CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIFTH APPELLATE DISTRICT
Plaintiff and Respondent,
RICKY JAY HOLLOWAY,
Defendant and Appellant.
(Super. Ct. Nos. CRF21868 &
APPEAL from a judgment of the Superior Court of Tuolumne County. Eric L.
Randy S. Kravis, under appointment by the Court of Appeal, for Defendant and
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant
Attorney General, Michael P. Farrell, Assistant Attorney General, Julie A. Hokans and
John A. Bachman, Deputy Attorneys General, for Plaintiff and Respondent.
Defendant Ricky Jay Holloway caused two separate accidents when he drove into
oncoming traffic, leaving one driver with serious and extensive injuries. Defendant
appeared intoxicated and blood tests revealed he had three prescription medications in his
system. He was convicted of driving under the influence and causing bodily injury,
driving with a suspended license, driving under the influence, and hit-and-run driving.
On appeal, he raises numerous contentions, but we address only one. We find merit in
his contention that the trial court erred by failing to instruct on the defense of involuntary
intoxication due to prescription medication. We will reverse and remand.
Defendant was charged in two separate pleadings, one for each accident, and the
two cases were consolidated for trial. In the first pleading, defendant was charged with
driving under the influence and causing bodily injury (Veh. Code, § 23153, subd. (a);
count I) and misdemeanor driving with a suspended license (Veh. Code, § 14601.1,
subd. (a); count II). The information further alleged, as to count I, that defendant
personally inflicted great bodily injury (Pen. Code, § 12022.7) and injured a second
victim (Veh. Code, § 23558). As to count II, the information further alleged defendant
had suffered two prior convictions for driving with a suspended license in 2005 and 2006
(Veh. Code, § 14601.1).
A second complaint charged defendant with misdemeanor driving under the
influence (Veh. Code, § 23152, subd. (a); count I), misdemeanor driving with a
suspended license (Veh. Code, § 14601.1, subd. (a); count II), and misdemeanor hit-andrun
driving (Veh. Code, § 20002, subd. (a); count III). As to count II, the complaint
further alleged defendant had suffered two prior convictions for driving with a suspended
license in 2005 and 2006 (Veh. Code, § 14601.1).
Defendant admitted the prior conviction allegations. The jury convicted him of all
charges and found true the remaining allegations. The trial court sentenced defendant to
six years in prison, as follows: the midterm of two years for driving under the influence
and causing bodily injury, plus a three-year enhancement for personal infliction of great
bodily injury and a one-year enhancement for injury to a second victim. The court
imposed concurrent one-year terms on the misdemeanor counts.
At about 7:50 a.m. Sunday morning, August 20, 2006, Louis Dias was on his way
to Orchard Supply in Sonora. He was driving a full-sized, half-ton pickup truck on
Greenley Road, going about 20 or 25 miles per hour. As he was following the curve of
the road, he noticed a white Ford Expedition headed in his direction. The Expedition was
speeding and crossing into his lane, coming right toward him. He knew the Expedition
was going too fast to stay in its lane. It was leaning and he thought it might roll. The
driver did not even try to control or turn the Expedition. There was no way Dias could
get out of the way and he knew the Expedition would hit him head-on, so he quickly
looked in his rearview mirror, turned his wheel hard and threw his body to the right. The
Expedition hit the truck’s front left panel, smashing the driver’s door and separating the
truck from the rear part of the chassis. Dias, who was wearing his seatbelt, was not
injured, but his truck was totaled.
Dias sat in his truck, not believing what had just happened. He thought the
Expedition must have stopped because it had hit him so hard, but he looked around and
saw no one. He heard a noise fading away and he assumed the Expedition had driven on.
When Dias got out of his truck, he saw a gouge in the asphalt that went up over the hill.
He realized that despite being badly damaged and dragging something, the Expedition
had not slowed down at all.
Brandon Babbitt was traveling in a car about 300 feet behind Dias’s truck. He
saw the Expedition going much faster than the posted 25-mile-per-hour speed limit. He
estimated its speed at about 60 miles per hour. He saw the Expedition swerving into the
opposing lane and he thought it would hit the truck. When it did, he heard screeching
and debris coming off the truck. After the collision, the Expedition slowed down slightly
but continued toward Babbitt. It was still going about 60 miles per hour. Babbitt was
able to turn off the road to get out of its way. As the Expedition passed by him on the
wrong side of the road, he heard a scraping sound. He went to make sure Dias was okay.
Jennifer Lavender, a certified nursing assistant, was about to unlock her car in the
hospital parking lot adjacent to Greenley Road. She saw the Expedition, which she
thought was going about 60 or 70 miles per hour, run into the truck. She thought it
would stop then, but it continued at the same or greater speed; it did not seem to slow at
all. It was fishtailing all over the road, making a loud scraping noise and throwing sparks
as it headed over the hill. Then she heard a huge explosion. She went to the truck to
check on Dias.
