Monday, July 18, 2011

DUI Appeal - defense of unconsciousness as a result of voluntary intoxication

In People of California v. Ferguson, --- Cal.Rptr.3d ----, 2011 WL 1589091 (Cal.App. 4 Dist.) the defendant appealed a DUI causing great bodily harm and a 2d degree murder conviction alleging inter alia that: (1) the trial court erred in denying his request for an instruction on the partial defense of unconsciousness as a result of voluntary intoxication (CALCRIM No. 626), which could have reduced the offense to involuntary manslaughter; (2) evidence of data obtained from his car's event data recorder was improperly admitted.

On February 22, 2008, Michael and Grace Sein were driving home around 11 p.m. They were stopped at a red light at the intersection of MacArthur and Jamboree in Newport Beach, when they were rear-ended by a car driven by Ferguson, a Marine stationed at Camp Pendelton. Michael Sein was killed; Grace Sein was severely injured. Ferguson suffered a broken ankle and some internal injuries. A witness to the accident testified that immediately after the collision, Ferguson looked “normal” but seemed disoriented and confused “like a person [who] was just in an accident.”
The prosecution's accident reconstruction expert opined Ferguson was driving at about 75 miles per hour at the time of impact based on the injuries and the condition and placement of the vehicles. The event data recorder recovered from Ferguson's vehicle showed his car, a Dodge Caliber, was traveling at 75 miles per hour and accelerating when he struck the Seins's car, an Aston–Martin, although acceleration had stopped one-tenth of a second before impact.

Ferguson claimed he drank only two beers that night. Ferguson told Zeeman he was driving to his home in Santa Ana from Camp Pendleton and at Zeeman's request gave a detailed description of the route he would normally drive to get there. Ferguson appeared confused when Zeeman told him he had been driving in the wrong direction from his home.

A blood sample was taken from Ferguson about three hours after the accident. His blood alcohol level measured .12 percent. By extrapolation, Ferguson would have had between a .16 and .17 percent blood alcohol concentration at the time of the accident, or if he was a “tolerant drinker,” it could have been as high as .21 percent.

The defense's evidence included the fact that the defendant suffered PTSD which caused him to self-medicate. He argued that he could use the partial defense of 'voluntary intoxication to the point of unconsciousness' as a basis to obtain a lesser-included instruction for involuntary manslaughter. Rejecting this argument the court stated:

"Here, there was insufficient evidence to support an instruction on unconsciousness as a partial defense. An unconscious act, as defined “within the contemplation of the Penal Code is one committed by a person who because of somnambulism, a blow on the head, or similar cause is not conscious of acting and whose act therefore cannot be deemed volitional.” (citations omitted) Unconsciousness “need not mean that the actor lies still and unresponsive: section 26 describes as ‘[in]capable of committing crimes ...[p]ersons who committed the act ... without being conscious thereof.’ (Italics added.) Thus, unconsciousness ‘ “can exist ... where the subject physically acts in fact but is not, at the time, conscious of acting.” ‘ [Citations.]” ( Ochoa, supra, 19 Cal.4th at pp. 423–424.)

* * * *
"[T]he trial court did not err by refusing to instruct on unconsciousness due to voluntary intoxication. The uncontroverted facts were that Ferguson was aware he was intoxicated, was attempting to sober up, and was focused on getting himself home. He was capable of devising plans to dupe his fellow Marine into retrieving his car keys. He drove a substantial distance prior to the accident without apparent incident. There was insufficient evidence “deserving of consideration that [he] was unconscious due to voluntary intoxication” ( Halvorsen, supra, 42 Cal.4th at p. 418), when the accident occurred."

As far as the admissibility of the evidence from the EDR (event data recorder) was concerned, Ferguson argued that Vehicle Code section 9951, subdivision (d), precluded admission of the information obtained from an event data recorder in a judicial proceeding. Vehicle Code section 9951 requires the manufacturer of a vehicle equipped with recording devices commonly called “ ‘event data recorders (EDR)’ or ‘sensing and diagnostic modules (SDM),’ “ to disclose its existence in the owner's manual. (Veh.Code, § 9951, subd. (a).) Vehicle Code section 9951, subdivision (c), provides, “Data described in subdivision (b) [FN4] that is recorded on a recording device may not be downloaded or otherwise retrieved by a person other than the registered owner of the motor vehicle, except under one of the following circumstances: [¶] (1) The registered owner of the motor vehicle consents to the retrieval of the information. [¶] (2) In response to an order of a court having jurisdiction to issue the order. [¶] (3) For the purpose of improving motor vehicle safety, including for medical research of the human body's reaction to motor vehicle accidents, and the identity of the registered owner or driver is not disclosed in connection with that retrieved data.... [¶] (4) The data is retrieved by a licensed new motor vehicle dealer, or by an automotive technician ... for the purpose of diagnosing, servicing, or repairing the motor vehicle.” (Italics added.) Vehicle Code section 9951, subdivision (d), upon which Ferguson relies provides, “A person authorized to download or otherwise retrieve data from a recording device pursuant to paragraph (3) of subdivision (c), may not release that data, except to share the data among the motor vehicle safety and medical research communities to advance motor vehicle safety, and only if the identity of the registered owner or driver is not disclosed.” (Italics added.)

The court stated that "the issue is not whether Vehicle Code section 9951 permits admission of EDR data into evidence—as already noted, all relevant evidence is admissible unless otherwise provided by statute ( Evid.Code, § 351)—the issue is whether the statute prohibits admission of EDR evidence. And in arguing Vehicle Code section 9951, subdivision (d), precludes use of EDR data in judicial proceedings, Ferguson has taken its language out of context."

Holding that the statute did not exclude the evidence, the court upheld its admissibility, noting that the information was obtained via a search warrant.

The defendant's other contentions were similarly rejected, and the conviction upheld.

Editor's note: The court did mention that there were 4th amendment protections regarding the EDR data:

"[I]n People v. Xinos (2011) 192 Cal.App.4th 637 ( Xinos ), is misplaced. Xinos was a Fourth Amendment case. It held “a motorist's subjective and reasonable expectation of privacy with regard to her or his own vehicle encompasses the digital data held in the vehicle's [sensing and diagnostic module (SDM) ].” ( Id. at p. 659.) The court concluded the warrantless downloading of the SDM's digital data, a year after the accident and unsupported by probable cause, violated defendant's Fourth Amendment rights. ( Id. at pp. 659–660.) Accordingly, it held the trial court erred by denying defendant's motion to suppress. ( Id. at p. 664.) "

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