DUI Appeal - Wisconsin Ambien Defense and Alcohol

In State of Wisconsin v. Alswager, Slip Copy, 2011 WL 1485477 (Wis.App.), the defendant appealed pro se from a judgment convicting him after a jury trial of operating a motor vehicle while under the influence of an intoxicant, fifth or greater offense, and of operating a motor vehicle with a prohibited blood alcohol concentration (BAC) of 0.02 grams or more. (Yes I said 0.02!). He had a Blood alcohol concentration between 0.20 to 0.249. He attempted to defend his case at trial based upon a mistaken consumption of one of his wife's 5mg tablets of Ambien, which then caused him to black out and begin drinking to excess. The defendant went through several lawyers (a quite interesting read in and of itself) and one of them submitted his blood to testing at a lab that could only measured amounts of Ambien greater that 25 ng/ml (Limit of Detection). That lab's result came back 'negative' for an amount in excess of 25ng/ml. He then fired that lawyer and hired another. The new lawyer submitted the blood to Rocky Mountain Labs (RML), but the lab didn't have the result available by the time of trial. The judge denied the defendant's motion to continue. The defendant proceeded to trial and there testified that he had taken Ambien, and did not remember anything thereafter until awaking in a jail cell. The jury found him guilty.

After trial, the Rocky Mountain Lab reported that they had found Ambien in the blood sample consistent with ingesting one 5 milligram tablet of Ambien. Dr. Lantz of RML prepared an affidavit in which Lantz attested that he could testify that ingesting one five milligram tablet of Ambien “could” render Alswager incapable of knowing the difference between right and wrong and that one side effect of Ambien is consuming and ingesting food and liquids without memory or knowledge at the time of ingestion.

Alswager sought a new trial based on newly discovered evidence and in the interest of justice. He claimed that he could have presented a defense of involuntary intoxication. Alswager asserted that the post-trial lab results and the evidence as set forth in Lantz's affidavit would corroborate the defense raised by him at trial; namely, that he believed he had mistakenly taken an Ambien pill prescribed for his wife, and this caused him to involuntarily drink alcohol and drive while intoxicated. Relying on State v. Gardner, 230 Wis.2d 32, 601 N.W.2d 670 (Ct.App.1999), he contends that after he mistakenly took the Ambien pill, he became incapable of knowing the difference between right and wrong and therefore involuntarily drank and drove, entitling him to an involuntary intoxication instruction.

WIS. STAT. § 939.42(1) provides that an intoxicated or drugged condition is a defense if it is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at the time the act is committed. The appeals court wrote:

“The involuntary intoxication standard, rather than being congruent with the lack of specific intent standard for voluntary intoxication, is coextensive with the mental responsibility test set forth in [WIS. STAT.] § 971.15(1).” Gardner, 230 Wis.2d at 38.FN8 The effects of a prescription medication can form the basis for an involuntary intoxication defense. Id. at 40. However, the involuntary intoxication defense is limited to (1) the defendant's unawareness of what the intoxicating substance is, (2) force or duress, or (3) medically prescribed drugs taken accord ing to prescription. Id. at 41–42. This does not include patients who knowingly take more than the prescribed dosage or mix a prescription medicine with alcohol or other controlled substances, or who voluntarily undertake an activity incompatible with the drug's side effects, like driving after taking a sleeping pill."
Struggling with the issue of whether to allow for the defense in this case, the appeals court wrote:

Under Gardner, a defendant who knowingly mixes a prescription sleeping pill with alcohol is not entitled to an involuntary intoxication defense. Id. Moreover, even though Gardner held that the effects of a prescription medication could give rise to an involuntary intoxication defense, that case did not involve a charge of operating a motor vehicle while intoxicated or with a prohibited BAC. See id. at 35. This court has found no case law applying the involuntary intoxication defense to an operating while intoxicated charge. We recognize that Alswager is arguing that he is entitled to raise an involuntary intoxication defense because, unlike a defendant who knowingly mixes a prescription sleeping pill and alcohol, he did not know he was ingesting Ambien."

Ultimately, the appellate court denied the appeal and skirted the issue as to whether involuntary intoxication would in fact apply to the case:

"[E]ven assuming that an involuntary intoxication defense could apply to the charges of operating a motor vehicle while intoxicated or with a prohibited BAC, as contended by the State, the post-trial evidence proffered here was insufficient to entitle Alswager to a new trial based on newly discovered evidence. Lantz opined only that ingesting one Ambien tablet “could” render Alswager incapable of knowing the difference between right and wrong. While he also opined about potential extreme side effects from Ambien like sleep driving and the unknowing consumption of liquids, nothing in the affidavit of Lantz provided a basis to conclude that Alswager, in fact, experienced such side effects and consumed alcohol and drove without knowing the difference between right and wrong. Because any conclusion that Alswager suffered effects that rendered him incapable of distinguishing between right and wrong would be purely speculative, the new evidence that Alswager ingested one Ambien pill on the day of his arrest was irrelevant and immaterial to the issues in this case. The post-trial lab results and affidavit of Lantz provide no basis to conclude that there is a reasonable probability of a different result at a new trial."


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