Shane Tipton worked as a physician’s assistant at the hospital. He was sitting in
his office, looking out on Greenley Road. He was dictating reports when he heard a loud
scraping sound that resembled the sound of a snow blower scraping the road. He stood
up and saw the Expedition coming up the road dragging the left end of its front bumper.
He thought it was going about 30 or 35 miles per hour, although it was difficult to
estimate. The driver seemed to have trouble controlling the front end. The Expedition
crossed completely into the opposing lane and ran directly into a purple PT Cruiser. The
driver of the Expedition seemed to make no attempt to stop or slow down, other than a
last-minute swerve to avoid the collision. The impact happened very quickly. The
Expedition’s rear end came off the ground and the PT Cruiser was turned horizontally
against a fence.
Tipton called 911 and went to the crash site, which was about one-quarter of a
mile away. Another man was already on the scene and he told Tipton that the driver of
the Expedition seemed okay but the driver of the PT Cruiser was in bad condition.
Tipton looked into the Expedition and saw defendant moving around and trying to get
out the passenger door because the driver’s side was damaged. Tipton told defendant to
stay where he was, but he was determined to get out of the vehicle. Defendant seemed to
be in a fog or “a bit of in a stupor for the situation.” Defendant did not ask Tipton
whether anyone was hurt or what was going on. Defendant got out with his cane and
propped himself against the back seat. The other man at the scene helped defendant to
the curb, where he sat for a few minutes. Then he got up, opened the Expedition’s hatch
and started unloading his bagged groceries onto the ground. His milk was spilling and he
was trying to salvage his groceries. In Tipton’s opinion, defendant’s behavior seemed
inappropriate and very unusual under the circumstances.
Darrin Ray, the driver of the PT Cruiser, was badly injured and a little girl in the
back seat was screaming. Tipton could not help Ray because he was pinned in the car.
Ray’s daughter suffered some abrasions on the sides of her neck that were probably
caused by the seatbelt harness. Ray’s femur, tibia and talus were broken, his lung
punctured and his pelvis shattered.1
California Highway Patrol Officer Pittman responded to the first crash scene at
about 8:00 a.m. Dias’s truck was blocking the lane. It was disabled to the extent that it
could not even be pushed out of the road.
Fifteen or twenty minutes later, Pittman approached the second accident about
one-quarter mile from the first accident. Pittman noticed a gouge in the asphalt between
the two accidents. It appeared that the Expedition had been damaged in the first accident
and had dragged something in the road. In Pittman’s opinion, a typical driver would
have noticed he was dragging something in the road that was loud enough to be heard
across the street. He believed that dragging such an object could have made the vehicle
difficult to control. Pittman saw the Expedition facing north in the southbound lane. The
purple PT Cruiser was off the road, facing west. The vehicles had been in a head-on
1 Ray spent 22 days in the hospital and underwent three surgeries. When he was
discharged from the hospital, he spent two and one-half weeks in transitional care. After
that, he went home but was still bound to a wheelchair. He eventually walked with the
assistance of a walker and then a cane.
collision and both had sustained extensive damage. Pittman believed the collision had
occurred at a fairly high speed. The driver’s side of the PT Cruiser was crushed and
emergency personnel were trying to extricate Ray from his vehicle with hydraulic jaws.
His daughter had already been taken from the scene. It took about 45 minutes to remove
Ray. He was transported by air to the hospital, where he underwent emergency surgery.
Meanwhile, defendant was milling about around the Expedition. Pittman
observed he was wearing pants, a shirt and a baseball cap. He had a slipper on one foot
and a sock on the other. He looked disheveled and not dressed to be out and about. At
this point, about 25 minutes had transpired since the accident. Pittman approached
defendant and determined he had no apparent injuries. Pittman, who was specially
trained in the recognition of the signs and symptoms of drug use, immediately noticed
defendant was having great difficulty functioning and standing, even with his cane, so
Pittman asked him to sit down on the curb. Pittman asked defendant if he was the driver
of the Expedition and told him he needed his registration and insurance information.
Defendant provided his identification card. He seemed confused and unsure about the
collision. Defendant said he did not know about the collision. Pittman was uncertain
whether defendant was aware it had occurred.
Defendant eventually told Pittman he had been driving 25 miles per hour when the
other car came into his lane, causing him to swerve to avoid it. Pittman pointed out that
the Expedition was in the opposing lane of traffic. Defendant was evasive and avoided
answering Pittman’s questions. He did say he was driving home from the store and he
knew nothing about the first accident.
Pittman observed that defendant’s speech was extremely slurred and his eyes were
very droopy. He had horizontal gaze nystagmus and his pupils were constricted and
nonreactive to light. His hands were very shaky and he refused to perform the finger-tonose
test. Pittman suspected defendant was driving while impaired, although there was
no sign he had consumed alcohol. Pittman asked defendant whether he had taken any
prescription drugs. Defendant was evasive, then said he had a bone disease. Pittman
asked him if he took medication for it. Defendant looked down and did not answer, even
though Pittman asked several times. Defendant finally said he was taking some blood
pressure medication. He did not mention any other medication. After Pittman
determined defendant had objective symptoms of drug intoxication, he arrested him.
