Opinion
14-P-1071
03-23-2016
COMMONWEALTH v. MICHELLE M. DUGGAN.
NOTICE: Summary decisions issued by the Appeals Court pursuant to its rule 1:28, as amended by 73 Mass. App. Ct. 1001 (2009), are primarily directed to the parties and, therefore, may not fully address the facts of the case or the panel's decisional rationale. Moreover, such decisions are not circulated to the entire court and, therefore, represent only the views of the panel that decided the case. A summary decision pursuant to rule 1:28 issued after February 25, 2008, may be cited for its persuasive value but, because of the limitations noted above, not as binding precedent. See Chace v. Curran, 71 Mass. App. Ct. 258, 260 n.4 (2008).
MEMORANDUM AND ORDER PURSUANT TO RULE 1:28
The defendant, Michelle Duggan, appeals from her conviction of operating a motor vehicle while under the influence of intoxicating liquor, in violation of G. L. c. 90, § 24(1)(a)(1). At trial, she defended on the ground that she did not have the intent to commit the crime because she was "sleep-driving" while unconscious. On appeal, she raises two principal issues: whether it was error for the judge to deny her request for an "unconsciousness" jury instruction, and whether the jury were properly instructed regarding intent. We affirm.
Background. At trial, the defendant stipulated that she had operated a vehicle on a public way while under the influence of alcohol, and that the breathalyzer test measured her blood alcohol level at .15 percent. She proceeded on the theory that the Commonwealth could not prove that she had the intent to commit the crime, because she was unconscious during the incident and, therefore, her operation of the vehicle was an involuntary act. The defendant contends that she was entitled to an "unconsciousness" jury instruction, and that it was error for the judge to deny her request.
The Commonwealth proceeded on both theories under the statute: that she operated a motor vehicle with a blood alcohol level of .08 percent or higher, and that she operated while under the influence of intoxicating liquor. See Commonwealth v. Colturi, 448 Mass. 809, 810 (2007). With respect to the latter, the Commonwealth had the burden to prove, beyond a reasonable doubt, that the defendant (1) operated a vehicle, (2) on a public way, (3) while under the influence of alcohol. See Commonwealth v. O'Connor, 420 Mass. 630, 631 (1995). The jury convicted under both theories.
The defendant testified at trial. She admitted that she drank four glasses of wine during the evening and took a fifteen milligram dose of Ambien when she went to bed. The defendant was prescribed Ambien to treat insomnia. One of the defendant's prescription containers for Ambien was admitted at trial, and affixed to it was the warning label from the issuing pharmacy. The label advised that the drug should not be taken with alcohol. The defendant also testified to knowing that she was not supposed to mix alcohol with Ambien and that one possible side effect of taking Ambien was sleep-walking. The defendant's expert witness, a pharmacist, testified that sleep-walking and sleep-driving are reported side effects of Ambien, and that consuming alcohol while taking Ambien increases the risk of such side effects.
Discussion. 1. Unconsciousness instruction. "The failure to give a requested jury instruction is reversible error only if the requested instruction is (1) substantially correct, (2) was not substantially covered in the charge given to the jury, and (3) concerns an important point in the trial so that the failure to give it seriously impaired the defendant's ability to effectively present a given defense" (emphasis omitted). Commonwealth v. DeGennaro, 84 Mass. App. Ct. 420, 431 (2013), quoting from Commonwealth v. Adams, 34 Mass. App. Ct. 516, 519 (1993).
The defendant requested the following instruction:
"You may find there's evidence which tends to show that the defendant was physically unable to control her physical actions because of unconsciousness. That is a state of mind in which a person, though capable of action, is not conscious of what she is doing at the time the crime was alleged to have been committed. In this case one element is that the act be done intentionally and voluntarily. Therefore, unless you find from the evidence beyond a reasonable doubt that the defendant was able to exercise conscious control of her physical actions she would not be guilty of a crime."
