“Sleep driving” as a DUII Defense

Last Friday, May 31st, the Oregon Supreme Court ruled on a DUII case involving “sleep driving” (State of Oregon v. James Robert Newman).  In an unexpected move, the Court reversed the drunk driving conviction of a Portland man who claimed he was “sleep driving” when he was arrested.  Newman admitted to drinking on the evening in question, but did not admit to voluntarily driving; as his arrest occurred after he had a friend drive him home and retired for the evening.

According to the May 31, 2013 Supreme Court media release, the Court held that a “defendant must commit a voluntary act with respect to the driving element of DUII to be convicted of that offense,” and thus the trial court erred in not allowing the defendant to introduce evidence that he was “sleep driving.” The Supreme Court ruled that the statute on requirements for criminal liability (ORS 191.095(1)) applies to DUII. ORS 191.095(1) reads: “The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.” In constructing its opinion, the Court found legislative intent to “exclude from the definition of voluntary acts any acts that are taken when a person is sleeping” (p. 12).

The June 1 Oregonian article on the case notes the unanimous decision is sending “shock waves” through the state’s prosecutorial community.  The article indicates the Court’s ruling shows  prosecutors must now prove DUII defendants were voluntarily driving when they were arrested.  The article also mentions the Oregon Department of Justice may try to work with legislators before the end of the current session to ensure involuntary driving doesn’t remain as a DUII defense.

“Sleep driving” and “sleepwalking” as defenses have an interesting history, including a Canadian man who was acquitted of murdering his mother-in-law (R v. Parks, [1992] 2 SCR 871) and the creation of the Ambien defense after Rhode Island Representative Patrick Kennedy’s 2006 auto accident.

Newman’s case has been remanded to the circuit court for further proceedings; so it will be interesting to see how a jury views the “sleep driving” evidence.