State v. Newman

ORS 161.095(1) requires proof that the driving element of DUII is a voluntary act for criminal liability to attach.

Defendant appealed his conviction for driving under the influence of intoxicants (DUII). Defendant claimed he did not voluntarily drive his vehicle because he suffers from a sleepwalking disorder and was sleep driving at the time he was stopped. The trial court excluded evidence of Defendant's sleepwalking disorder by determining it was irrelevant to the charge of DUII, a strict-liability offense, and the appellate court affirmed. Defendant argued that since ORS 161.095(1) requires proof that a person engaged in the voluntary act of driving for criminal liability, the evidence of his sleepwalking disorder should have been admitted because it was relevant to the issue of whether he drove voluntarily. The State argued that ORS 161.095(1) is solely applicable to criminal code offenses and did not apply to offenses listed in the vehicle code, including DUII. In the alternative, the State argued that the statute does not require the voluntary act be limited to the driving element of ORS 813.010. The Court held that ORS 801.020(7) does not prohibit application of ORS 161.095(1) to the offense of DUII. The State's construction would prevent a defendant charged with a vehicle code offense from invoking protections from all non-vehicle code provisions. Additionally, the Court acknowledged that the counterpart to ORS 161.095(1) is Model Penal Code (MPC) § 2.01. MPC § 2.01 and its commentary provide examples of what is not a voluntary act, which include bodily movement during unconsciousness or sleep, and indicate sleepwalking lacks the level of consciousness necessary for a volitional act. For criminal liability to attach, the conduct it is based on must be voluntary. The Court held that ORS 161.095(1) requires a defendant commit a voluntary act regarding the driving element of DUII. Reversed and remanded.