The instruction was not substantially correct. Voluntary intoxication is not a defense either to operating a vehicle with a blood alcohol percentage of .08 or higher, or operating a motor vehicle while under the influence of intoxicating liquor, and the defendant does not contend otherwise. See Commonwealth v. Troy, 405 Mass. 253, 260 (1989) (voluntary intoxication has no mitigating effect on a general intent crime). The fact that she mixed alcohol with Ambien in a manner contrary to proper prescribed use does not change the calculus. "'[T]he effects of liquor upon the mind and actions of [people] are well known to everybody.' . . . The same thing may be said about the effects of combining alcohol and drugs, even prescription drugs." Commonwealth v. Bishop, 78 Mass. App. Ct. 70, 74 (2010) (citation omitted). For this reason, unconsciousness is not a defense where there is the knowing use of alcohol and the knowing misuse of prescription medicine. Ibid. See generally Troy, supra; Commonwealth v. Moore, 36 Mass. App. Ct. 455, 460-461 & n.3 (1994). Cf. Commonwealth v. Sheehan, 376 Mass. 765, 770 (1978) (where the defendant voluntarily consumes drugs knowing that such consumption will cause a mental disease or defect, a finding of lack of criminal responsibility would not be warranted). "A [person], because [s]he is intoxicated, is not deprived of any legal advantage or protection; but [s]he cannot avail [her]self of [her] intoxication to exempt [her] from any legal responsibility, which would attach to [her], if sober." Commonwealth v. Hawkins, 3 Gray 463, 466 (1855). The defendant was not entitled to the instruction, because the instruction absolved her from responsibility for voluntarily mixing alcohol and prescription medication in a manner contrary to prescribed use. See Commonwealth v. Taylor, 263 Mass. 356, 363 (1928); Bishop, supra.
Contrast Commonwealth v. Darch, 54 Mass. App. Ct. 713, 715 (2002) (involuntary intoxication includes a situation where, without foreknowledge, "a defendant suffers intoxicating effects from the combination of alcohol and prescription medication used as instructed"), and People v. Mathson, 210 Cal. App. 4th 1297, 1312-1317 (2012) (recognizing the defense of unconsciousness as a result of involuntary intoxication, but rejecting the defense of sleep-driving as a result of voluntary intoxication).
2. Intent instruction. The instructions given regarding intent were clear and accurate. The judge's instruction defined intent as "acting voluntarily and deliberately and not because of accident or negligence"; and she instructed the jury that to find the defendant guilty "it is necessary that [the defendant] intended the act to occur which constitutes the offense." The defendant was permitted to argue that she did not intend to drive, due to unconsciousness. The prosecutor and defense counsel argued in their opening statements and in their closing arguments that the issue before the jury was whether the defendant acted voluntarily when she drove the vehicle. The defendant argued that she was unconscious due to the side effects of the Ambien. It was abundantly clear to the jury that in order to reach a guilty verdict they must find that the defendant intended to operate the vehicle. The lack of an unconsciousness instruction did not impair the defendant's ability to effectively present a legally cognizable defense. See Commonwealth v. Key, 19 Mass. App. Ct. 234, 243 (1985) ("It is well settled that a judge need not grant a particular instruction so long as the charge, as a whole, adequately covers the issue"); DeGennaro, 84 Mass. App. Ct. at 429-431.
With respect to the portion of the complaint that charged operating under the influence as opposed to operating with a blood alcohol percentage of .08 or greater, the defendant further argues that because she stipulated to being intoxicated, the judge should not have given the jury a Stathopoulos instruction because intent rather than intoxication was at issue. See Commonwealth v. Stathopoulos, 401 Mass. 453, 457 (1988). The law is clear that where there is evidence of both the voluntary use of alcohol and the improper use of prescription medication, the jury should be given the Stathopoulos instruction. See Bishop, 78 Mass. App. Ct. at 75. See also Commonwealth v. Lampron, 65 Mass. App. Ct. 340, 347-348 (2005). The voluntary consumption of alcohol combined with the ingestion of Ambien contrary to the warnings on the bottle, of which the defendant was aware, satisfies both the element of intoxication and the element of intent. Moreover, the Stathopoulos instruction required that the jury find that alcohol was a contributing factor in the impaired operation of the vehicle in order to reach a verdict of guilt. See Bishop, supra. The instructions prohibited a conviction if the jury concluded that the defendant was unconscious while driving and that the sole cause of the sleep-driving was Ambien. The jury were properly instructed. There was no error.
"A defendant may be found guilty of driving while under the influence of intoxicating liquor if the defendant's ability to operate a vehicle safely is diminished, and alcohol is one contributing cause of the diminished ability. . . . It is not necessary that alcohol be the sole or exclusive cause. It is enough if the defendant's capacity to operate a motor vehicle is diminished because of alcohol, even though other, concurrent causes contribute to that diminished capacity." Stathopoulos, supra.
Judgment affirmed.
By the Court (Trainor, Meade & Sullivan, JJ.),
The panelists are listed in order of seniority. --------
/s/
Clerk Entered: March 23, 2016.