Monthly Archives: April 2005

The Spiked Punchbowl: Involuntary Intoxication

What if an individual drinks from a punch bowl at a party — not knowing that the punch has been secretly “spiked” by a prankster — and is later pulled over for DUI?  What if another person takes a medication prescribed by his doctor — without being told that it will cause impairment — and is subsequently arrested for driving under the influence of drugs?

Are these people guilty of DUI — or can they assert the legal defense of involuntary intoxication?

A no-brainer, right?  After all, a person should not be punished for something that was not their fault — that they weren’t even aware of. 

Not surprisingly, however, the courts in their infinite wisdom have taken contradictory approaches to these situations.  Some take the position that DUI is a “strict liability” offense, and so any mental element such as intent or even knowledge is irrelevant.  See, for example, State v. Pistole, 476 N.E.2d 366.  Others permit the involuntary intoxication defense only where the intoxication was caused by use of force or threat of force from a third party.  A few recognize the defense on the grounds that some mens rea (mental culpability) must exist in any crime.  See, for example, State v. Wallace, 439 N.E.2d 851.  And at least one likens a claim of involuntary intoxication to an insanity defense:  Did the defendant know the difference between right and wrong?  See Commonwealth of Pennsylvania v. Smith, 831 A. 2d 636. 

In those states which permit the defense, however, the prosecution need not prove that the intoxication was voluntary:  The defendant has the burden of proving by a preponderance of the evidence that it was involuntary — that is, he must prove his own innocence or stand convicted.

Drunk Drivers vs Distracted Drivers

The erratic driving observed by a police officer which caused him to stop the vehicle for investigation of DUI is often caused by innocent behavior.  Driving distractions such as using cell phones, lighting cigarettes, eating food or changing CDs can cause such symptoms of drunk driving as "swerving" or "drifting" — along with the officer's incorrect conclusion that the driver is intoxicated.

The fact is, however, that this distractive behavior can be more dangerous than intoxication.

For years government agencies have warned against the use of cell phones while driving.  The National Safety Council and the Transport Research Laboratory (United Kingdom), for example, have used driving simulators to test reaction times and driving performance, and the American Automobile Association has gathered statistics on drivers involved in serious motor vehicle accidents.  

A detailed study on the effects of cell phone use on driving was conducted by researchers at the University of Utah, and reported in a paper entitled Fatal Distraction? A Comparison of the Cell-Phone Driver and the Drunk Driver given at the Second International Driving Symposium on Human Factors in Driving Assessment, Training and Design (July 2003).  Using a simulator, the researchers measured how subjects reacted to vehicles braking in front of them.

Results?  Drivers conversing on a cell phone were involved in more rear-end collisions, and their reactions were 8% slower relative to normal baseline; it also took them 15% longer to return to normal speed.  By contrast, drivers who were legally drunk (at or above .08% blood-alcohol) showed no higher accident rates than normal, nor did they exhibit significant variation from normal baselines for reaction times or return to normal speeds.

The conclusion of the researchers:  Drivers on cell phones showed greater impairment, less responsive behavior and more accidents than drunk drivers.


(Thanks to Steve Oberman, Esq., of Knoxville, Tennessee.)

Can You Be an Accomplice to DUI?

Is it possible to be an accomplice to drunk driving – that is, to be convicted of “aiding and abetting” a person who was driving under the influence of alcohol?

In one case in Maine, two men were drinking together in a bar.  When they left, the owner of the car had his friend drive since the friend was less intoxicated.  The two were stopped by the police, and the owner/passenger was taken to a police station — where he refused to take a breath test because he said he had not been driving.  He was subsequently charged with operating or attempting to operate a motor vehicle under the influence.  At trial, the jury found him guilty as both a principal and an accomplice. 

On appeal, the court held that the accomplice statute applied to drunk driving offenses, and that the evidence was sufficient for a jury to find both the intent and the solicitation necessary for accomplice liability.  The defendant, said the court, had the specific intent to enlist his accomplice/friend in driving under the influence.  State v. Stratton, 591 A.2d 246 (Me. 1991). 

How far can this go?  Can you be guilty of letting a friend drive while intoxicated? The majority rule in American courts today is that any passenger, including the owner, can be held criminally liable as an aider/abettor in the commission of the offense of DUI.  Nor is there any requirement that the accomplice be a passenger or owner of the vehicle.  In Guzman v. State, 586 S.E.2d 59 (Ga. App. 2003), for example, the defendant was convicted of two counts of vehicular homicide when he allowed a 14-year-old to drive his bother and a friend in Guzman’s vehicle after having given beer to the boys.  Mr. Guzman’s criminal intent was inferred by his conduct in giving the driver alcohol and the car keys, then standing silently by as the 14-year-old got behind the wheel and drive away.

Query:  Assuming the validity of an accomplice theory, could not the accomplice’s own intoxication degate the specific intent required to be an accomplice?

How Not to Beat the Breathalyzer — Part II

A few months ago I posted a story, "How Not to Beat the Breathalyzer", about a gentleman from Alberta, Canada, who was arrested for DUI and had a novel idea on how to fool the breathalyzer: While in the back seat of the police car, he simply ate his own underpants so they would absorb the alcohol in his stomach. It didn't work. I don't know what they're drinking up there, but another of our northern neighbors just arrested for drunk driving came up with yet another theory for beating the machine. From the Ottawa Sun (March 30):

TORONTO — An accused drunk driver tried but failed to foil a police breathalyzer after stuffing his mouth full of feces…. Arrested Sunday after his Ford pickup was pulled over on a highway just outside of Barrie, the 59-year-old driver was loaded into a cruiser and taken to a police station for testing…. After arriving at the station, (Sergeant James Buchanan) said the man grabbed a handful of his own waste "and placed it in his mouth, attempting to trick the breathalyzer machine." It didn't work, Buchanan said.