Defendant was adamant that he was not going to the hospital. Pittman tried to
convince him to ride to the hospital in an ambulance, but he refused. He remained
obstinate so Pittman put him in his car and took him to the hospital.
At the hospital, Pittman continued his testing of defendant. Pittman did not ask
defendant to perform the psychophysical tests that included standing and walking
because he was unsteady and Pittman believed he might fall down and injure himself.
Defendant was very obstinate and did not want to cooperate with Pittman. Defendant’s
pupils were constricted and did not react to changes in light. His eyes also exhibited a
lack of convergence, an inability to track a stimulus onto the bridge of his nose. He
continued to exhibit horizontal gaze nystagmus.
According to Pittman, a lack of convergence is a symptom of depressant drugs,
inhalant drugs, PCP and cannabis. Pupil constriction is very common in someone taking
a narcotic analgesic, such as Vicodin. Droopy eyelids are a symptom of depressant drugs
and narcotic analgesics. Overall, defendant’s symptoms led Pittman to conclude
defendant was under the influence of a narcotic analgesic and it was unsafe for him to
drive a vehicle.
Defendant’s blood, drawn at the hospital, was found to contain three prescription
drugs: Soma (Carisoprodol),2 Klonopin (Clonazepam), and Vicodin (Hydrocodone).
According to Ronald Kitagawa, a forensic toxicologist, all three drugs are central nervous
system (CNS) depressants, although each has a distinct purpose.
2 Soma’s metabolic byproduct Meprobamate was also present.
Soma is often used as a muscle relaxant for those suffering from lower back pain.
The most common side effects of Soma are sedation and loss of coordination. Others
included dizziness, disorientation, weakness, and visual disturbances such as horizontal
gaze nystagmus. These effects would influence a person’s ability to process information
while driving and also his ability to track, resulting in drifting and weaving. Klonopin is
an anti-seizure medication. Because it is a benzodiazepine, it depresses the CNS. It has
similar side effects to Soma and it would have a similar effect on a person’s ability to
drive. When a person starts taking Soma and Klonopin, the side effects might be more
Vicodin is a narcotic analgesic used to treat moderate to severe pain. Although it
is also a CNS depressant, at therapeutic doses it does not usually cause the same side
effects as Soma and Klonopin. A normal dose of Vicodin would not cause many adverse
effects. When taken with other CNS depressants, however, its use could have an additive
effect. For example, when taken with alcohol, it could cause sedation and poor
In general, these medications could have an additive effect if taken together. A
tolerance to all three drugs would occur over time.
Kitagawa opined that defendant’s unreactive pupils might have been caused by
Vicodin. Nonconvergence is a symptom of either Soma or Klonopin, although it is not a
common one. Defendant’s inability to perform the balance, walk-and-turn, and one-legstand
tests could have been a result of loss of coordination due to Soma and/or Klonopin.
His slurred speech could have been caused by any of the drugs, but in particular
Klonopin, although defendant would have built up a tolerance to Klonopin.
In light of the drug levels in defendant’s blood and his symptoms described in the
police report, Kitagawa believed defendant was under the influence of one, two or all
three of these drugs. If defendant was weaving as he drove, the drugs were affecting his
driving and he was driving impaired.
On cross-examination, Kitagawa agreed that he could not conclude based on the
toxicology report alone whether defendant was impaired to drive a vehicle. Kitagawa’s
opinion was based on both the toxicology report and Pittman’s observations.
Defendant and his wife, Donna, had been married for 12 years. They lived in an
apartment on Greenley Road in Sonora with their teenaged son. Defendant had suffered
from degenerative disc disease for their entire marriage and had been walking with a cane
for about four years. He also had emphysema and chronic bronchitis. He used a
motorized scooter to go to the store and to get around. He had not driven a car since the
summer of 2005 because his license had been revoked. He and Donna owned two cars --
a Ford Expedition and a Toyota Celica -- but only Donna drove them.
Early in the summer of 2006, Donna’s father came to live with them because he
was terminally ill and needed care, which defendant and Donna provided. About two or
three weeks before the accidents, Donna’s father fell and broke his hip. He was in the
hospital for several days, then returned to defendant and Donna’s apartment. From that
point, he worsened quickly and required 24-hour care. He stayed in a hospital bed in the
living room and defendant and Donna began taking night and day shifts to care for him.
Their schedules and their lives changed. Donna would go to bed at 9:00 p.m. and
defendant would care for Donna’s father from 9:00 p.m. to 7:00 or 8:00 a.m. Then he
would go to bed and Donna would take over. During these two or three weeks,
defendant’s behavior changed. He was not sleeping well and he was tired. He was
acting strangely and he did not always seem to know what he was doing.
