount that
the defendant voluntarily ingested, and given
the fact that the Xanax label warned that the
medication  would cause drowsiness.   Id.  at
759-760.  The court concluded:

     This  case is not so different  than  if
Chaffey  had  consumed  alcohol  instead   of
Xanax.  It is true[,] as Chaffey points out[,
that] sleepiness behind the wheel as a result
of ingestion of alcohol is a matter of common
knowledge, well within the experience of  the
average person.  Although Xanax may not be as
well  known  as  alcohol, it  was  reasonably
foreseeable  ... that [the drug would  place]
Chaffey ... in a state of intoxication.

Chaffey,  30  Cal.Rptr.2d at 760.   In  other
words,  the  California court concluded  that
the trier of fact could reasonably have found
that   Chaffey  acted  at  least  negligently
regarding   the   circumstance    that    the
prescription   medicine   would   make    her
intoxicated.  Id.
          In  Commonwealth  v.  Wallace,  439
N.E.2d  848 (Mass. App. 1982), the  defendant
took       a      prescription      medicine,
chlordiazepoxide    (popularly    known    as
Librium), and then drove a motor vehicle  and
was  involved in an accident.  He was charged
with  operating a motor vehicle  while  under
the  influence  of drugs.  Id.  at  849.   At
trial,  the  judge  precluded  Wallace   from
offering evidence that he had no knowledge of
the  effects of the medication, and  that  he
had  not  received warnings about  using  the
drug before driving.  Id.
          The   Massachusetts  appeals  court
held  that the law should recognize a defense
of  unwitting intoxication, so that perfectly
innocent   and  well-intentioned[,]   careful
persons  would not be subjected  to  criminal
penalties under circumstances which ... would
not  subject [them] to liability for  damages
in   a   civil  proceeding.   Id.   at   851.
Accordingly, the court concluded that it  was
error for the trial judge to preclude Wallace
from  introducing evidence  that  he  had  no
advance   knowledge  or  warning   that   the
medicine  was an intoxicant.  Id. at  852-53.
But then the Massachusetts court added:

     We do not imply that a jury could not in
some  instances  find that  a  defendant  had
information sufficient to place on him a duty
of inquiring of his doctor as to the possible
effects  of  a  prescription drug.   In  such
circumstances,  a  conviction  [for   driving
under the influence] would be proper if it is
found that the defendant was negligent in not
asking,  and  hence  not  knowing,  of   such
possible effects on his driving.

Wallace,  439 N.E.2d at 853 n. 15.  In  other
words, the Massachusetts court restricted the
defense   of   unwitting   intoxication    to
defendants who acted reasonably  that is, non-
negligently   with regard to the circumstance
that  the  substance  they  ingested  was  an
intoxicant.
          We    are   persuaded   by    these
decisions,  and by the approach advocated  in
the  Model Penal Code, that Alaska law should
recognize     a    defense    of    unwitting
intoxication.   However,  this   defense   is
available  only  to  defendants  who  make  a
reasonable, non-negligent mistake  concerning
the  intoxicating nature of the  beverage  or
substance that they ingested.  The defense is
not  available if the defendant knew or ought
to  have known that the beverage or substance
was an intoxicant.
          We  acknowledge  that,  because  we
adopt a negligence standard, defendants  will
sometimes  be convicted of driving under  the
influence  even though they had no subjective
awareness  of the risk that the  beverage  or
substance they ingested was an intoxicant  in
other  words, they acted negligently but  not
recklessly  as defined in AS 11.81.900(a)(3).
Solomon  argues that imposition  of  criminal
liability  without proof that  the  defendant
had   at   least  some  level  of  subjective
awareness   of   wrongdoing   violates    the
guarantee  of due process of law.   But  this
argument was rejected by our supreme court in
State v. Hazelwood:

     [C]riminal    convictions    must     be
predicated  on  criminal  intent.   In  other
words,  there  must be some level  of  mental
culpability  on  the part of  the  defendant.
However,  this principle does not preclude  a
civil negligence standard.  What it does mean
is  that  we  will  generally  read  into   a
criminal statute some level of mens  rea,  as
opposed to strict criminal liability.  It  is
strict  liability,  and  not  the  negligence
standard, which is an exception to  the  rule
which   requires   criminal   intent.     The
requirement  of  criminal  intent  does   not
emphasize    a    specific    awareness    of
wrongfulness.

