COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Haley and Alston Argued at Alexandria, Virginia
DEAN THOMAS BRADLEY MEMORANDUM OPINION * BY v. Record No. 1443-08-4 JUDGE ROSSIE D. ALSTON, JR. AUGUST 4, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
J. Burkhardt Beale (Boone Beale, on brief), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Dean Thomas Bradley (“appellant”) appeals his conviction of driving while intoxicated,
in violation of Code § 18.2-266. Appellant asserts that he was unconscious due to the ingestion
of prescription medication at the time of the offense. Appellant presents two questions on
appeal: (1) Can a defendant be convicted of driving under the influence of alcohol when in a
state of unconsciousness?; and (2) Is someone guilty of driving under the influence of alcohol if
taking a medication puts them in a state of unconsciousness where that individual is considered
to be sleepwalking or “sleep driving?” For the reasons that follow, we affirm the decision of the
trial court.
I. BACKGROUND
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Therefore, we must
* Pursuant to Code § 17.1413, this opinion is not designated for publication. “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true
all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn
therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and
citation omitted). So viewed, the evidence was as follows.
On April 28, 2007, appellant drove his vehicle into a 20-foot light pole on the I-66
westbound ramp to the Fairfax County Parkway in Fairfax County shortly before 11:00 p.m.
Trooper W. Paul was dispatched to the scene. Trooper Paul questioned appellant regarding his
alcohol and medication consumption, and appellant indicated that he had ingested Xanax and
Ambien at 11:00 p.m. and drank a Yuengling beer at 11:00 a.m. that day. Appellant indicated
that he had left his home to purchase cigarettes. After appellant failed three field sobriety tests,
Trooper Paul arrested him for driving while intoxicated. Blood alcohol analysis tests indicated
that appellant had a blood alcohol level of .21 and that appellant had Ambien in his system.
At trial, appellant testified that he had been prescribed Ambien as a sleep aid. He further
stated that on the day of the offense he drank five 12-ounce beers and approximately half a bottle
of wine the afternoon of the offense. When cross-examined by the Commonwealth, appellant
stated that at a court proceeding in the Fairfax County General District Court, he may have
testified that he had consumed alcohol between 7:00 p.m. and 9:00 p.m. He asserted that his
statement made in circuit court, that he had consumed alcohol between 2:00 p.m. and 5:00 p.m.,
was the correct time frame of his consumption of alcoholic beverages.
Appellant testified that at the time of the accident, he was unconscious. He claimed that
the last memory he had prior to the accident was lying down in his bed to go to sleep at
11:00 p.m. In fact, appellant stated that he did not remember taking Ambien the day of the
offense until his memory was refreshed by the blood test results, which showed Ambien in his
system. Finally, appellant stated that the day of the accident was the first time he had ingested
-2- the medication, and on that day he had no prior knowledge of its side effects and was not aware
of how it would interact with alcohol.
At trial, the trial court qualified Richard J. McGarry as an expert in the fields of
toxicology, pharmacy, and pharmacology. McGarry testified that an undesired side effect of
Ambien is the performance of what appear to be conscious acts by individuals in a state of
unconsciousness. He stated that reports showed that individuals taking prescribed doses of sleep
medication such as Ambien have been known to perform household chores such as ironing
clothes, while in a state of unconsciousness. These individuals were effectively sleepwalking.
At trial, appellant raised the defense of involuntary intoxication, claiming that he was in a
state of unconsciousness as a result of taking the Ambien and that he was essentially
sleepwalking when he crashed his vehicle. At the conclusion of the presentation of the evidence,
the trial court found appellant guilty of driving while intoxicated. The trial court did not find that
the Commonwealth had met its burden of proof that the blood alcohol level was higher than .20;
however, the trial court did find that the appellant’s blood alcohol level was higher than .15
based on the evidence presented. In so finding, the trial judge did not make a factual
determination as to whether appellant was in a state of unconsciousness at the time of driving his
vehicle, nor did the trial judge comment on the unconsciousness defense raised by the appellant.
This appeal followed.
II. ANALYSIS
Appellant raises two issues on appeal: (1) Can a defendant be convicted of driving under
the influence of alcohol when in a state of unconsciousness?; and (2) Is someone guilty of
driving under the influence of alcohol if taking a medication puts them in a state of
unconsciousness where that individual is considered to be sleepwalking or “sleep driving?”