Sometimes Donna and defendant would be conversing and suddenly defendant
would just stare at Donna. It was as though Donna was suddenly talking to herself and
defendant was blacked out. Defendant seemed not to understand what she was saying.
He did not even acknowledge that she was speaking to him. During these episodes, he
would have a blank look of confusion on his face, but he was awake and able to move
around. These episodes could last an hour. Sometimes, defendant would go into the
bedroom to lie down.
On one occasion, Donna was talking to defendant when he just turned around and
walked down the hall. Then he fell and hit his head on the wall, leaving a hole in the
wall. When he woke up, he asked what had happened to the wall. Donna told him and
he denied it. He believed their son had kicked the wall.
On another occasion, Donna and her friend were inside the apartment when they
heard a crash. Donna jumped up and ran outside. Defendant had tipped his motorized
scooter and was lying under it. Donna lifted the scooter off of him and took him back in
These episodes occurred frequently during the two or three weeks after the
schedule change. Defendant had experienced a few episodes before the schedule change,
but they became more frequent afterward. When Donna discussed the episodes with
defendant, he had no memory of what had happened.
Defendant’s sister, Kathy, who lived in Valley Springs, tried to visit defendant
every other week. She knew he and Donna were not feeling well. They were both very
tired and they were not eating or sleeping properly. Defendant was very stressed about
Donna’s father’s illness. Kathy had noticed defendant had not been himself. He had
become forgetful and was misplacing things.
On August 19, 2006, the day before the accidents, Kathy decided to bring them
some homemade soup. Kathy arrived at their apartment around noon. She knocked, but
no one answered the door. She went in and saw Donna sleeping in the chair next to the
couch, where Donna’s father sat in hospital clothes. Defendant was in the bedroom,
sleeping in a chair next to the bed. She woke defendant up and offered to take him to the
store because neither he nor Donna were driving. He agreed and began getting some
money together. He gathered about $40 in cash and about $20 on some type of debit
card. When he and Kathy arrived at the grocery store, defendant got a cart. He spoke to
some people he knew and placed his groceries in the cart. He was moving more slowly
than Kathy wished because he was looking for sales and trying to determine how much
he could afford. He picked out some bacon, two gallons of milk, two loaves of bread, ice
cream, lunch meat and other items. He seemed fine as he was shopping. When he was
finished, they got into the checkout line. Kathy unloaded the cart while defendant
chatted with some people behind him in line. The groceries amounted to about $60, so
they knew they had enough money. Defendant gave the cashier $40 and told her he had
$20 on the card. He swiped the card, but could not remember the four-digit personal
identification number (PIN). The cashier told him he needed to remember it because he
would only get three attempts. He tried to re-enter the PIN and got it wrong again.
Kathy was getting impatient with him and told him to hurry because they were holding
up the line. Defendant tried to tell Kathy the PIN, but he could not. He became confused
and went blank. A lady behind them said he looked pale. He was saying things, but
Kathy could not hear them. Then his head went back and his eyes rolled back in his
head; he was about to fall. He seemed to be asleep. Kathy asked for help and two men
from the line helped her move defendant to a chair. Kathy and the cashier sorted through
the groceries and Kathy tried to pick out the items she knew defendant and Donna needed
the most. Kathy chose, among other things, the two gallons of milk, the two loaves of
bread and the lunch meat, and paid for them with the $40. She and the men took
defendant to the car. Some of the people from the line paid for the rest of their groceries
and brought them out.
Kathy put defendant’s seat belt on him. She did not know what had happened to
him. She was upset with him for embarrassing her. He asked her, “‘What did I do?’”
He was still “out of it,” and he sat holding his head as though he had a headache. When
they got home, Kathy ran into the house and told Donna what had happened. Kathy and
Donna helped defendant into the house and brought in the groceries. Defendant walked
toward the bedroom. Kathy hurriedly left for work.
The next morning at 6:30 a.m., defendant called Kathy. He asked her if they had
gone to the store the day before. She answered, “‘Yeah, we went to the store.’” She
asked him, “‘Don’t you remember embarrassing me?’” He said, “‘No.’” That was the
About an hour later, at 7:30 a.m., Donna got up and found defendant making
breakfast in the kitchen. He was cooking bacon. He had been up all night. Donna’s
father was in the hospital bed in the living room. Donna said “good morning,” then went
to the bathroom to get ready. When she returned about five minutes later, defendant was
gone. The bacon was still cooking in the pan. Donna asked her father where defendant
had gone and he said defendant had gone outside. Donna went outside to look for him
and she was very surprised to discover that the Expedition was gone. Later that day,
defendant called her from jail.
The next day, Donna went to look at the wrecked Expedition at the tow yard.
Inside, she found bread and milk. They already had bread and milk at home from the trip
Kathy and defendant had made to the store the day before the accidents.
