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Name: People v. Mathson
Case #: C063527
Opinion Date: 11/07/2012
Citation: 210 Cal.App.4th 1297

The jury instruction on unconsciousness is flawed because it directs the jury to conclude a defendant is conscious if there is sufficient proof he acted as though he were conscious. Appellant was prescribed Ambien, which he took while at home and fell asleep. Although unaware of his acts, appellant got out of bed, entered his car and drove, i.e., he was “sleep driving.” A police officer who encountered appellant described his actions as “robotic.” The jury was instructed regarding voluntary and involuntary intoxication and the defense of unconsciousness. Appellant was convicted of driving under the influence and without a license. On appeal he challenged the consciousness instruction (CALCRIM No. 3425), because it told the jury that if there is proof beyond a reasonable doubt that defendant acted as though he were conscious, it should conclude he was legally conscious. Affirmed. The instruction is flawed because it may result in the jury considering whether there is reasonable doubt of consciousness only if the defendant acted as though he were unconscious. In addition, instead of telling the jury to find the defendant unconscious if it has a reasonable doubt that he was conscious, it instructs them to find him not guilty. A finding of not guilty only follows if the unconsciousness is due to involuntary intoxication. However, in light of the other instructions given as well as evidence that appellant knew of the potential side effects of the drug and took more of the drug than recommended, any error was harmless.