Defendant was convicted of felony driving under the influence of intoxicants (DUII), ORS 813.010. At trial, defendant sought to introduce evidence that he suffers from a sleepwalking disorder and was “sleep driving” at the time he was stopped in his vehicle.
I. BACKGROUND
We take the following facts from the Court of Appeals opinion.
“Defendant met his friends for dinner one evening and, anticipating that he would drink alcohol at dinner, left his car parked by his apartment and walked to the restaurant. Thereafter, defendant’s friends drove him home, and he went to sleep. Later that evening, a police officer followed defendant’s car and observed defendant make a left-hand turn without signaling or stopping, run a red light, and drive down the middle of a street, straddling the two traffic lanes. The officer then activated his overhead lights to initiate a traffic stop and, in response, defendant pulled into a parking lot. The officer approached defendant’s car, smelled a strong odor of alcohol, and observed defendant’s bloodshot, watery eyes and slow, slurred speech. Defendant agreed to perform field sobriety tests and, after failing them, was taken into custody. At the police station, defendant consented to a Breathalyzer test, which revealed that he had a blood alcohol level of 0.15 percent.”
Id. at 336.
Defendant was charged with felony DUII, reckless driving, and recklessly endangering another person. Before trial, the state filed a motion seeking to exclude as irrelevant testimony regarding defendant’s sleepwalking disorder and his “sleep driving on the night in question.” Defendant argued that evidence of his sleepwalking was relevant to negate the requirements for criminal liability under ORS 161.095 — specifically, proof of a voluntary act with respect to the driving element of DUII. Defendant contended that he was not capable of performing the necessary volitional movements to consciously control his vehicle because he was asleep when the police stopped his vehicle.
As part of his offer of proof, defendant testified that he had sleepwalked within his apartment on a number of occasions in the past, but, to his knowledge, had not left his apartment while sleepwalking before this incident.
“Sleep driving is thought of as being sort of a subtype of sleepwalking or an extension of sleepwalking. It’s a motor behavior that occurs without consciousness * * * that comes out during sleep.
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“[J]ust as someone’s capable of sort of walking around the house, doing goal-directed behavior, such as eating, people can get behind the wheel, start up the car, and drive.”
Dr. Ramseyer emphasized that activities performed while sleepwalking, such as “sleep driving,” are unconscious acts. He further noted that sleepwalking resulting in “sleep driving,” while uncommon in the general population, is a well-established phenomenon. If permitted to testify, Dr. Ramseyer would have rendered an expert opinion that defendant was “sleep driving” when stopped by police.
In seeking to exclude defendant’s proffered evidence, the state argued that the evidence was irrelevant because the state was required to prove only that defendant drove a vehicle with a blood alcohol content of .08 percent or greater or was otherwise under the influence of an intoxicant. The trial court agreed with the state. It concluded that DUII is a strict-liability offense under State v. Miller,
On appeal, defendant and the state generally reprised the arguments made before the trial court. Defendant argued, in particular, that the only question decided in Miller was whether proof of a culpable mental state was required for the intoxication element of DUII. Defendant further asserted that proof of volition is required to find a person criminally liable for DUII.
The Court of Appeals affirmed the trial court’s decision, concluding that this court had analyzed the legislative history relating to all elements of the DUII offense in Miller, not only the intoxication element. The Court of Appeals isolated a passage from Miller in which this court identified “‘a legislative intent to dispense with any culpable mental state requirement for the offense [of DUII] or for any of its material elements’ as part of a concerted ‘legislative effort to improve public safety by getting tougher on DUII offenders.’ ” Newman,
In this court, defendant again asserts that, for the purposes of DUII prosecutions, ORS 161.095(1) requires proof that a person committed the voluntary act of driving for criminal liability to attach. In defendant’s view, evidence of his sleepwalking disorder and his condition on the night in question is relevant to the issue of whether his driving was voluntary, and thus should have been admitted. We allowed review to examine whether the trial court committed legal error in excluding defendant’s “sleep driving” evidence. See State v. Davis,
II. ANALYSIS
The relevant statutory provision defining felony DUII is set forth in the Oregon Vehicle Code as ORS 813.010. At the time that police officers stopped defendant, that statute provided, in pertinent part:
“(1) A person commits the offense of driving while under the influence of intoxicants if the person drives a vehicle while the person:
“(a) Has 0.08 percent or more by weight of alcohol in the blood of the person as shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150;
“(b) Is under the influence of intoxicating liquor, a controlled substance or an inhalant; or
“(c) Is under the influence of any combination of intoxicating liquor, an inhalant and a controlled substance.