     Th[is] point is illustrated by State  v.
Guest, 583 P.2d 836 (Alaska 1978), and [State
v.]  Rice, 626 P.2d [104 (Alaska 1981)].   In
each  case,  we  upheld  the  imposition   of
criminal  sanctions on the basis  of  simple,
ordinary negligence.  Guest approved [a jury]
instruction that the defendant was not guilty
of  statutory rape if he reasonably  believed
his victim was of consenting age.  In effect,
we  sustained prosecution on charges that the
defendant  was  negligent as to  the  victims
age.   Similarly, Rice read into  a  criminal
prohibition  on transportation  of  illegally
taken  game a requirement that the  defendant
was  at  least negligent as to the  fact  the
game  was illegally taken.  In both cases,  a
mens rea of simple or ordinary negligence was
made the basis of the offense.
     .  .  .

     Outside  of [offenses that can  lawfully
be  grounded on] strict liability ...  ,  [a]
showing  of simple civil negligence  is  both
necessary   and   sufficient  under   Alaskas
Constitution.  Negligence, rather than  gross
negligence,  is  the  minimum[.]  ...   [T]he
negligence   standard   is   constitutionally
permissible because it approximates what  the
due  process guarantee aims at:  an assurance
that  criminal penalties will be imposed only
when   the  conduct  at  issue  is  something
society can reasonably expect to deter.

Hazelwood,   946  P.2d  at   878-79   &   884
(citations, footnotes, and internal quotation
marks omitted).
          Based   on   the   supreme   courts
decision  of  this  point  in  Hazelwood,  we
conclude  that the knew or should have  known
formulation we adopt today is constitutional.
          In  addition,  as we  discussed  in
Simpson  v. State,8 the defense of  unwitting
intoxication  is not available to  defendants
who  initially become intoxicated unwittingly
but who then realize their impairment and yet
continue to drive.
          To   summarize:   If,  in   a   DUI
prosecution,  there  is  evidence  that   the
defendant   unwittingly  became   intoxicated
because   of   a   reasonable,  non-negligent
mistake about the intoxicating nature of  the
beverage or substance they ingested, then the
defendant  is entitled to a jury  instruction
on   this   defense,  and  it   becomes   the
governments  burden to disprove this  defense
beyond  a reasonable doubt  either by proving
that    the   defendant   acted   at    least
negligently, or by proving that the defendant
came   to   realize  their   impairment   but
continued  to  drive.  See the definition  of
defense codified in AS 11.81.900(b)(19).9

Application of this law to the facts of Solomons case

     As   we  explained  early  in  this  opinion,
Solomon introduced evidence at his trial (1)  that
his  intoxication  stemmed from his  ingestion  of
approximately  one  quart of NyQuilcold  medicine;
(2)  that he did not read the label on the  NyQuil
bottles  (which would have warned him that  NyQuil
contained  10 percent alcohol); and  (3)  that  he
remained   subjectively   unaware   that    NyQuil
contained  alcohol or that NyQuil might  otherwise
be an intoxicant.
          Solomon   would  be  entitled   to   a   jury
instruction  on  the defense of unwitting  intoxication
only   if  the  evidence  (viewed  in  the  light  most
favorable  to  the proposed defense)  would  have  been
sufficient to support the conclusion that Solomon acted
non-negligently  with respect to the circumstance  that
NyQuil was an intoxicant.  Here, it was undisputed that
the label on the NyQuil bottles plainly stated that the
medicine  contained 10 percent alcohol.  Solomon  might
not  have read this label before he drank the quart  of
NyQuil,  but  no  reasonable jury could  conclude  that
Solomons  failure to read the label was reasonable  and
non-negligent.
          Accordingly,  under  the  facts  of  Solomons
case,  he  was  not  entitled  to  argue  a  theory  of
unwitting intoxication to the jury, and the trial judge
did not commit error when she refused Solomons requests
for jury instructions on this defense.

Conclusion

          The  judgement  of  the  district  court   is
AFFIRMED.

_______________________________
1 643 P.2d 691 (Alaska App. 1982).

2 53 P.3d 165 (Alaska App. 2002).

3  Simpson, 53 P.3d at 167, interpreting Morgan, 643 P.2d at
692.

4 53 P.3d at 167.

5 Simpson, 53 P.3d at 167-68, discussing and quoting Perkins &
Boyce, p. 999.

6  Reversed on a different issue in Valentine v. State,  215
P.3d 319 (Alaska 2009).

7 Valentine, 155 P.3d at 343, citing Hazelwoods discussion of
State v. Rice, 626 P.2d 104, 108 (Alaska 1981).

8Simpson, 53 P.3d at 167-68, discussing and quoting Perkins &
Boyce, p. 999.

9AS 11.81.900(b)(19) declares that, for defenses other than
affirmative  defenses (i.e., other than defenses  where
the   defendant  bears  the  burden  of   proof),   the
government  has the burden of disproving the  existence
of  the  defense  beyond  a reasonable  doubt  if  some
evidence  [is]  admitted  which  places  in  issue  the
defense.

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