At trial, Donna identified the empty bottles of some of the prescription
medications defendant had been taking. As far as Donna knew, defendant took his
medications as directed. When defendant’s schedule changed, he changed his medication
schedule too. He still took his sleeping medications at bedtime, but his bedtime had
shifted to the morning.
On cross-examination, Donna testified that each of the bottles she was observing
bore warnings. The Soma bottle stated, “‘May cause drowsiness; avoid alcohol; do not
drive if drowsy.’” The Temazepam bottle stated, “‘Do not stop without doctor’s advice;
avoid alcohol; do not drive if drowsy.’” The MS-Contin bottle stated, “‘[A]void alcohol;
do not drive if drowsy.’” The Hydrocodone bottle stated, “‘[M]ay cause drowsiness.’”
Donna had not noticed defendant becoming drowsy when he took Hydrocodone because
he had been taking it for a while and was used to it.
Donna believed defendant had been taking these four medications for five or six
years.3 Since the accidents, he had quit taking Temazepam and he had not suffered any
Jeffery Zehnder, a forensic toxicologist, testified that his lab and another lab tested
defendant’s blood for Soma, Klonopin, Temazepam and Hydrocodone. Soma was
present in defendant’s blood at 2.6 milligrams per liter, which was within the typical
therapeutic range (10-40 milligrams per liter). Klonopin was present at 0.06 milligrams
per liter, at the middle of the therapeutic range (0.005-0.120 milligrams per liter).
Temazepam was present at less than 10 nanograms per milliliter, far below the
therapeutic range (400-900 nanograms per milliliter). Hydrocodone was present at
29 nanograms per milliliter, just below the therapeutic range (30-250 nanograms per
The typical therapeutic levels do not necessarily represent the appropriate
therapeutic level for an individual person. Furthermore, blood levels cannot predict the
effects a drug would have on a person. A person’s exhibited symptoms must be
observed. All four medications are CNS depressant drugs, so any one of them alone or in
combination could cause CNS impairment, even if they were within a therapeutic range.
CNS impairment could slow processing of information and reaction time. At lower
doses, it results in relaxation; at higher doses, it can cause intoxication. Taken together,
these four medications could have an additive effect. A hypothetical driver with
symptoms similar to defendant’s who is unable to control his vehicle and is driving on
the wrong side of the road could be suffering from the effects of such drugs.
When a person starts taking Soma, it can cause intoxication and impairment even
at subtherapeutic amounts. However, a person can develop a tolerance to it, so for
3 But she also testified she thought defendant had been taking Temazepam for about
someone who has taken it for years, higher levels are needed to manifest the same effect.
Hydrocodone’s effects also depend on a person’s tolerance to the drug. A person could
have a tolerance to all of these drugs.
Gregory Sokolov, a psychiatrist, performed a work-up on defendant. He spoke to
various people and examined medical and jail records. Defendant informed Sokolov that
he took his medications on a schedule. He changed his bedtime medications to the time
he went to bed, but he was not getting much sleep. Sokolov concluded that at the time of
the accidents, defendant was in a “sedative, hypnotic, anxiolytic state,” a type of druginduced
intoxication.4 This state could render him unable to operate a motor vehicle
safely. Sokolov attributed defendant’s episodes, which he determined began in the
summer of 2006, to the direct effects of the medications he was taking. The effects were
not necessarily normal, but they were a potential risk or side effect for anyone taking the
medications. In defendant’s case, the effects were related to his change in sleep cycle.
This type of change can make a person prone to confusion, and a drug such as Klonopin
can increase the risk of blackouts.
In Sokolov’s opinion, defendant was not conscious of his actions during the
blackouts described by Donna and during the 10-minute episode at the grocery store with
Kathy. Furthermore, he believed defendant was not conscious of the fact that he was
driving on the day of the accidents. Sokolov believed Klonopin was the source of
defendant’s intoxication. He thought defendant had ingested the medication eight to
twelve hours before his blood was drawn. Sokolov’s opinion was that defendant was
actually in a blackout state or that he was “sleep driving,” despite his ability to speak and
describe events. It is possible for a person in such a state to perform acts like driving
because those acts are deeply ingrained rote memories. On the other hand, recently
4 “Anxiolytic” means reducing anxiety.
formed memories are impaired, causing the unconsciousness of those acts. When people
come out of a period of unconsciousness, they can be quite disturbed, not believing
where they are or what has happened. Some become violent and agitated. Some are
embarrassed and make up stories to explain what has happened. Others are tearful and
depressed. It is possible, as in defendant’s case, that some people become uncooperative
Sokolov noted that defendant’s prescription bottles bore warnings about operating
machinery and driving while drowsy, but not about blackouts or acting while
unconscious. Sokolov did not know whether anyone had warned defendant that his
medications, in combination with a change in his sleep cycle, might cause him to become
unconscious of his actions.
