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Wagner v. State

Court of Appeals of Alaska

January 27, 2017

RICHARD LAVERNE WAGNER JR., Appellant,
v.
STATE OF ALASKA, Appellee.

         Appeal from the Superior Court, Third Judicial District, Anchorage, Trial Court No. 3AN-11-9522 CR Larry D. Card, Judge.

          Kevin Higgins, under contract with the Public Defender Agency, and Quinlan Steiner, Public Defender, Anchorage, for the Appellant.

          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. [*]

          OPINION

          MANNHEIMER, Judge

         In the 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 accelerator instead.

         Later, 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.

         Because 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.

         Wagner was charged with driving under the influence and driving while his license was revoked.

         At 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.

         During 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.

         Based 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 this instruction:

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.

         The 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 the crash.

         But 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 ...


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