Though seemingly a simple defense, intoxication oftentimes trips up unsuspecting defendants.

Donald R. Barthel

The $64,000 question is: How difficult a defense is it to plead successfully?

The answer: So much so that it just may drive you to the bottle. Indeed, the defendant recently learned this the hard way in Griffith v. Salute Mission Critical.

From the defense perspective, the facts in Griffith seemed favorable:

• The decedent was killed by a tow truck while crossing a dark road on foot.
• Although the dark road seemed to be a bit of a problem, the defense argued quite convincingly that the death was barred by the intoxication defense, per Labor Code 3600(a)(4).
• “Convincingly” is an important word in this context: The intoxication defense is an affirmative defense and, thus, the burden of proof rests with the defendant.

Good news! The defense moved quickly and obtained a toxicology report. Positive? You bet: PCP, THC and booze. Doesn’t get more “positive” than that. And the facts even got better: The QME confirmed the report’s findings.

What happened to the defense? It might as well have been run over, too.

The Workers' Compensation Appeals Board reviewed the rules pertaining to an intoxication defense, reminding us that a two-prong test must be proven:

• Intoxication at the time of the accident.
• Intoxication was the proximate cause of the accident.

Didn’t the defendant do this? After all, objective tests demonstrated decedent’s blood was so filthy that they found stems, edibles and a fifth of whiskey floating in there. (Only a slight exaggeration.) Thus, as for the first requirement, the combination of the toxicology report and QME opinion would seem to have gone a long way.

The WCAB ruled against defendant’s evidence of the first prong, finding there was “no substantial evidence” that decedent was intoxicated … at the time of the accident.” As stated by the WCJ:

“Also absent from the record is any evidence suggesting the applicant appeared to have been intoxicated at the time of the accident …

“There is no evidence … that the applicant acted in a manner prior to the accident that would cause an observer to conclude he was impaired, intoxicated or under the influence of alcohol or controlled substances. Because he was at the end of a 12-hour shift, he may well have been fatigued.”

Witnesses needed

In short, there may be objective evidence of you drowning in booze and drugs, but if there’s no subjective report from an eyewitness, the defense will likely lose. From a defense perspective, one piece of evidence that may be particularly helpful would be testimony of a police officer to the effect that he saw stumbling and heard slurring. (Such evidence is, of course, particularly difficult to collect when dealing with a decedent.)

Turning to the second prong, even if intoxication had been demonstrated, there was insufficient evidence of causation. Did decedent drunkenly trip over his own feet and fall under the truck, or did the driver simply not see the departed because there were no street lights?

The QME’s input was also determined to be lacking. Although the doctor confirmed the presence of drugs and alcohol via the toxicology report, he could not retrospectively prove active impairment at the exact moment of the accident without corroborating evidence.

The WCAB found it was even possible that the death occurred because decedent was engaged in a protected “personal comfort” at the time. (The WCAB gives no hint as to what that “personal comfort” may have been, and thus, we are left to our imaginations regarding which, if any, biological need(s) the WCAB had in mind.)

Conclusion

Want to rely on the disfavored intoxication defense? Make sure your evidence demonstrates actual intoxication at the time of the accident and that the demonstrable intoxication actually caused the injury. AME/QME opinions and toxicology reports are helpful. However, they are only a beginning. Additional evidence, hopefully consisting of subject eyewitness testimony at the very least, may be sufficient to win the day.

Donald R. Barthel is a founding partner of Bradford and Barthel and is based in the firm’s Sacramento office. This entry from Bradford & Barthel's blog appears with permission.