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Com. v. Cooper5/19/2004
The defendant was convicted of operating his vehicle while under the influence of intoxicating liquor in violation of G.L. c. 90, § 24(1)(a)(1). At trial, the defendant, who admitted to consuming three alcoholic beverages before his arrest, attributed his erratic driving and intoxicated appearance to a prescription antibiotic he was taking. He asserts the trial judge erred in denying his request for an involuntary intoxication instruction and by excluding expert testimony that was offered to explain the metabolism of alcohol and the possible side effects of the defendant's medication. He also argues that the prosecutor improperly referred to evidence not in the record when he described how a pharmacy would mark a prescription medication bottle to indicate possible side effects.
We consider the instructions that were given to the jury. The judge properly instructed the jury that the "Commonwealth ... must prove that alcohol had diminished [the defendant's] capacity or ability to drive safely." (T2/30). See Commonwealth v. Stathopoulos, 401 Mass. 453, 457-458 (1988). Acknowledging that the defendant asserted he had "suffered effects from a medication he had taken," the judge further instructed that "[i]t is not necessary that alcohol ... was the sole or exclusive cause.... It is no defense under our statute to show that there was also another nonalcoholic [cause] of his behavior, so long as the influence of the liquor remained as one of the causes of his diminished capacity." (T2/31). Finally, he stated, "[I]f the alcohol he drank was not one of the causes of his diminished capacity to operate safely, meaning if the prescription drug he took caused the symptoms of his diminished capacity, he is entitled to be found not guilty." (Ibid ). There were no objections to the jury charge. (T2/32).
The State trooper who stopped the defendant testified that he observed the defendant's truck "weaving back and forth," that he could "detect the odor of alcohol" when the defendant rolled his window down, that "[h]e was very thick fingered, very slow" to find his registration, and his "eyes were red and bloodshot [and] glassy." (T1/56, 60-61). The defendant, whose speech was "very slurred," admitted having had two or three drinks (T1/62) and failed the field sobriety tests he was asked to perform. The defendant testified on cross-examination that he "must have been" under the influence of the prescription antibiotic, "because it wasn't the amount of liquor [he] had." (T1/133). He testified that he had not been warned of any possible side effects from taking the medication, and that there were no warning labels on the bottle. (T1/108).
Although "[e]xamples of involuntary intoxication include situations ... where a defendant suffers intoxicating effects from prescription medication used as instructed," Commonwealth v. Darch, 54 Mass.App.Ct. 713, 715 (2002), the record supports the jury's determination that the defendant was driving under the influence of alcohol. Here, the defendant admitted drinking several alcoholic beverages, but asserted that the antibiotic alone caused his erratic driving. The "defendant may be found guilty of driving while under the influence of intoxicating liquor if the defendant's ability to operate a vehicle safely is diminished, and alcohol is one contributing cause of the diminished ability." Commonwealth v.. Stathopoulos, 401 Mass. at 457.
***2 The jury were instructed that "if the prescription drug he took caused the symptoms of his diminished capacity," and not the alcohol, they should find the defendant not guilty. (T2/31). The requested instruction was not required, where the jury were instructed to acquit the defendant if they believed, as the defendant suggested, that the prescription, drug, and not the alcoho
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