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.
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 Solomon's 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 Solomon's 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 State's 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 Solomon's 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 Solomon's 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.
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 Solomon's 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 Solomon's 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 Solomon's 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 Solomon's 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 Solomon's testimony about drinking the NyQuil, and about not reading the label, Solomon's 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 Solomon's 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 ...