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“(4) Except as provided in subsection (5) of this section, the offense described in this section, driving while under the influence of intoxicants, is a Class A misdemeanor and is applicable upon any premises open to the public.
“(5)(a) Driving while under the influence of intoxicants is a Class C felony if the current offense was committed in a motor vehicle and the defendant has been convicted, at least three times in the 10 years prior to the date of the current offense, of any of the following offenses * * *:
“(A) Driving while under the influence of intoxicants * * * [ ] ”
ORS 813.010 (2007).
ORS 813.010 sets forth two essential elements. A person commits the crime of DUII when the person (1) “drives a vehicle” (2) while “under the influence” of an intoxicating substance. See State v. King,
As noted, when he was stopped, defendant admitted that he was intoxicated. He did not admit, however, that he had been consciously driving. He now contends, therefore, that he cannot be found criminally liable for driving his vehicle unless the voluntary act requirement of ORS 161.095(1) is met in this case. That statute requires a “voluntary act” as a “minimal requirement” for criminal liability:
“The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.”
ORS 161.095(1). Defendant thus contends that he should have been allowed to show that he was not engaged in a volitional act when driving because he was unconscious. The state responds that ORS 161.095(1) does not apply to DUII, or, alternatively, that ORS 161.095(1) nevertheless does not require that the voluntary act be limited to the driving element of DUII. We first address the state’s contention that the volitional act requirement of ORS 161.095(1) does not apply to DUII.
A. Applicability of ORS 161.095(1) to DUII
As a threshold issue, the state asserts that the voluntary act requirement of ORS 161.095(1) does not apply to offenses defined in the vehicle code, including the offense of DUII. ORS 161.095 was enacted in 1971 as part of a comprehensive revision of the substantive
“(1) Chapter 743, Oregon Laws 1971, shall govern the construction of and punishment for any offense defined in chapter 743, Oregon Laws 1971, and committed after January 1, 1972, as well as the construction and application of any defense to a prosecution for such an offense.
“(2) Except as otherwise expressly provided, or unless the context requires otherwise, the provisions of chapter 743, Oregon Laws 1971, shall govern the construction of and punishment for any offense defined outside chapter 743, Oregon Laws 1971, and committed after January 1, 1972, as well as the construction and application of any defense to a prosecution for such an offense.”
(Emphasis added.)
Based on the text emphasized in the statute above, the state contends that provisions of the criminal code do not automatically apply to offenses — such as the offense of felony DUII — that are defined in the vehicle code. The state specifically points to ORS 801.020(7) as expressing the legislature’s intent in that regard. ORS 801.020(7) was enacted in 1975 as part of the newly revised vehicle code. See Or Laws 1975, ch 451, § 5. It states:
“The vehicle code shall govern the construction of and punishment for any vehicle code offense committed after June 27, 1975, the construction and application of any defense to a prosecution for such an offense and any administrative proceedings authorized or affected by the vehicle code.”
ORS 801.020(7). The state argues that when an offense such as DUII is at issue, the legislature intended that the vehicle code “govern” instead of the criminal code. Accordingly, the state asserts that the vehicle code provides the exclusive source of law for construing vehicle code offenses and determining what the state must prove to establish such offenses. The state further argues that, if the legislature had intended discrete portions of the criminal code to apply to vehicle code offenses, it would have plainly said so. See former ORS 484.350(3), repealed by Or Laws 1999, ch 1051, § 32 (enacted by the 1975 legislature to provide that “the criminal and criminal procedure laws of this state relating to a violation as described in ORS 161.505 and 161.565 [of the Oregon Criminal Code] apply with equal force and effect to a traffic infraction”). Defendant responds that the state reads too much into ORS 801.020(7). In defendant’s view, the legislature intended that statute to be merely a timing provision to control the effective date of the new code.