Upon consideration of the arguments made before the trial court, the parties’ briefs, and oral
-3- arguments, it is clear to this Court that appellant’s first question is essentially whether appellant
can be found guilty of driving under the influence of alcohol if he was in a state of
unconsciousness predicated upon sleepwalking at the time of the offense.
A. Unconsciousness Defense
“Unconsciousness” is a “‘state of mind of persons of sound mind suffering from some
voluntary or involuntary agency rendering them unaware of their acts.’” Riley v.
Commonwealth, 277 Va. 467, 479, 675 S.E.2d 168, 175 (2009) (quoting Greenfield v.
Commonwealth, 214 Va. 710, 714, 204 S.E.2d 414, 417 (1974)). When the unconsciousness is
not self-induced, it is a complete defense to a crime. See id. (citing Greenfield, 214 Va. at 714,
204 S.E.2d at 417 (“Where not self-induced, unconsciousness is a complete defense to a criminal
homicide.”)). “Voluntary intoxication, however, is generally not an excuse for any crime.” Id.
(citing Swisher v. Commonwealth, 256 Va. 471, 488, 506 S.E.2d 763, 772 (1998)).
“When asserting an affirmative defense, . . . the burden is on the defendant to present
evidence establishing such defense to the satisfaction of the fact finder.” Id. (citing Shifflett v.
Commonwealth, 221 Va. 760, 769, 274 S.E.2d 305, 310 (1981)) (other citations omitted). In the
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COURT OF APPEALS OF VIRGINIA
Present: Judges Humphreys, Haley and Alston Argued at Alexandria, Virginia
DEAN THOMAS BRADLEY MEMORANDUM OPINION * BY v. Record No. 1443-08-4 JUDGE ROSSIE D. ALSTON, JR. AUGUST 4, 2009 COMMONWEALTH OF VIRGINIA
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY Robert J. Smith, Judge
J. Burkhardt Beale (Boone Beale, on brief), for appellant.
Rosemary V. Bourne, Assistant Attorney General (Robert F. McDonnell, Attorney General, on brief), for appellee.
Dean Thomas Bradley (“appellant”) appeals his conviction of driving while intoxicated,
in violation of Code § 18.2-266. Appellant asserts that he was unconscious due to the ingestion
of prescription medication at the time of the offense. Appellant presents two questions on
appeal: (1) Can a defendant be convicted of driving under the influence of alcohol when in a
state of unconsciousness?; and (2) Is someone guilty of driving under the influence of alcohol if
taking a medication puts them in a state of unconsciousness where that individual is considered
to be sleepwalking or “sleep driving?” For the reasons that follow, we affirm the decision of the
trial court.
I. BACKGROUND
On appeal, we review the evidence in the “light most favorable” to the Commonwealth.
Commonwealth v. Hudson, 265 Va. 505, 514, 578 S.E.2d 781, 786 (2003). Therefore, we must
* Pursuant to Code § 17.1413, this opinion is not designated for publication. “discard the evidence of the accused in conflict with that of the Commonwealth, and regard as true
all the credible evidence favorable to the Commonwealth and all fair inferences to be drawn
therefrom.” Parks v. Commonwealth, 221 Va. 492, 498, 270 S.E.2d 755, 759 (1980) (emphasis and
citation omitted). So viewed, the evidence was as follows.
On April 28, 2007, appellant drove his vehicle into a 20-foot light pole on the I-66
westbound ramp to the Fairfax County Parkway in Fairfax County shortly before 11:00 p.m.
Trooper W. Paul was dispatched to the scene. Trooper Paul questioned appellant regarding his
alcohol and medication consumption, and appellant indicated that he had ingested Xanax and
Ambien at 11:00 p.m. and drank a Yuengling beer at 11:00 a.m. that day. Appellant indicated
that he had left his home to purchase cigarettes. After appellant failed three field sobriety tests,
Trooper Paul arrested him for driving while intoxicated. Blood alcohol analysis tests indicated
that appellant had a blood alcohol level of .21 and that appellant had Ambien in his system.
