Written by attorney James J White

Do You Need to Intend a DUI?

This is taken from a legal brief I submitted to the City of Seattle in 2010.

At common law it was said that “to constitute a crime against human laws, there must be, first, a vitious will; and, secondly, an unlawful act consequent upon such a vitious will." State v. Eaton, 168 Wn.2d 476, 229 P.3d 704 (Wash. 2010) (quoting WILLIAM BLACKSTONE, 5 COMMENTARIES *21). Strict liability crimes are disfavored. 481. Since 1975, Washington criminal statutes define four culpable mental states: intent, knowledge, recklessness and criminal negligence. WPIC 10.00 Introduction—Statutory Levels of Culpability (Part III. Principles of Liability, Chapter 10. General Requirements of Culpability) (citing RCW 9A.08.010 (1) codifying the American Law institute’s Model Penal Code). These statutory provisions apply to all criminal offenses, whether or not the offense is defined within RCW Title 9A, unless a statute specifically provides otherwise." Id.(emphasis added); RCW 9A.04.090. RCW 46.61.502 does not specifically provide otherwise so some mens rea is required for DUI. Supra; RCW 46.61.502. The least culpable mental state is criminal negligence. Supra;State v. Shipp, 93 Wn.2d 510, 515, 610 P.2d 1322 (1980);But see WPIC 10.00 and RCW 9A.08.010 (discussing an undefined fifth mental state of willfulness and only indicating that establishing knowledge establishes willfulness). Criminal Negligence is when a person fails to be aware of a substantial risk that a wrongful act may occur and his or her failure to be aware of such a substantial risk constitutes a gross deviation from the standard of care that a reasonable person would exercise in the same situation. RCW 9A. 08.010.

Even strict liability crimes require a volitional act. Eatonat 487-488.

“Fundamental to our notion of an ordered society is that people are punished only for their own conduct. Where an individual has taken no volitional action she is not generally subject to criminal liability as punishment would not serve to further any of the legitimate goals of the criminal law … We do not punish those who do not have the capacity to choose. Where the individual has not voluntarily acted, punishment will not deter the consequences…It is this volitional aspect of a person’s actions that renders her morally responsible and her actions potentially deterrable. " 481-482.

“A person cannot be morally responsible for an outcome unless the outcome is a consequence of that person’s action …unless there is a requirement of voluntariness, situational offenses are at odds with the deepest presuppositions of the criminal law" A.P. Simester, On the So-called Requirement for Voluntary Action, 1 BUFF. CRIM. L. REV.. 403, 405 (1998).

“[the] reason for requiring an act is, that an act implies a choice, and that it is felt to be impolitic and unjust to make a man answerable for harm, unless he might have chosen otherwise." O.W. HOLMES, Jr., THE COMMON LAW 40 (Mark DeWolfe Howe ed., Harvard Univ. Press, 1967).

There is a certain minimal mental element required in order to establish the actus reus itself. State v. Utter, 4 Wash.App. 137, 479 P.2d 946 (1971). Movements must be willed. HOLMES,supra, at 45-46. Specifically in the DUI context, the Washington Supreme Court has declined to ensnare the unknowing in a strict liability net stating:

“We do not think that one who innocently takes a pill, which is prescribed by a doctor, can be convicted of a crime under this statute [RCW 46.56.010] and thus be negligent per se unless he has knowledge of the pill’s harmful qualities. To hold otherwise would be to punish one who is not culpable." Kaiser v. Suburban Transp. System, 65 Wn.2d 461, 398 P.2d 14 (Wash. 1965).

Diminished Capacity is available if the defendant satisfies the following three requirements: (1) the crime charged must include a particular mental state as an element; (2) the defendant must present evidence of a mental disorder; and (3) expert testimony must logically and reasonably connect the defendant's alleged mental condition with the asserted inability to form the mental state required for the crime charged. State v. Atsbeha, 142 Wn.2d 904, 914, 921, 16 P.3d 626 (2001); State v. Eakins, 127 Wn.2d 490, 502, 902 P.2d 1236 (1995); State v. Griffin, 100 Wn.2d 417, 418–19, 670 P.2d 265 (1983); State v. Guilliot, 106 Wn.App. 355, 363, 22 P.3d 1266 (2001). See People v. Morton, 100 A.D.2d 637, 473 N.Y.S.2d 66, 68 (1984)

The provisions of RCW 9A.04 through RCW 9A.28 are applicable to all offenses defined by title 9A or another statute unless such other statute specifically provides otherwise. RCW 9A.04.090. RCW 9A.16.090 authorizes the Intoxication defense in determining whether a particularly mental state was formed. RCW 9A.16.090. Drugs have been recognized as a cause of voluntary intoxication. State v. Guilliot, 106 Wn.App. 355, 22 P.3d 1266 (Wash.App. Div. 2 2001)(quoting citations omitted). See also State v. Gilcrist, 15 Wash.App. 892, 894, 552 P.2d 690 (1976) (in cases where a physician prescribed a drug that caused intoxication, that intoxication has been held to be involuntary). A defendant seeking a voluntary intoxication instruction must show (1) that the charged crime has a mental element; (2) that there is substantial evidence of drinking; and (3) that there is evidence that the drinking affected the defendant's ability to form the requisite mental state. State v. Gabryschak, 83 Wash.App. 249, 252, 921 P.2d 549 (1996). Thus, as with diminished capacity, "the evidence must reasonably and logically connect the defendant's intoxication with the asserted inability to form the required level of culpability to commit the crime charged." Gabryschak, 83 Wash.App. at 252-53, 921 P.2d 549. See also State v. Coates, 107 Wash.2d 882, 891, 735 P.2d 64 (1987) ("[I]t is not the fact of intoxication which is relevant, but the degree of intoxication and the effect it had on the defendant's ability to formulate the requisite mental state.").

Involuntary intoxication does constitute an allowable defense. State v. Hutsell, 120 Wn.2d 913, 845 P.2d 1325 (Wash. 1993) (quoting 13A R. Ferguson, Jr. & S. Fine, Wash.Prac., Criminal Law § 2504, at 332 (1990)). In cases where a physician prescribed a drug that caused intoxication, that intoxication has been held to be involuntary. See State v. Gilcrist, 15 Wash.App. 892, 894, 552 P.2d 690 (1976) .

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