Date Rape Drugs and DUI in Montana

In general, criminal acts require two separate elements: 1) intention; and 2) action. Commiting an action against your will, or involuntarily, is usually not criminal. In Montana, this is codified at Section 45-2-202, MCA, which provides:

A material element of every offense is a voluntary act, which includes an omission to perform a duty that the law imposes on the offender and that the offender is physically capable of performing, except for deliberate homicide under 45–5–102(1)(b) for which there must be a voluntary act only as to the underlying felony. Possession is a voluntary act if the offender knowingly procured or received the thing possessed or was aware of the offender’s control of the thing for a sufficient time to have been able to terminate control.

For most criminal offenses, it is a defense that the act was done involuntarily, such as during a seizure. However, there is a class of offenses where this doesn’t apply. Absolute liability offenses require no showing of intent. In Montana, DUI is an absolute liability offense. Section 61-8-401(7) (“Absolute liability … will be imposed for a violation of this section.”). This means that it is no defense to a charge of DUI that you didn’t intend to drive drunk.

At least mostly.

In City of Missoula v. Paffhausen, the Montana Supreme Court examined the defense of automatism for the first time. Paffhausen argued that she had been given a date rape drug that caused her impairment.
Date Rape Drug and DUIPaffhuasen acknowledged that DUI is an absolute liability offense, and that she met two of the three elements of DUI: on a public street and impaired. However, she maintained, the date rape drug prevented her from voluntarily driving or being in actual physical control.The City filed a motion to prevent her from using the defense, arguing that it can only be asserted when a defendant’s mental state constitutes an element of the charged offense. Since DUI is absolute liability, the defense should not be available. The city court agreed and Paffhausen appealed all the way to the Montana Supreme Court.

After evaluating past Montana DUI caselaw in State v. Leprowse, the Montana Supreme Court held that absolute liability does not necessarily mean absolute liability. It found that allowing the automatism defense would meet certain other policies embodied in the Montana Code. The majority concluded that Paffhausen was entitled to raise automatism as an affirmative defense based on her claim of being subjected to a date rape drug. In order to prove her automatism defense, the Court went on, she will need to prove by admissible evidence that she did not act voluntarily when she drove her vehicle. Once she offers admissible evidence to this effect, it will be the State’s burden to prove (beyond a reasonable doubt) that she did act voluntarily.

City of Missoula v. Paffhausen, 2012 MT 265