At trial, appellant testified that he had been prescribed Ambien as a sleep aid. He further
stated that on the day of the offense he drank five 12-ounce beers and approximately half a bottle
of wine the afternoon of the offense. When cross-examined by the Commonwealth, appellant
stated that at a court proceeding in the Fairfax County General District Court, he may have
testified that he had consumed alcohol between 7:00 p.m. and 9:00 p.m. He asserted that his
statement made in circuit court, that he had consumed alcohol between 2:00 p.m. and 5:00 p.m.,
was the correct time frame of his consumption of alcoholic beverages.
Appellant testified that at the time of the accident, he was unconscious. He claimed that
the last memory he had prior to the accident was lying down in his bed to go to sleep at
11:00 p.m. In fact, appellant stated that he did not remember taking Ambien the day of the
offense until his memory was refreshed by the blood test results, which showed Ambien in his
system. Finally, appellant stated that the day of the accident was the first time he had ingested
-2- the medication, and on that day he had no prior knowledge of its side effects and was not aware
of how it would interact with alcohol.
At trial, the trial court qualified Richard J. McGarry as an expert in the fields of
toxicology, pharmacy, and pharmacology. McGarry testified that an undesired side effect of
Ambien is the performance of what appear to be conscious acts by individuals in a state of
unconsciousness. He stated that reports showed that individuals taking prescribed doses of sleep
medication such as Ambien have been known to perform household chores such as ironing
clothes, while in a state of unconsciousness. These individuals were effectively sleepwalking.
At trial, appellant raised the defense of involuntary intoxication, claiming that he was in a
state of unconsciousness as a result of taking the Ambien and that he was essentially
sleepwalking when he crashed his vehicle. At the conclusion of the presentation of the evidence,
the trial court found appellant guilty of driving while intoxicated. The trial court did not find that
the Commonwealth had met its burden of proof that the blood alcohol level was higher than .20;
however, the trial court did find that the appellant’s blood alcohol level was higher than .15
based on the evidence presented. In so finding, the trial judge did not make a factual
determination as to whether appellant was in a state of unconsciousness at the time of driving his
vehicle, nor did the trial judge comment on the unconsciousness defense raised by the appellant.
This appeal followed.
II. ANALYSIS
Appellant raises two issues on appeal: (1) Can a defendant be convicted of driving under
the influence of alcohol when in a state of unconsciousness?; and (2) Is someone guilty of
driving under the influence of alcohol if taking a medication puts them in a state of
unconsciousness where that individual is considered to be sleepwalking or “sleep driving?”
Upon consideration of the arguments made before the trial court, the parties’ briefs, and oral
-3- arguments, it is clear to this Court that appellant’s first question is essentially whether appellant
can be found guilty of driving under the influence of alcohol if he was in a state of
unconsciousness predicated upon sleepwalking at the time of the offense.
A. Unconsciousness Defense
“Unconsciousness” is a “‘state of mind of persons of sound mind suffering from some
voluntary or involuntary agency rendering them unaware of their acts.’” Riley v.
Commonwealth, 277 Va. 467, 479, 675 S.E.2d 168, 175 (2009) (quoting Greenfield v.
Commonwealth, 214 Va. 710, 714, 204 S.E.2d 414, 417 (1974)). When the unconsciousness is
not self-induced, it is a complete defense to a crime. See id. (citing Greenfield, 214 Va. at 714,
204 S.E.2d at 417 (“Where not self-induced, unconsciousness is a complete defense to a criminal
homicide.”)). “Voluntary intoxication, however, is generally not an excuse for any crime.” Id.
(citing Swisher v. Commonwealth, 256 Va. 471, 488, 506 S.E.2d 763, 772 (1998)).
“When asserting an affirmative defense, . . . the burden is on the defendant to present
evidence establishing such defense to the satisfaction of the fact finder.” Id. (citing Shifflett v.
Commonwealth, 221 Va. 760, 769, 274 S.E.2d 305, 310 (1981)) (other citations omitted). In the
instant case, appellant’s involuntary unconsciousness defense was predicated on his assertion
that he was in fact sleepwalking due to the ingestion of a sleep aid when the offense occurred.
Appellant thus bore the burden of presenting evidence to the satisfaction of the fact finder, that
he was unconscious during the commission of the offense. See id.
Appellant testified at trial, and avers on appeal, that he was in fact unconscious at the
time of the accident. Further, appellant argues that he showed sufficient evidence that his
unconsciousness was involuntary by showing that the day of the offense marked the first time he
took Ambien, he was not informed of its side effects, and he was not aware of the effects of
mixing alcohol with the medication.
