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Commonwealth v. Darch5/13/2002
Plymouth
November 6, 2001.
Alcoholic Liquors, Motor vehicle. Motor Vehicle, Operating under the influence. Intent. Intoxication. Evidence, Intent, Intoxication. Practice, Criminal , Assistance of counsel.
The defendant was convicted by a District Court jury of operating a motor vehicle under the influence of intoxicating liquor in violation of G. L. c. 90, 24. Her appeal focuses on the question whether she received effective representation in view of trial counsel's alleged failure to vigorously pursue a defense of lack of criminal responsibility based on involuntary intoxication.
On November 9, 1997, Officer Robert Mansfield found the defendant seated behind the wheel of her car, which had apparently struck another vehicle. The other vehicle was partially on the lawn of 62 South Street in Hingham. His efforts to ascertain how the accident had occurred were unsuccessful. The defendant could offer no explanation. Based upon his observations of the points of impact of the vehicles, tire marks, and an odor of alcohol on the defendant's breath, Mansfield placed the defendant under arrest. She was placed in an ambulance and taken to the South Shore Hospital. Mansfield's opinion, to which he testified at trial, was that the defendant was under the influence of alcohol based on the odor of her breath and her slurred speech.
The defendant stayed at the hospital for approximately eight hours and was taken to the police station for booking at 4:00 P.M. on November 10, 1997. There, duly advised of her rights regarding chemical testing, the defendant elected to submit to a blood alcohol examination. See G. L. c. 90, 24(1)(e), as amended through St. 1980, c. 383, 1. Lieutenant Joseph McCracken, a Hingham police officer trained to administer breathalyzer tests, examined samples of the defendant's exhalations, and determined that she had a blood-alcohol level of .14, a convincing result considering a reading of .08 or higher triggers a statutory presumption of intoxication. See G. L. c.á90, á24(1)(e), as amended by St. 1980, c. 383, 1.
After the Commonwealth presented its case, the defendant called an expert witness, Dr. Millet Hardy, a neuropsychiatrist who had begun treating the defendant about nine months after her arrest. For reasons that do not appear in the record, Dr. Hardy never spoke to the psychiatrist who had been treating the defendant at the time of her arrest, and that psychiatrist was not called to testify. What is clear is that prior to the accident, the defendant had been diagnosed and treated for attention deficit disorder as well as depression and anxiety. In Dr. Hardy's opinion, at the time of her arrest, the defendant had taken too much prescribed medication which "actively precipitated a manic" state. Combined with the two drinks that she had admitted to imbibing, this state caused her to become psychotic and unable to control her behavior in a rational way. In Dr. Hardy's opinion, the defendant's decision to drive, which was preceded by her unsuccessful attempt to commit suicide in her car by occluding the tail pipe of the exhaust system, was influenced by delusions. Dr. Hardy established, by reviewing her past prescriptions, that the four medications prescribed the defendant at the time of the accident all carried warnings that they should not be taken with alcohol. The defendant argues that her attorney had submitted sufficient proof to argue that the defendant was "involuntarily intoxicated," and so lacked criminal responsibility at the time of the accident here.
Examples of involuntary intoxication include situations in which a defendant is compelled to ingest intoxicants unwillingly, or where a defendant suffers
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