Defendant contends the trial court erred by refusing to instruct on the defense of
involuntary intoxication due to prescription medication. He argues the trial court
improperly relied on People v. Chaffey (1994) 25 Cal.App.4th 852 to conclude as a
matter of law that he was voluntarily intoxicated. We agree with defendant.
Unconsciousness is a complete defense to a criminal charge. (Pen. Code, § 26,
subd. Four;5 People v. Halvorsen (2007) 42 Cal.4th 379, 417.) “To constitute a defense,
unconsciousness need not rise to the level of coma or inability to walk or perform manual
movements; it can exist ‘where the subject physically acts but is not, at the time,
conscious of acting.’ [Citation.] If the defense presents substantial evidence of
unconsciousness, the trial court errs in refusing to instruct on its effect as a complete
defense. [Citations.]” (Ibid.) “‘“Substantial evidence” in this specific context is defined
5 Penal Code section 26, subdivision Four provides that “[p]ersons who committed
the act charged without being conscious thereof” are not criminally responsible for that
as evidence which is “sufficient to ‘deserve consideration by the jury, i.e., “evidence
from which a jury composed of reasonable men could have concluded”’ that the
particular facts underlying the instruction did exist.” [Citations.]’ [Citation.]” (People v.
Lemus (1988) 203 Cal.App.3d 470, 477.)
Section 22 of the Penal Code codified the common law, excluding from this
defense persons who become unconscious due to voluntary intoxication.6 Thus, a person
who voluntarily consumes alcohol or an illegal drug is held responsible for his ensuing
criminal acts even if he was unconscious when he committed them. (People v. Morrow
(1969) 268 Cal.App.2d 939, 949 [when person takes his first alcoholic drink by choice
and afterwards drinks successively and finally gets drunk, that is voluntary intoxication,
even if he is an alcoholic].) Moreover, when a person voluntarily ingests an illegal drug
without knowledge that it also contains another illegal drug, he is voluntarily intoxicated
and cannot rely on an unconsciousness defense. (People v. Velez (1985) 175 Cal.App.3d
785, 795-796 [defendant knowingly ingested unlawful drug (marijuana) not realizing it
contained another illegal drug (PCP); defendant could not reasonably assume marijuana
cigarette would not contain PCP]; People v. Gallego (1990) 52 Cal.3d 115, 183 [PCP
secretly given to defendant while he was taking other illegal drugs], citing People v.
Velez, supra, at pp. 795-797.)
6 Penal Code section 22 provides: “(a) No act committed by a person while in a
state of voluntary intoxication is less criminal by reason of his or her having been in that
condition. Evidence of voluntary intoxication shall not be admitted to negate the
capacity to form any mental states for the crimes charged, including, but not limited to,
purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with
which the accused committed the act. [¶] (b) Evidence of voluntary intoxication is
admissible solely on the issue of whether or not the defendant actually formed a required
specific intent, or, when charged with murder, whether the defendant premeditated,
deliberated, or harbored express malice aforethought. [¶] (c) Voluntary intoxication
includes the voluntary ingestion, injection, or taking by any other means of any
intoxicating liquor, drug, or other substance.”
Behind these long-established principles is the policy that a person should be
responsible for the results of indulging in his own vices: “The preclusion of voluntary
intoxication as an absolute defense at common law has been justified on the theory that
‘“when a crime is committed by a party while in a fit of intoxication, the law will not
allow him to avail himself of the excuse of his own gross vice and misconduct to shelter
himself from the legal consequences of such crime.”’ [Citations.]” (People v. Velez,
supra, 175 Cal.App.3d at p. 794.) As the Supreme Court stated long ago in People v.
Blake (1884) 65 Cal. 275, at page 277: “It has been so frequently and so generally held
both in England and in the highest courts of this and other States of the Union, that
drunkenness voluntarily brought on is no excuse for crime, that it may be considered as
settled law. The propriety of such a law is well vindicated by Denio, J., in People v.
Rogers, 18 N.Y. 9 [72 Am.Dec. 484]: ‘It will, moreover, occur to every mind that such a
principle is absolutely necessary to the protection of life. In the forum of conscience,
there is no doubt considerable difference between a murder deliberately planned and
executed by a person of unclouded intellect, and the reckless taking of life by one
infuriated by intoxication; but human laws are based upon considerations of policy, and
look rather to the maintenance of personal security and social order, than to an accurate
discrimination as to the moral qualities of individual conduct. But there is, in truth, no
injustice in holding a person responsible for his acts committed in a state of voluntary
intoxication. It is a duty which every one owes to his fellow-men, and to society, to say
nothing of more solemn obligations, to preserve, so far as lies in his power, the
inestimable gift of reason. If it is perverted or destroyed by fixed disease, though brought
on by his own vices, the law holds him not accountable. But if, by a voluntary act, he
temporarily casts off the restraints of reason and conscience, no wrong is done him if he
is considered answerable for any injury which, in that state, he may do to others or to
“Clearly, then, one who becomes voluntarily intoxicated to the point of
unconsciousness can have no actual intent to commit a crime; rather, criminal
responsibility is justified on the theory that having chosen to breach one’s duty to others
of acting with reason and conscience, one may not entirely avoid criminal harm caused
by one’s breach of duty. It is therefore apparent the imposition of criminal responsibility
for acts committed while voluntarily intoxicated is predicated on a theory of criminal
negligence. [Citation.] In California, whether one is criminally negligent is ascertained
by applying an objective test: whether a reasonable person in defendant’s circumstances
has engaged in criminally negligent behavior. [Citation.]” (People v. Velez, supra, 175
Cal.App.3d at pp. 794-795.)