The parties’ respective constructions of ORS 810.020(7) highlight textual ambiguity in that provision that this court has not previously addressed. However, the relevant legislative history resolves the ambiguity in favor of defendant’s position. ORS 801.020(7) was originally drafted by the Committee on the Judiciary as part of a comprehensive revision of the vehicle code. See Proposed Revision, Oregon Vehicle Code, Committee on Judiciary, § 5(1) (Jan 1975). In the committee’s proposed revision, ORS 801.020(7) was outlined in section 5, which states:
“Section 5. (Application of new vehicle code provisions to prior and subsequent actions.) (1) Sections 2 to 169 of this 1975 Act shall govern the construction of and punishment for any vehicle code offense defined in this 1975 Act and committed after the effective date of this 1975 Act, the construction and application of any defense to a prosecution for such an offense and any administrative proceedings authorized or affected by this 1975 Act.
“(2) Sections 2 to 169 of this 1975 Act shall not apply to or govern the construction of or punishment for any vehicle code offense committed before the effective date of this 1975 Act or the construction and application of any defense to a prosecution for such an offense.”
Proposed Revision, Oregon Vehicle Code § 5 (boldface in original). A comment to that section states:
“This section sets forth the rules under which the revised vehicle code will beapplied to particular actions and proceedings in order to provide for an orderly transition from the old to the new statutes. The section covers the application of substantive as well as procedural provisions.”
Proposed Revision, Oregon Vehicle Code § 5 Commentary. In the Interim Judiciary Committee’s discussion of the provision in 1974, it stressed that the provision was “meant to be a device to bridge the gap between the revised vehicle code and the existing [code]” so that cases could be resolved without ambiguity as to whether an old or new statute was operative. Tape Recording, Senate Interim Judiciary Committee, SB 1, Sept 25, 1974, Tape 24, Side A (statement of Project Director Donald L. Paillette) (emphasis added). That legislative history strongly suggests that the purpose of the provision was to state the effective date of the newly revised vehicle code.
That understanding is confirmed by considering ORS 801.020(7) in context with other statutory provisions. Under the state’s construction, no criminal code provisions, nor any provisions outside the vehicle code, would apply to vehicle code offenses unless the vehicle code so stated. That would mean that a defendant charged with a vehicle code offense such as DUII could not invoke the time limitations for prosecution under ORS 131.105 to 131.155, assert the speedy trial provision of ORS 135.747, or claim the “guilty except for insanity” defense of ORS 161.295. See generally State v. Baty,
B. Voluntary Act — ORS 161.095(1)
We now turn to the legislative determination that a person perform a voluntary act for imposition of criminal liability. Again, ORS 161.095(1) provides that:
“The minimal requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform an act which the person is capable of performing.”
The legislature has defined a “voluntary act” as used in ORS 161.095(1) to mean “a bodily movement performed consciously and includes the conscious possession or control of property.” ORS 161.085(2). Applying that understanding to this case, defendant is not criminally liable under ORS 161.095(1) if he did not perform a bodily movement consciously.
Although the legislature has defined “voluntary act,” it has not further defined what constitutes a “conscious” bodily movement. We have recognized that “conscious” as used in ORS 161.085(2) is a word of common usage. State v. McDonnell,
“2 : perceiving, apprehending, or noticing with a degree of controlled thought or observation : recognizing as existent, factual, or true: a: knowing or perceiving something within oneself or a fact about oneself* * * b : recognizing as factual or existent something external * * * 5 a : having rational power : capable of thought, will, design, or perception * * * 7 : mentally active : fully possessed of one’s mental faculties : having emerged from sleep, faint, or stupor : AWAKE <the patient becoming ~ as the anesthesia wears off>”
Webster’s Third New Int’l Dictionary 482 (unabridged ed 2002) (boldface omitted). That definition associates consciousness with a wakeful state and implies that a person in a
That understanding is consistent with the pertinent legislative history. The commentary accompanying the 1971 substantive criminal code revisions explains that ORS 161.095(1)
“enunciates the basic principle that, no matter how an offense is defined, the minimal requirement for criminal liability is conduct which includes a ‘voluntary’ act or omission. This excludes all ‘involuntary’ acts such as reflex actions, acts committed during hypnosis, epileptic fugue, etc.”
Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report § 11 Commentary (July 1970) (providing comments to §§ 7, 8). That explanation discloses a legislative intent to exclude from the definition of voluntary acts any acts that are taken when a person is sleeping.
In drafting the criminal code’s liability requirements, the legislature looked to analogous provisions of the Model Penal Code. Model Penal Code section 2.01 is the counterpart of ORS 161.095(1), and requires proof of volition to establish criminal liability. Section 2.01 provides examples of what is not a voluntary act. Those examples include a reflex or convulsion, a bodily movement during unconsciousness or sleep, conduct during or resulting from hypnosis, and movement that otherwise is not a product of the effort or determination of the actor.
Furthermore, the commentary to Model Penal Code section 2.01 states that criminal liability must be based on conduct that includes a voluntary act because
“[t]he law cannot hope to deter involuntary movement or to stimulate action that cannot physically be performed; the sense of personal security would be short-lived in a society where such movement or inactivity could lead to formal social condemnation of the sort that a conviction necessarily entails. People whose involuntary movements threaten harm to others may present a public health or safety problem, calling for therapy or even for custodial commitment; they do not present a problem of correction.”
American Law Institute, Model Penal Code Comments § 2.01, 119 (Tentative Draft No. 4 1955). See also Wayne R. LaFave, 1 Substantive Criminal Law § 6.1(c), 425-26 (2d ed 2003) (“The deterrent function of the criminal law would not be served by imposing sanctions for involuntary action, as such action cannot be deterred.”). In sum, the deterrent function of criminal sanctions and basic fairness are not served by punishing a person whose acts are the result of unconscious movement because the person committed those acts while sleeping. Thus, in enacting ORS 161.095(1), the legislature requires proof of a voluntary act for criminal liability to attach.
C. Operation of ORS 161.095(1) in DUII prosecutions
We next address the state’s argument that ORS 161.095(1) requires that the prosecution
We disagree. Although intoxication is an element of the DUII offense, it is not the proscribed conduct; it is a condition necessary to establish the offense. The voluntary act that ORS 161.095(1) requires must be linked not to a condition but to proscribed conduct. That does not mean, however, that the only relevant voluntary act is the act of driving. The commentary to the Model Penal Code indicates that the voluntary act may occur prior to the proscribed act as long as it is related to it. That is to say, although a prior voluntary act may suffice, not merely any act, however tenuously related, is sufficient. As the commentary to section 2.01 explains:
“It will be noted that the formulation does not state that liability must be based on the voluntary act or the omission simpliciter, but rather upon conduct which includes such action or omission. The distinction has some analytical importance. If the driver of an automobile loses consciousness with the result that he runs over a pedestrian, none of the movements or omissions that accompany or follow this loss of consciousness may in themselves give rise to liability. But a prior voluntary act, such as the act of driving, or a prior omission, such as failing to stop as he felt illness approaching, may, under given circumstances, be regarded as sufficiently negligent for liability to be imposed. In that event, however, liability is based on the entire course of conduct, including the specific conduct that results in the injury.”
American Law Institute, Model Penal Code Comments § 2.01, 120 (Tentative Draft No. 4 1955) (emphasis in original). Professor LaFave similarly expresses that point:
“Although a voluntary act is an absolute requirement for criminal liability, it does not follow that every act up to the moment that the harm is caused must be voluntary. Thus, one may be guilty of criminal homicide (or battery) even though he is unconscious or asleep at the time of the fatal (or injurious) impact, as where A, being subject to frequent fainting spells, has such a spell while driving his car (or, after the becoming aware that he is sleepy, continues to drive and falls asleep at the wheel), with the result that the car, out of control, runs into and kills (or injures) B while A is unconscious or asleep. Here, A’s voluntary act consists of driving the car * * *.”
