Chicago Criminal Lawyer Blog

May 29, 2015

New Program Hopes to Keep Mentally Ill Defendants Out of Jail

by Law Offices of David L. Freidberg, P.C.

On the heels of the Chicago “Rocket Docket” program comes a new initiative from the Cook County Sheriff’s Office aimed at identifying – and getting treatment for – Cook County misdemeanor arrestees with mental health issues.

Mental Health Crisis in Cook County Jails

Cook County Sheriff Thomas J. Dart has been a proactive force in efforts to keep non-violent, mentally ill Cook County offenders out of jail, focusing his efforts instead on getting them much needed mental health treatment. The Cook County Sheriff’s website estimates that approximately 30% have some type of mental illness that is a major contributing factor to their crime. The greatest concentration of crime committed by those with a mental illness is in the south suburbs, which saw a huge increase when the Tinley Park Mental Health Center closed in 2012, which left many patients with no options for treatment or housing, leading them to petty crimes as a means of survival.

Yet for these non-violent offenders, spending time in jail while they await trial is not the answer – without services or treatment, once released these inmates will fall right back to a life of crime. Thus a vicious cycle of arrest, incarceration, and discharge continues, all at a huge cost to taxpayers.

The pilot program is housed at the Markham Courthouse and is run in partnership with Adler Community Health Services. Pre-bond detainees are screened to determine eligibility for the program based on their charge (only misdemeanor charges are considered), background and mental health needs. Appropriate detainees are referred to the judge, who has discretion to release the arrestee on his own recognizance, with the condition that they enroll in the Sheriff’s Office’s mental health clinic for regular treatment.

Opened in 2014, Sheriff Dart’s Mental Health Clinic provides therapeutic services, job training and discharge planning for Cook County Jail inmates with mental illness. The hope is that with proper treatment and medication, and skills that can help them secure a job, these arrestees will be able to become productive members of society and break the cycle of incarceration, while at the same time saving taxpayers the high cost of incarceration and leaving the jails open for violent offenders.

This program is promising and, if successful, will hopefully be expanded to other courthouses throughout Cook County. Many Chicago residents suffering from mental illness lack the mental capacity to stand trial, as they do not understand the nature of their actions. But there are many that fall between the cracks – they understand the nature of the proceedings, and that their actions are wrong, but their mental illness makes them unable to control themselves, or to make choices that could steer them away from theft, trespass and the other petty misdemeanor crimes they are often arrested for committing. But with the right combination of treatment, medication, job training and life planning, they can get their mental illness under control before they progress to committing violent crimes that will land them in prison and have no chance of treatment.

May 27, 2015

Accelerated Resolution Court Act Seek to Get Cook County Inmates Out of Jail

by Law Offices of David L. Freidberg, P.C.

The Illinois Senate unanimously passed a bill that would move petty, non-violent offenders out of the Cook County jail system on an expedited basis. The bill, which creates a pilot program in the Cook County Jail, is aimed at releasing low-level offenders of crimes such as retail theft and criminal trespass from jail within 30 days of booking. It now moves on to the House.

Chicago “Rocket Docket” Bill

The Accelerated Resolution Court Act, or the “Rocket Docket” bill, was pressed by Cook County Sheriff Thomas J. Dart as a means of relieving the high taxpayer cost associated with incarceration and minimizing the inequity faced by defendants charged with petty, non-violent crimes. Often times, low-level offenders spend an outrageous amount of time in jail for their crimes not because they pose a risk to society, but because they cannot afford to post bond.

To highlight the need, Sheriff Dart posts weekly case studies that highlight the amount of time low-level offenders spend in jail awaiting trial, the charged crime and the amount of money it costs taxpayers to incarcerate the defendant. The studies are truly outrageous:

A homeless woman spent 135 days in jail, at a cost of $19,305, for stealing two plums and three candy bars;
A homeless woman, who suffers from mental illness, is repeatedly arrested for criminal trespass at public places, mainly after she begins shouting obscenities at patrons; her most recent arrest, for trespass at O’Hare, netted her 51 days in jail at a cost of $7,293 to taxpayers.