Involuntary intoxication is a significantly different matter. A person who becomes
intoxicated involuntarily and commits criminal acts unconsciously is not held responsible
for those acts -- that is, unconsciousness due to involuntary intoxication is a complete
defense. (See Pen. Code, § 26; People v. Velez, supra, 175 Cal.App.3d at pp. 793-797.)
“The practice of relieving one of criminal responsibility for offenses committed while in
a state of involuntary intoxication extends back to the earliest days of the common law.
Involuntary intoxication, it appears, was first recognized as that caused by the
unskillfulness of a physician or by the contrivance of one’s enemies.” (Annot., When
Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge
(1976) 73 A.L.R.3d 195, fns. omitted.) The defense may have originated as an analogue
to the traditional insanity defense, although they are distinct defenses. (In re Devon T.
(Md.Ct.App. 1991) 584 A.2d 1287, 1294.)
A fundamental criterion underlying the unconsciousness defense is the defendant’s
lack of fault. (See People v. Velez, supra, 175 Cal.App.3d at p. 796.) “Today, where the
intoxication is induced through the fault of another and without any fault on the part of
the accused, it is generally treated as involuntary. Intoxication caused by the force,
duress, fraud, or contrivance of another, for whatever purpose, without any fault on the
part of the accused, is uniformly recognized as involuntary intoxication.” (Annot., When
Intoxication Deemed Involuntary so as to Constitute a Defense to Criminal Charge,
supra, 73 A.L.R.3d 195, fns. omitted.) “A person whose intoxication is not voluntary is
relieved from liability because of excusable mistake. ‘What prevents the intoxication
from being voluntary in these cases of fraud is not the trickery of the other person but the
innocent mistake of fact by the one made drunk, and an actual ignorance of the
intoxicating character of the liquor or drug has the same effect whether the mistake is
induced by the artifice of another or not ….’ [Citation.] ... ‘[N]o sufficient reason can be
given for punishing those who have become drunk through unavoidable accident, or
through an honest mistake....’ [Citation.]” (People v. Chaffey, supra, 25 Cal.App.4th at
Situations that clearly qualify as involuntary intoxication include the unknowing
ingestion of an intoxicating substance, usually due to trickery or mistake, such as
unknowingly drinking a “spiked” punch or consuming a medication believing it to be
candy. (E.g., People v. Scott (1983) 146 Cal.App.3d 823 [involuntary intoxication
conceded where defendant drank punch he did not know was spiked with PCP, then tried
to commandeer a truck and a motorcycle believing he was a CIA agent trying to save the
The less defined situations -- applicable to the present case -- involve the knowing
ingestion of prescription medications. (People v. Baker (1954) 42 Cal.2d 550, 575
[intoxication produced by knowingly taking prescription medication could be considered
either voluntary or involuntary intoxication]; People v. Chaffey, supra, 25 Cal.App.4th at
p. 856 [intoxication caused by knowingly ingesting prescription medication was either
voluntary or involuntary intoxication, depending on whether defendant had reason to
know she would become intoxicated]; People v. Hari (Ill. 2006) 843 N.E.2d 349, 359-
360 [the unexpected and unwarned adverse effect of a drug taken on doctor’s orders is
involuntary; it is not a conscious effect of defendant’s will, is not resulting from
defendant’s free and unrestrained choice, and is not subject to control of defendant’s
will]; see also People v. Garcia (Colo. 2005) 113 P.3d 775, 780; People v.
Jackson (Ill.Ct.App. 2006) 841 N.E.2d 1098, 1103; Sluyter v. State (Fla.Ct.App. 2006)
941 So.2d 1178, 1180-1181; Commonwealth v. Darch (Mass.Ct.App. 2002) 767 N.E.2d
1096, 1098-1099; State v. Gardner (Wis.Ct.App. 1999) 601 N.W.2d 670, 674-675;
Brancaccio v. State (Fla.Ct.App. 1997) 698 So.2d 597, 599; Commonwealth v. Wallace
(Mass.Ct.App. 1982) 439 N.E.2d 848, 850; Sallahdin v. Gibson (10th Cir. 2002) 275
F.3d 1211, 1236.)
