      IN THE COURT OF APPEALS OF THE STATE OF WASHINGTON

STATE OF WASHINGTON,
                                                No. 66622-3-1
                                                                              US
                    Respondent,                                               3S
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CHRISTOPHER MICHAEL DAILEY,                     PUBLISHED OPINION
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                    Appellant.                  FILED: May 13, 2013                XT




      Becker, J. — Christopher Dailey appeals his conviction for vehicular

assault by driving under the influence. He contends that beyond the statutory

elements of the crime, there is an implied element of knowledge where the driver

is alleged to be under the influence of prescription drugs. The authority Dailey

relies on does not establish an implied element. We affirm the conviction.

      According to trial testimony, Mary Ann Bastrom was driving in Seattle on

October 1, 2009, when her car was struck forcefully from behind. Bastrom's

daughter who sat in the passenger seat of the car suffered a fractured vertebra.
The vehicle that struck Bastrom's car was driven by Christopher Dailey. His car

continued across the road and hit a telephone pole.

      When Officer Brian Shaw of the Seattle Police Department arrived on the

scene, he found Dailey walking around. Dailey told Shaw that he was "fine" but
No. 66622-3-1/2



that he had "blacked out." Shaw observed Dailey slurring his words and having

difficulty following directions. Dailey told Shaw that he had not drunk alcohol but

that he had taken prescription medications. Shaw asked to have a drug

recognition expert sent to the scene to evaluate Dailey.

       Trooper Lisa Mosely of the Washington State Patrol responded to this

request. She evaluated Dailey and found him sluggish, disoriented, and unable

to maintain his balance. She observed that his eyes were watery and bloodshot.

She performed a horizontal gaze nystagmus test, which indicated Dailey was

impaired. Dailey told Mosely that he was taking three prescription medications

because he was recovering from significant burn injuries. Dailey also told her he

had taken "meth," but not on the day of the accident.

       Mosely placed Dailey under arrest for driving under the influence. She

searched Dailey and located prescription drug bottles in his pocket. Mosely

wrote down the names of the prescribed drugs and verified that they were

prescriptions for Dailey. Then she gave the bottles back to Dailey.

       The State charged Dailey with vehicular assault under RCW 46.61.522(1).

This statute has three alternatives. The State must prove that the defendant's

driving proximately caused substantial bodily harm to another person, and at the

time, the defendant (a) drove the vehicle in a reckless manner; or (b) was under

the influence of drugs; or (c) drove the vehicle with a disregard for the safety of

others. The to-convict instruction set forth all three alternatives.

       At trial, the State introduced evidence that two of the drugs prescribed for
   No. 66622-3-1/3


  Dailey, one for pain and the other apsychiatric medication, induce drowsiness.
  There was testimony that usually prescription bottles containing soporific
  medications bear warnings that they cause sleepiness, but there was no
  testimony that the bottles found in Dailey's pockets had such warnings. Dailey
  did not testify.

         The jury convicted Dailey of vehicular assault and indicated by special
 interrogatory that the conviction was based on the second alternative, driving
 under the influence. Dailey was sentenced at the top of the standard range to 84
 months. He now appeals and argues that his conviction must be reversed
 because both the information and the to-convict instruction omitted an essential
 element of the offense.

       All essential elements of a crime, statutory or otherwise, must be included
 in acharging document to afford notice to an accused of the nature and cause of
the accusation against him. State v. Kiorsvik 117Wn.2d93, 101-02, 812 P.2d
86 (1991). Each element of a crime must also appear in the "to convict-
instruction because it is the yardstick the jury uses to measure the evidence and
determine guilt. State v. Mills. 154 Wn.2d 1, 6-7, 109 P.3d 415 (2005).
       The crime of vehicular assault by driving under the influence contains four
statutory elements: (1) the defendant operated or drove avehicle, (2) while
under the influence of adrug, (3) causing substantial bodily injury to another, and
(4) this act occurred in the State of Washington. RCW 46.61.522(1); see also
11A Washington Practice: Washington Pattern Jury Instructions: Criminal
No. 66622-3-1/4



91.02 (3d ed. 2008) (restating same elements). Dailey does not dispute that the

amended information and the "to convict" instruction included these statutory

elements.


