(Super. Ct. No. 08F8314) APPEAL from a judgment of the Superior Court of Shasta County, Bradley L. Boeckman, Judge. Reversed.
The opinion of the court was delivered by: Butz , J.
CERTIFIED FOR PUBLICATION
Defendant Paul Ellis Wells was charged with driving under the influence (DUI) of marijuana, causing injury (Veh. Code, § 23153, subd. (a)),*fn1 and driving with a suspended license (Veh. Code, § 12500, subd. (a)). It was further alleged he had inflicted great bodily injury upon three individuals. (Pen. Code, §§ 12022.7, subd. (a), 1192.7, subd. (c)(8).) The jury found defendant guilty on both counts and found the great bodily injury allegations true. Defendant was sentenced to an aggregate term of 12 years in state prison.
On appeal, defendant alleges the trial court prejudicially and erroneously failed to instruct the jury on his defense of unconsciousness and that the instructions provided prevented the jury from considering his defense. We agree and shall reverse the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The criminal charges in this case arise from an incident on April 7, 2008, wherein defendant crossed over the double yellow lines dividing a road and struck a car in the oncoming lane, seriously injuring three people in addition to himself.
A forensic toxicologist testified at trial that marijuana has both a stimulating effect and a sedative effect. At higher levels, it is possible to cause a person to pass out. It can affect information processing, coordination, and tracking abilities (which would be the ability of a driver to keep a car in the center of a lane). Blood drawn from defendant at the hospital approximately two hours after the collision showed the presence of delta-9-tetrahydrocannabininol (delta-9-THC)--the active ingredient in marijuana that produces the effects--in the amount of 6.9 nanograms per milliliter of whole blood.
The expert stated that immediately after smoking marijuana, the level of delta-9-THC may be as high as 100 to 200 nanograms. The level decreases such that three to four hours later, it can go down to 20 nanograms. Although the level of delta-9-THC in defendant's blood would have been much higher at the time of the collision than it was when his blood was drawn, there is no reliable way to extrapolate back and estimate the level. There is also no consensus in the scientific community as to the level of delta-9-THC that causes impairment and each individual reacts differently to the substance. Based on the presence of delta-9-THC in defendant's system and "the fact that he was driving poorly," the expert believed defendant was under the influence at the time of the collision.
The parties stipulated to a witness's statement that he saw defendant's truck drift across the double yellow lines and into the oncoming traffic. Defendant did not brake or swerve. As defendant's truck went by, just prior to the collision, the witness saw that defendant's head was tilted to the right and his eyes appeared to be closed.
Defendant's father had been riding as a passenger in defendant's truck at the time of the collision. He told the responding officer that, just prior to the collision, he saw defendant "slumped over the steering wheel, at which time he yelled at his son."
Initially unaware of defendant's accident or criminal charges, defendant's doctor testified that he first treated defendant in the emergency room in January 2009 for recurring bouts of vomiting. The doctor took a history from defendant, during which defendant described an incident (which was prior to the collision) when he had passed out and was taken to the emergency room. The doctor ordered a five-hour glucose tolerance test to investigate whether there was an underlying cause for episodes of passing out. The test results showed that three hours after being given a high sugar solution to drink, defendant's blood sugar level dropped to 45--which is well below normal and certainly low enough to cause someone to pass out.
The doctor testified that the condition of low blood sugar is a lifelong condition and considered prediabetic. He could not say, however, when defendant's condition of low blood sugar started and could not say with certainty that defendant suffered from low blood sugar at the time of the collision. Since the collision, defendant had been unable to consume a regular diet due to the recurring vomiting, had lost 40 pounds, and was severely underweight. Starvation or anorexic-type symptoms can lead to low blood sugar. Although defendant's doctor had no medical history for defendant prior to January 2009, based on defendant's glucose test results and symptoms, the doctor did believe that defendant's low blood sugar condition had existed for a "substantial period of time."
In November 2009, defendant's doctor ordered a "HIDA scan" to test defendant's gallbladder function. However, defendant also had low blood pressure and passed out during the IV preparation for the HIDA scan. He did not complete the test. The doctor explained that it is very likely that when one passes out from low blood sugar, the person will also have low blood pressure, which can itself be a cause of passing out.
Defendant argued that he was not under the influence of marijuana at the time of the collision and that the reason he crossed over the double yellow lines was because he had been ...