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Involuntary intoxication defense to OWI rejected

Village of Menomonee Falls v. Kristina L. Smithers, 2018AP993, District 2, 2/6/19 (one-judge decision; ineligible for publication); case activity (including briefs)

The circuit court properly rejected Smithers’s invocation of an involuntary intoxication defense in her prosecution for operating while under the influence of the prescription medication she was taken as prescribed.

Smithers doesn’t dispute there was sufficient evidence at trial to establish she was operating her vehicle while she was incapable of safely doing so due to the prescription medications she had taken. But, she argues, the medications had an unexpected, unanticipated adverse effect, and therefore could avail herself of the defense of involuntary intoxication. (¶¶3-9). The court of appeals isn’t convinced:

¶13    To begin, as we stated in State v. Gardner, 230 Wis. 2d 32, 601 N.W.2d 670 (Ct. App. 1999), the involuntary intoxication defense is not “available” to a defendant where the defendant “voluntarily undertakes an activity incompatible with” the side effects of the prescribed medications he/she has taken. Id. at 42. Furthermore, the involuntary intoxication defense only acts as a defense if the defendant’s drugged condition was “involuntarily produced” and either: (1) rendered her “incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed” or (2) “[n]egatives the existence of a state of mind essential to the crime.” See Wis. Stat. § 939.42; State v. Anderson, 2014 WI 93, ¶22, 357 Wis. 2d 337, 851 N.W.2d 760. Based upon the facts of this case, we conclude Smithers is not saved by the involuntary intoxication defense for the following reasons: (1) the defense is not “available” to her because she “voluntarily undert[ook] an activity incompatible with” the side effects of the medications she had taken; (2) relatedly, the evidence shows that Smithers continued driving despite realizing the medications were impairing her ability to drive safely, i.e., at a time when she was still capable of distinguishing between right and wrong, she decided to continue driving farther on the interstate; and (3) there is no “state of mind essential to the crime” of OWI, and thus subsec. (2) of § 939.42 simply does not apply. ….

The “activity incompatible with” the side effects that Smithers “voluntarily undertook” was to continue to drive her car despite her realization that her medications were beginning to impair her. By continuing to drive despite realizing her impairment, she was still capable of distinguishing between right and wrong at the time of the criminal act and the first alternative prong of the defense is unavailable. (¶¶7, 14-15).

In addition, OWI is a strict liability crime, with no mental state requirement, State v. Luedtke, 2015 WI 42, ¶¶64, 67, 362 Wis. 2d 1, 863 N.W.2d 592, so there’s no state of mind essential to the crime for the intoxication to negate, and the second alternative prong of the defense doesn’t apply. (¶¶16-18).

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