The pivotal question, at least in California, is whether the defendant knew or had
reason to anticipate that his use of the prescription medication could cause intoxicating
effects. (See People v. Chaffey, supra, 25 Cal.App.4th at p. 856.) In the present case, the
trial court recognized this question as key. In fact, the court fashioned an instruction, but
did not give it because the court determined as a matter of law that defendant knew or
should have known his medications could intoxicate him because the warnings on the
prescription bottles stated he could become drowsy, should not drink alcohol and should
not drive if drowsy. Defendant conceded he knew the medications could cause
drowsiness and could impair his ability to drive. Accordingly, the court concluded that
defendant was voluntarily intoxicated and that the evidence did not support the giving of
instructions on involuntary intoxication caused by prescription medication.
In our view, defendant’s concession that he knew the medications could make him
drowsy and could impair his ability to drive did not establish that he knew or had reason
to know he would suddenly become unaware of his actions and lose his ability to make
rational decisions, such as whether to drive.7
7 Some courts have stated the question instead as whether defendant’s prescription
medication caused “unexpected and unwarned adverse effect” (People v. Hari, supra,
843 N.E.2d at pp. 359-360) or “severe unanticipated effects” (Commonwealth v. Wallace,
supra, 439 N.E.2d at p. 850). In the present case, the court concluded that because
The factual questions of what defendant knew and what he had reason to
anticipate under the circumstances were questions for the jury. It was for the jury to
determine whether defendant’s knowledge that drowsiness could occur was enough to
conclude he had reason to anticipate the more extreme adverse effects he suffered. This
consideration includes whether he knew or had reason to know that his recently altered
sleep schedule and lack of sleep, in combination with his prescription medications, could
result in intoxicating effects.8
We do not read Chaffey as holding that when a defendant knows or has reason to
know that a prescription medication could make her drowsy, she also knows or has
reason to know that something (like unconsciously driving a car) could happen once she
becomes drowsy but before she falls asleep. The trier of fact in Chaffey (the court)
determined that the defendant did have reason to know this, and the appellate court
affirmed the conviction, concluding there was substantial evidence from which the trier
defendant knew he could become drowsy, he knew or should have known he could
become intoxicated. As defense counsel noted, it is a matter of semantics, and perhaps an
8 We also note that some courts differentiate between cases in which the defendant
takes the prescription medication as prescribed and cases in which he voluntarily takes
an excessive dose of the prescription medication. We believe the factual consideration of
whether the defendant’s taking of an excessive dose affected what he knew or had reason
to know is inherent in the general factual question. (See, e.g., People v. Baker, supra, 42
Cal.2d at p. 575 [intoxication produced by knowingly taking an overdose of medication
prescribed to control his epilepsy could be considered either voluntary or involuntary
intoxication]; People v. Chaffey, supra, 25 Cal.App.4th at p. 856 [intoxication caused by
knowingly taking 120 Xanax pills to commit suicide was either voluntary or involuntary
intoxication, depending on whether defendant had reason to know she would become
intoxicated]; People v. Turner (Colo.Ct.App. 1983) 680 P.2d 1290, 1293 [involuntary
intoxication was a proper question for the jury where defendant had not been warned of
the effects of ingesting excessive doses of a prescription drug and his past experience in
taking excessive doses of the drug caused him to believe he would go to sleep, not
of fact could conclude the defendant’s intoxication was voluntary. (People v. Chaffey,
supra, 25 Cal.App.4th at pp. 854, 857.) But the facts were distinguishable from those in
the present case; in particular, the defendant in Chaffey took an overdose of 120 Xanax
pills, with knowledge of what they were, in an attempt to commit suicide. This extreme
behavior might have led the trier of fact to conclude the defendant had reason to know
she might engage in unexpected and dangerous conduct (such as driving) after she
ingested the 120 pills but before they had their intended result. In any event, it was a
question for the trier of fact. As the Chaffey court twice noted, the trier of fact could
have found that the defendant was involuntarily intoxicated, but it did not. (Id. at pp.
Here, defendant was expressly relying on the defense of involuntary intoxication
and he presented sufficient evidence to justify instruction on that defense. The failure to
so instruct eliminated defendant’s only defense from the jury’s consideration and cannot
be deemed harmless. Accordingly, we reverse and remand for a new trial.9
On retrial, CALCRIM No. 3427 should be modified to provide that a person can
be involuntarily intoxicated if he or she knowingly ingested a prescription medication but
did not know or have reason to anticipate its intoxicating effects.
9 This legal issue has not been dealt with extensively and there are few published
cases in California. Furthermore, the CALCRIM instructions on involuntary intoxication
are inadequate. We commend both defense counsel and the trial court for their extensive
efforts to decipher -- and discuss on the record -- the meaning of the law and instructions
available to them.
The judgment is reversed and the matter is remanded for a new trial.
Cornell, Acting P.J.