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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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