LaFave, 1 Substantive Criminal Law § 6.1(c) at 429 (internal footnotes omitted). Under that formulation, a defendant may be held criminally liable for a prior voluntary act if that act, through a course of related and foreseeable events, results in proscribed conduct.
In this case, the jury was required to find that defendant engaged in a volitional act that led to the proscribed act of driving, but was permitted to consider evidence that defendant engaged in volitional acts other than the act of driving. For instance, the jury could have considered evidence that defendant engaged in the volitional act of drinking, if there were evidence that drinking led to the driving. However, the jury also could have concluded that defendant’s “sleep driving” would have occurred without regard to whether he consumed alcohol and, thus, that defendant did not engage in a voluntary act which led to the act of driving.
We conclude that the text, context, and legislative history of ORS 161.095(1) demonstrate a legislative intent to require that a defendant committed a voluntary act with respect to the driving element of DUII. This court’s case law is not to the contrary. Although the courts below cited Miller,
To summarize: We hold that the minimal voluntary act requirement of ORS 161.095(1) applies to the driving element of DUII in this case. Here, the trial court erred in not allowing defendant to adduce evidence that he was not conscious when he drove on the evening in question. The state was entitled to present evidence that defendant’s drinking or other volitional act resulted in defendant driving his vehicle that evening. As noted, the state may also show a voluntary act with evidence that defendant had engaged in “sleep driving” prior to this incident and failed to take adequate precautions to remove access to his car keys. See State v. Newman,
III. DISPOSITION
As previously noted, the trial court concluded that defendant’s sleepwalking evidence was irrelevant to any issue in controversy and therefore excluded the evidence. As this court has explained, evidence is relevant “so long as it increases or decreases, even slightly, the probability of the existence of a fact that is of consequence to the determination of the action.” State v. Barone,
Nonetheless, this court will not reverse a trial court’s erroneous decision to exclude evidence if the error is harmless. Under Article VII (Amended), section 3, of the Oregon Constitution,
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
We place in quotes defendant’s use of the term “sleep driving” because the term is not in common usage. “Sleepwalking disorder” is recognized at section 307.46 of the American Psychiatric Association Diagnostic and Statistical Manual of Mental Disorders (4th ed text rev 2000) (DSM-IV-TR).
In Miller, we held that “being under the influence of an intoxicant is a strict liability element” of DUII, and, as such, requires no proof of a culpable mental state as to that element.
The American Law Institute, Model Penal Code, section 2.01, 24 (Proposed Official Draft 1962) provides:
“(2) The following are not voluntary acts within the meaning of this Section:
“(a) a reflex or convulsion;
“(b) a bodily movement during unconsciousness or sleep;
“(c) conduct during hypnosis or resulting from hypnotic suggestion;
“(d) a bodily movement that otherwise is not a product of the effort or determination of the actor, either conscious or habitual.”
We note that ORS 161.095(1) provides that criminal liability may be imposed when conduct includes either a voluntary act “or the omission to perform an act which the person is capable of performing.” Here, defendant’s proffered testimony was that he had not, to his knowledge, engaged in “sleep driving” prior to this incident. On remand, if the state produces evidence to the contrary, a jury could conclude that defendant’s failure to take adequate precautions was an omission to perform an act defendant is capable of performing under ORS 161.095(1) and, if supported by the evidence, that that failure to act led to the driving.
Sleepwalking disorder has been described as a condition that is distinct from the effects of intoxication. See DSM-IV-TR at 587-88 (“Sleepwalking Disorder should not be diagnosed if the behavior is due to the direct physiological effects of a substance (e.g., a drug of abuse, a medication) or a general medical condition * ** *.”). While sleepwalking can be induced by substances or medications, such a condition is diagnosed separately under the DSM-IV-TR as “Substance-Induced Sleep Disorder.” Id. at 591.
Based on our disposition, we do not find it necessary to reach defendant’s additional arguments on appeal.
Article VII (Amended), section 3, of the Oregon Constitution provides, in part:
“If the supreme court shall be of opinion * * * that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial[.]”