-4- Appellant asserts that the trial judge did not consider his unconsciousness defense
because the trial judge did not make a factual determination as to whether appellant was
sleepwalking when he drove his vehicle, nor did the trial judge comment on the unconsciousness
defense raised by the appellant. Appellant asks this Court to remand the case to the lower court
for a determination of whether appellant was sleepwalking. We decline this invitation.
We can infer from the record and appellant’s conviction that the trial judge rejected
appellant’s involuntary unconsciousness defense. See Parks, 221 Va. at 498, 270 S.E.2d at 759.
“The credibility of the witnesses and the weight accorded the evidence are matters solely for the
fact finder who has the opportunity to see and hear that evidence as it is presented.” Sandoval v.
Commonwealth, 20 Va. App. 133, 138, 455 S.E.2d 730, 732 (1995). The trial judge was in a
position to evaluate appellant’s credibility, and his decision to reject appellant’s assertion that he
was unconscious at the time of the offense is supported by the record. We will not disturb the
judge’s factual finding on appeal unless it is plainly wrong or without evidence to support it.
Schneider v. Commonwealth, 230 Va. 379, 382, 337 S.E.2d 735, 736 (1985) (citing Evans v.
Commonwealth, 215 Va. 609, 613, 212 S.E.2d 268, 271 (1975); Granberry v. Commonwealth,
184 Va. 674, 678, 36 S.E.2d 547, 548 (1946)).
Here, there were numerous discrepancies in appellant’s testimony. For instance,
appellant testified at trial that the last thing he remembered prior to the accident was going to
bed; however, appellant told Trooper Paul that he had been driving his car to buy cigarettes at the
time of the accident. Also at trial, appellant stated that he did not remember ingesting Ambien
until his memory was refreshed when he was provided the independent blood analysis results.
This testimony is contradicted by appellant’s statement to Trooper Paul at the scene of the
accident, in which he stated that he had consumed an Ambien that night. Finally, appellant made
numerous conflicting statements about his alcohol consumption on the date of the offense.
-5- Again, we can infer from the trial court’s ruling that the trial court did not find appellant’s
testimony that he was unconscious to be credible. As this finding is not plainly wrong or without
evidence to support it, we will not disturb it on appeal. Thus, as the factual predicate required
for the unconsciousness defense was not satisfied, the trial court did not err in rejecting
appellant’s involuntary unconsciousness defense.
B. Unconsciousness through Ingestion of Medication Defense
The second issue raised by the appellant is whether an individual is guilty of driving
under the influence of alcohol if taking a medication puts them in a state of unconsciousness
where that individual is considered to be sleepwalking or “sleep driving.”
This issue is essentially subsumed by our analysis of the first issue and is resolved by our
determination that the trial court made no factual finding that appellant was unconscious at the
time of the offense. Without a finding that appellant was unconscious at the time of the offense,
we need not delve into the question of whether unconsciousness specifically caused by the
ingestion of prescription medication constitutes a defense to driving while intoxicated. 1
III. CONCLUSION
Accordingly, and contrary to appellant’s argument on appeal, we cannot say the trial
court erred in rejecting appellant’s involuntary unconsciousness defense. Because the trial court
1 The Virginia Supreme Court recently decided Riley, 277 Va. 467, 675 S.E.2d 168, a case with facts analogous to the instant case. Like the Supreme Court in Riley,
[w]e do not decide today whether a person who ingests medication in accordance with a doctor’s or a manufacturer’s instructions and then experiences some type of reaction, which could not have reasonably been anticipated and which renders that person unconscious or impaired, loses the unconsciousness defense or the intoxication defense because that person voluntarily ingested the medication.
277 Va. at 482 n.10, 675 S.E.2d at 177 n.10.
-6- did not make a factual finding that appellant was sleepwalking at the time of the accident, the
factual predicate underpinning his involuntary unconsciousness defense was missing. Riley, 277
Va. at 481, 675 S.E.2d at 176. At the conclusion of the presentation of evidence, the trial court
found that proof beyond a reasonable doubt existed that defendant was driving under the
influence, with a blood alcohol level greater than .15, but less than .20. Because the trial court
did not err in rejecting appellant’s affirmative defense, and there is a sufficient independent basis
to find that appellant was intoxicated while driving, we affirm appellant’s conviction.
Affirmed.
-7-