       Dailey's argument that knowledge is an implied additional element rests

entirely on his reading of Kaiser v. Suburban Transportation System, 65 Wn.2d

461, 398 P.2d 14, 401 P.2d 350 (1965). In Kaiser, a civil case, a bus passenger

sustained injuries when the bus driver lost consciousness and hit a telephone

pole. Kaiser, 65 Wn.2d at 463. The driver testified that he had taken his first

dose of a new medical prescription on the morning of the accident, and his

physician had not warned him about side effects. Kaiser. 65 Wn.2d at 463. The

record included expert testimony that a warning should have been given to the

driver because 20 percent of people taking the drug experience drowsiness as a

side effect. Kaiser. 65 Wn.2d at 464. The plaintiff sued the bus driver and the

physician. The trial court dismissed the physician and directed a verdict against

the bus driver. The Supreme Court reversed both rulings and granted a new

trial. As to the driver, the court noted that a directed verdict is appropriate "only

when the court can say that there is no evidence at all to support the party

opposing the motion." Kaiser. 65 Wn.2d at 463. The court held that the driver's

negligence presented a jury question. Kaiser, 65 Wn.2d at 465.
No. 66622-3-1/5



       The passenger had asked the Supreme Court to hold that the bus driver

was negligent as a matter of law because he violated former RCW 46.56.010,1 a

now-repealed provision that made it unlawful to operate a vehicle under the

influence of drugs. The court rejected this argument, holding there could be no

criminal culpability under the statute for the bus driver unless he knew the

medication caused drowsiness:


       We do not think that one who innocently takes a pill, which is
       prescribed by a doctor, can be convicted of a crime under this
       statute and thus be negligent per se unless he has knowledge of
       the pill's harmful qualities. To hold otherwise would be to punish
       one who is not culpable.

Kaiser, 65 Wn.2d at 466. Viewed in the light most favorable to the driver, the

evidence showed he had no knowledge of the pill's side effects. If so, his

condition was involuntary. Involuntariness "negatived the mens rea and

established the driver's innocence." Kaiser, 65 Wn.2d at 468.

       The State argues that if Kaiser holds there is an implied mens rea element

in the statute, the holding is inapposite because the crime of driving under the

influence has been recodified and repeatedly redefined since 1965 when Kaiser




       1 Former RCW 46.56.010 (1961) provided, in pertinent part, that "It is unlawful for
any person who is . . . under the influence of any . . . drug to a degree which renders him
incapable of safely driving a vehicle to drive a vehicle upon the public highways. The
fact that any person charged with a violation of this section is or has been entitled to use
such drug under the laws of this state shall not constitute a defense against any charge
of violating this section." Laws of 1961, ch. 12, §46.56.010. This law was repealed in
1965. Laws OF 1965, Ex. Sess., ch. 155, §91.
No. 66622-3-1/6



was decided.2 The State asks us to decide as a matter of first impression that

the present-day statute, RCW 46.61.502(1), was intended by the legislature to

create a strict liability crime of driving under the influence, with no mens rea

element under any circumstances. Such an analysis would entail consideration

of factors set forth in State v. Bash, 130 Wn.2d 594, 605-06, 925 P.2d 978

(1996).

       Dailey's appeal does not warrant a ruling so broad as the State envisions.

For one thing, it is not clear that the definition of the offense today differs

materially from the definition the court considered in Kaiser. The former statute

contained no explicit mens rea element. And it stated, just as the current statute

does, that it was not a defense that the driver was "entitled to use" the

intoxicating drug. RCW 46.61.502(2); former RCW 46.56.010 (1961) (Laws of

1961, ch. 12.) So, ifthe Kaiser court determined that under the previous statute

a defendant's lack of knowledge of the side effects of prescription drugs was

relevant to the crime of driving under the influence of prescription drugs, this

court is not in a position to declare that the modern statute makes such

knowledge irrelevant.




          2
              See LAWS OF 2011, ch. 293, § 2; Laws OF 2008, ch. 282, § 20; LAWS OF 2006,
ch. 73, § 1; LAWS OF 1998, ch. 213, § 3; LAWS OF 1994, ch. 275, § 2; LAWS OF 1993, ch.
328, § 1; LAWS OF 1987, ch. 373, § 2; LAWS OF 1986, ch. 153, § 2; LAWS OF 1979, Ex.
Sess.,ch. 176, §1 (amending RCW46.61.602); see ajso Laws OF 2001, ch. 300, §1;
Laws OF 1996, ch. 199, § 8; LAWS of 1983, ch. 164, § 2 (amending RCW 46.61.522).
No. 66622-3-1/7



       We nevertheless reject Dailey's appeal, but on a narrower ground. The

question before us is whether mens rea is an implied element, not whether

evidence of mens rea is relevant. To the extent Kaiser suggests that knowledge

of the soporific qualities of a prescription drug is an implied element, we regard

such a suggestion as dicta rather than as a holding that controls the outcome in

the present case. The reason is that the record of the trial in Kaiser already

contained affirmative evidence of the driver's lack of knowledge about the

medication he took. Therefore, the court in Kaiser did not need to consider, let

alone decide, the specific issue before us here: allocating the burden of proof in

a criminal prosecution where a defendant claims a lack of knowledge about the

effects of taking a prescribed medication that impaired his ability to drive. In a

Kansas case the Kaiser court quoted and relied on, the court squarely imposed

upon the defendant the burden of proving this type of ignorance as an affirmative

defense.

