from the Superior Court, Third Judicial District, Anchorage,
Trial Court No. 3AN-11-9522 CR Larry D. Card, Judge.
Higgins, under contract with the Public Defender Agency, and
Quinlan Steiner, Public Defender, Anchorage, for the
Timothy W. Terrell, Assistant Attorney General, Office of
Criminal Appeals, Anchorage, and Craig W. Richards, Attorney
General, Juneau, for the Appellee.
Before: Mannheimer, Chief Judge, Allard, Judge, and Suddock,
Superior Court Judge. [*]
early morning of August 23, 2011, Richard Laverne Wagner Jr.
came to the end of a street, failed to stop, and drove his
van into a tree. When the police arrived, Wagner told the
officers that he had recently dropped off some out-of-town
relatives at their hotel, and that he had then taken some
medications and started driving home. Wagner told the
officers that, when he came to the end of the street, he
attempted to apply his brakes, but he mistakenly pressed the
however, Wagner changed his story: he told the police that
all he remembered was being in his home, and then the next
thing he remembered was striking the tree.
Wagner admitted drinking and smokingmarijuana, he was
arrested for driving under the influence. His breath test
showed a blood alcohol concentration of .066 percent - below
the legal limit. Wagner then consented to a blood test. A
subsequent chemical analysis of Wagner's blood showed
that he had consumed Zolpidem - a sedative that was
originally sold under the brand name Ambien, and is now
available under several brand names.
was charged with driving under the influence and driving
while his license was revoked.
Wagner's trial, his defense attorney elicited testimony
(from the State's expert witness) that one of the
potential side effects of Zolpidem is
"sleep-driving" - i.e., driving a vehicle
without being conscious of doing so.
the defense case, Wagner took the stand and testified that he
had been at home watching television, and then he took his
medication and fell asleep. According to Wagner, the next
thing he remembered was waking up when he hit the tree and
his air bag deployed. Wagner asserted that he remembered
nothing about getting into a motor vehicle and driving.
on this testimony, Wagner's attorney asked the judge to
instruct the jury that the State was required to prove that
Wagner consciously drove the motor vehicle. More
specifically, Wagner's attorney asked the judge to give
If you find that [Wagner] was under the effects of a
prescription medication, [and] that he was not aware of those
effects when he consumed the medication, and that he
performed an otherwise criminal act while unconscious as a
result of this medication, [then] you must find him not
guilty of that criminal act.
trial judge rejected this proposed instruction because the
judge ruled that, if Wagner voluntarily took the medication,
then Wagner could be found legally responsible for what
ensued, even if he was not consciously driving at the time of
even though the judge declined to instruct the jury on
Wagner's view of the law, the judge did not instruct the
jury on his view of the law either. Instead, the
judge simply gave the jury instructions on (1) the definition
of driving ...