There are at least a dozen other such studies, most involving homeless people with mental illness and/or alcohol problems. They are repeatedly placed in jail for these non-violent offenses – many of which are committed due to a need for food or shelter for themselves. They remain in jail until their case is completed, whether due to dismissal, plea or jury trial, and then return to the streets following completion of their sentence without having received any assistance for their underlying issues, whether that be alcohol and drug abuse, mental illness or the lack of a place to stay. The result – they cycle right back through the system.

Accelerated Resolution of Petty Cook County Crimes

Under the bill, in order to be eligible for participation in the Accelerated Resolution Court Act, the defendant must be:

In custody 72 hours after bond was set;
Unable to post bond or ineligible to be placed on electronic home monitoring, and;
Charged with either retail theft of property valued at $300 or less or criminal trespass to property.

Defendants who have been convicted within the past 10 years of a violent crime, such as murder, rape or kidnapping, cannot participate in the program.

Cook County Sheriff’s officers refer appropriate cases to the Accelerated Resolution Court, which then has 30 days to hear the case. If the defendant’s case is not heard within 30 days of referral, he is released on his own recognizance. This does not mean that the defendant walks free. Rather, he is released from jail until the case is resolved; he can still later be tried, convicted and put back in jail. Without the program, non-violent offenders who are unable to post bond often spend more time in jail awaiting trial than the sentence that would be imposed if convicted at trial.

May 22, 2015

Cook County Woman Charged with Battery after Attacking Boyfriend in Public Restroom

by Law Offices of David L. Freidberg, P.C.

A Cook County woman was charged with domestic battery for allegedly slamming her boyfriend’s head into a public restroom following his refusal to have sex with her. She was also charged with illegal possession of prescription drugs after police saw prescription pills in her purse that had the name of another woman on the label.

Cook County Domestic Battery Charge

A charge of domestic battery is no different than a regular battery charge, other than the fact that domestic battery charges can only be brought against a defendant if the battery was committed against a family or household member or significant other.

Battery and domestic battery are Class A misdemeanors, so attempting to argue that the victim does not meet the criteria of family or household member would not be a good defense strategy, because the potential punishment if convicted is the same for either crime. The argument that the victim was not a family or household member would be relevant if this was a second charge of domestic battery; in those instances, conviction is a Class 4 felony. So trying to argue the charge down to “regular” battery based on a failure to meet the relationship criteria would be justified.

In this particular case the only viable defenses, if the facts supported them, would be self-defense or accidental. Based on the description of the incident – the alleged victim was using the urinal at the time the defendant approached him for sex – it seems unlikely the facts would support a self-defense claim.

That leaves the defense that it was unintentional. The crime of battery is committed only if action causing harm was committed “knowingly” – that is, intentionally. The woman was in a state of undress when her boyfriend rebuffed her advances; it is possible that she tripped putting her clothes back on. Or, if she was taking medication, it could have impaired her balance, causing her to fall against him. If either of these are true, it would have been her falling against him that caused him to hit his head against the wall, rather than an intentional action on her part.

Cook County Possession of Prescription Drugs Charges

Illegal possession of a prescription drugs is a felony, and conviction has serious consequences. The first line of defense is to prove that you had a prescription for the drug. The second is to verify that the drug found in your possession is in fact listed as a controlled substance under the Illinois Controlled Substances Act.

If you do not have a prescription, you must prove that the drugs were not truly in your possession. In this case, the police found the drugs when the woman pulled them out of her purse and placed them on the table. The pill container had another woman’s name on it. That alone is not enough to prove illegal possession. Perhaps the defendant had just picked up the prescription for a friend or family member and was planning to deliver it the next day.

Or perhaps the name on the bottle is the woman’s legal name, and she uses another for everyday life. Or maybe the opposite is true – not wanting her prescription history to get out in the event the pharmacy computers are hacked, perhaps her doctor writes the prescription under a different name. It may also be possible that the drugs inside pill bottle were prescribed to the defendant, but she was using an old pill bottle that belonged to somebody else to hold them. The mere fact that the defendant had possession of a pill bottle that did not have her name on it is not enough, on its own, to prove that she was in illegal possession of a controlled substance.

May 20, 2015

Forensic Podiatrists Examine Crime Scene Footprints to Identify a Suspect

by Law Offices of David L. Freidberg, P.C.

