Mens Rea: "Automatism" Argument

Michigan Lawyer Patrick Barone explores the "Automatism" Argument in DUI Defense Multi-tasking is the last thing that I would expect for a serious, focused trial lawyer like Patrick T. Barone. He is engaged in everything that he does. He keeps his caseload down so that he predominately handles only complex cases and he never seems distracted. Yet, for Barone, a workout is so much more than the daily ritual of pumping iron and working the muscles. He pumps his brain, too. While I call him frequently for consultation, I never seem to be able to reach him on the first phone call. I finally catch up with him at 8:30 on a Tuesday morning in early May "I am watching the NPAS video on the DataMaster theory and operation course that we were given at the DMT seminar while I work out." He is talking about the two and one-half day "DMT" seminar in early April that he and I both attended. Two experts in breath testing approved by the manufacturer to train lawyers on the theory and operation of the "DMT" taught the course. DMT refers to the newest BAC DataMaster used statewide in Michigan for breath testing in OWI investigations. I am surprised to hear Barone say that he was watching the multi-day training workshop because he knows as much, if not more about the instrument than the instructors. Although formally trained in the hard sciences with a degree in biology from Oakland University, he tells me: "every time I watch or listen I get something more out of it." Barone focuses his practice exclusively on OWI. Over the past twenty years he has developed a successful practice and a marketing machine through education and educating. He spends hundreds of CLE hours every year keeping up to date on legal developments, the science of infrared spectroscopy, gas chromatography and advanced trial practice. He also educates other lawyers. It was at the Criminal Defense Attorneys of Michigan (CDAM) conference that he inspired me to become a DUI lawyer as opposed to a lawyer who just practices DUI. I ask Barone his take on the idea of "bi-furcating" the intent analysis in an OWI cases. The concept of raising intoxication as a defense to drunk driving is one that was long ago resolved. OWI is a "general intent crime, meaning intoxication is not a defense. This makes sense because otherwise almost any accused citizen could argue that she did not intend to drive drunk or even that he did not mean to "get that drunk" before driving. However, what about the case in which the person is sitting at home, ingests some form of controlled substance that causes him or her to lose control over his or her own body, then drinks some alcohol. Maybe even a lot of alcohol. You can call it "sleep-driving" and in today's society, marked by heavy use of prescription drugs and medications, it is a serious and important consideration in deciding whether or not someone has a defense to committing a crime based on a lack of mens rea. The scenarios could include the person who knowingly takes a drug that has unknown or unanticipated side-effects (such as intoxication), mistakenly takes the wrong medication or, takes a medication as prescribed to combat symptoms that arose during the evening during or after the alcohol consumption. In either event, the person has no intention to drive anywhere but because of the drug or combination of drugs and alcohol loses consciousness until a police officer is awaking him or her to perform field sobriety tests. The medical definition of "automatism" is "the involuntary functioning of an organ or other body structure that is not under conscious control, such as the beating of the heart or the dilation of the pupil of the eye," http://www.medical-dictionary.thefreedictionary.com/automatisms. Automatism also has a legal definition as a defense based on the lack of conscious control because the accused citizen's acts are not the product of his conscious decision-making. Michigan appellate courts have not disallowed the automatism defense. Barone, being an innovative advocate, decided to explore this concept and put it to the test for a client in a case in southwest Michigan. "I was successful in getting to raise the defense," he says. The case was resolved in such a way that automatism did not get put to the test before a jury. However, the doorway is there for what may be thousands of citizens who did nothing to consciously violate the OWI statute but yet find themselves charged with a serious crime because they did not understand the effect of alcohol combined medication that they were prescribed or, inadvertently took the wrong medication and found themselves sleep-driving with an illegal amount of alcohol in their system. Food for thought. Mike Nichols and Patrick T. Barone will be speaking at the DMT seminar being held at Thomas M. Cooley Law School on June 3rd. Michael J. Nichols focuses his practice exclusively on complex OWI/OWID cases and other select criminal and other litigation matters. He is the author of the Michigan OWI Handbook Published by West, an adjunct professor teaching DUI law and practice at Cooley Law School, chairs the Ingham County Bar Association Criminal Law section and is a member of the National College of DUI Defense, the National Association of Criminal Defense Lawyers, The Criminal Defense Attorneys of Michigan and the State Bar and Ingham County Bar Association's Criminal Law Sections. Published: Thu, May 12, 2011