       The Kaiser court stated, "We find the reasoning and the rule to be

particularly well stated in the case of State v. Brown, 38 Kan. 390, 16 Pac. 259

(1888)." Kaiser, 65 Wn.2d at 466. The court quoted at length from Brown:

            ". . . General terms inflicting punishment upon 'any person'
       who might do any particular act should be construed to mean only
       such persons as act voluntarily and intelligently in the performance
       of the interdicted act. We should not suppose, in the absence of
       specific words saying so, that the legislature intended to make
       accidents and mistakes crimes. Human actions can hardly be
       considered as culpable either in law or in morals, unless an
       intelligent consent of the mind goes with the actions; and to punish
       where there is no culpability would be the most reprehensible
       tyranny. The legislature usually in enacting criminal statutes,
No. 66622-3-1/8



      enacts them in general terms so as to make them by their terms
      include all persons; and yet it is always understood that some
      persons, as idiots, insane persons, young children, etc., are not to
      be considered as coming within the provisions of the statute. It is
      always understood that the courts will construe the statute in
      accordance with the general rules of statutory construction, and
      apply the act only to such persons as the legislature really intended
      to apply it; that is, to apply the act to such persons only as should
      intelligently and voluntarily commit the acts prohibited by the
      legislature."

Kaiser, 65 Wn.2d at 467, quoting Brown. 16 P. at 260. In the sentences that

immediately follow this quoted language, the Brown court answered the question

before us and not decided in Kaiser:

              And it is generally better that the exceptions to the operation
      of the statute should not be stated in the statute itself, for, if they
      are, then it becomes necessary for the public prosecution to also
      state them in the complaint. If idiots, insane persons, children, etc.,
      are in terms excepted from the provisions of the statute, then it
      would be necessary for the public prosecutor to see that all
      informations or indictments charging the particular offense should
      substantially follow the language of the statute, and should also
      state the exceptions as a part of the description of the offense. He
      should allege that the case did not come within any of the
      exceptions, and he would also have to prove the same. But, where
      the exceptions are not stated in the statute, the complaint may
      charge the offense substantially in the language of the statute, and
      without mentioning any of the exceptions, and then, if the defendant
      claims that the case comes within any of the exceptions, he must
      prove the same as a part of his defense.

Brown, 16 P. at 260-61 (emphasis added). The Brown court allocated as an

affirmative defense to be proved by the defendant a claim that "he innocently

[drank] the liquor which intoxicates him, without having any knowledge of its

intoxicating qualities, and without having any idea that it would make him drunk."

Brown, 16 P. at 259-60.
No. 66622-3-1/9



      The Washington Supreme Court's recent decision in State v. Deer, 175

Wn.2d 725, 287 P.3d 539 (2012), cert, denied. 133 S. Ct. 991 (2013), suggests

the court would similarly classify as an affirmative defense a defendant's claim

that he innocently took a prescribed drug without knowledge of its impact on his

ability to operate a motor vehicle. In Deer, the court considered whether the

State must prove volition as an element of rape of a child in the third degree.

Deer. 175 Wn.2d at 727-28. Deer argued that once she produced evidence of a

lack of a voluntary action, the State had the burden of proving volition beyond a

reasonable doubt. Deer. 175 Wn.2d at 731-32. Deer claimed she was sleeping

during several acts of intercourse and therefore could not be guilty of rape. The

court held that Deer's claim was an affirmative defense that she was required to

prove by a preponderance of the evidence:

              We must reject Deer's contention that the State is required
       to prove as an element of child rape that she was awake during the
       alleged acts. While she is entitled to argue a lack of conscious
       action, her claim is properly treatedas an affirmative defense,
       much like claims of involuntary intoxication, insanity, or unwitting
       possession. See 13B Seth A. Fine &Douglas J. Ende,
       Washington Practice: Criminal law § 3204, at 237 (2d ed. 1998)
       (observing that for crimes in which there is no mens rea
       requirement, the defense of involuntary intoxication must be proved
       by the defendant by a preponderance of the evidence).
Deer, 175 Wn.2d at 733 (emphasis added).

       Dailey's contention is similar to Deer's. He claims that the State was
required to prove, as an element ofvehicular assault committed by driving while
under the influence of prescription drugs, that he knew about the side effects of
No. 66622-3-1/10



his medication.


      Unlike the defendants in Deer or Brown. Dailey did not even produce

evidence of his lack of knowledge. Because Dailey did not attempt to present an

affirmative defense of lack of knowledge, we need not decide whether that

affirmative defense is permissible. The only question we are called on to decide

is whether knowledge is an implied element the State must prove.

      For the reasons articulated in Brown and consistent with the court's

reasoning in Deer, we reject Dailey's claim that Kaiser imposed an implied mens

rea element.

      Affirmed.




                                                Vedx&g
WE CONCUR:




  A~J.P..J.
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