Often a criminal defense case will rely on the use of expert testimony. Whether it is DNA evidence, blood splatter, fingerprint or hair analysis, this evidence must be tested and interpreted, and the results relayed to the jury by an expert in the field. Much of the forensic evidence used in criminal trials is well accepted theory. The prosecutor and defense attorney may disagree on whether the fingerprint analysis points to the defendant, or whether the results of DNA testing pinpoint the defendant as the suspect, but they do not question the science behind this evidence or its ability to be used to identify a suspect.

But what happens when a new type of science comes along, such as say, forensic podiatry?

Use of Expert Testimony in Chicago Criminal Cases

Forensic evidence, when available, and questioning of the forensic expert, can often mean the difference between conviction and acquittal. If the evidence doesn’t point to the defendant as the one who committed the crime, the verdict is often (though not always) an acquittal. Likewise, if the expert can be debunked on the stand, whether due to a history of inaccurate analysis, improper credentials or because the other side’s expert comes across as more knowledgeable, the verdict can be swayed in favor of the side with the most convincing expert.

Not just anybody can be deemed an expert with the ability to testify in court regarding a particular subject. Some experts are recognized on a local level, and neither side will object to their being brought to the stand to testify as an expert in their particular field. In order to be accepted as an expert, the prosecution (or defense, depending on who is calling the expert) must show to the court that he has the necessary “knowledge, skill, experience, training, or education” regarding the subject matter of which he claims to be an expert. This proof is usually accomplished by the expert’s educational background, work in the field, publications, number of prior cases in which he has served as an expert and reputation in the field.

If, however, the witness claims to be an expert in a field that is new – such as forensic podiatry – the requirements to be admitted as an expert are a bit harder to prove. In addition to proving the necessary knowledge in his field, the prosecution or defense attorney (depending on who is calling the expert) has the burden of proving that the scientific principles or methodology underlying the expert’s opinion, and how he came to it, “is sufficiently established to have gained general acceptance in the particular field in which it belongs.”

What does this mean? It means that the prosecution must prove more than just “this witness is an expert because he works in this field.” In the growing field of forensic podiatry, which is not as generally accepted as fingerprint analysis or DNA, he would have to prove that the science behind the method is sound. The judge is responsible for making a determination as to whether a witness qualifies as an expert; the jury may give as much weight to the witness’ testimony as they wish, which means they can discard it entirely.

Both the prosecution and criminal defense attorney can call their own witnesses to the stand to testify about the same piece of evidence. It is then up to both attorneys to prove to the jury why their expert is the most credible, and why his testimony should be given the greatest weight during deliberations.

May 14, 2015

The Use of Social Media in Chicago Criminal Cases

by Law Offices of David L. Freidberg, P.C.

Social media sites such as Facebook, Twitter and Instagram are changing more than just how we communicate with friends and family. It is changing the way law enforcement and criminal defense attorneys handle their cases as well.

The Oak Brook police department, for example, posts alerts on its Twitter and Facebook pages in real time, alerting followers to descriptions of suspects and vehicles to be on the lookout for. Law enforcement routinely comb suspects’ social media sites – many of which are wide open to the public – for evidence that could point to commission of the crime or fulfill the reasonable suspicion necessary to obtain a search warrant.

Law enforcement also uses social media in sting operations to catch child predators, having undercover cops pose as underage children in online chat rooms or other groups and arranging meetups. And a suspect’s updates can pinpoint his location to a specific time and location, which could help put him in the vicinity of the crime or, in the case of a defense attorney, could provide an alibi.

But while social media is changing the way police, prosecutors and criminal defense attorneys obtain evidence and conduct their investigation, the evidence is still subject to scrutiny and must be collected in accordance with the same rules of criminal procedure that apply to other evidence.

Access to social media accounts. For example, law enforcement could not hack into your social media sites. If they want access to non-public information, they need to obtain a search warrant or have your consent to access the sites. If you have a shared account with another person – many husbands and wives share Facebook accounts, for instance – the other person could consent to law enforcement’s access of the account.

Hacked accounts. If the police find photographs or other evidence that tends to show the suspect was responsible for the crime, computer experts must be called in to examine the evidence to determine if it could have been posted by somebody else. Did the suspect have access to the social media site at the time the photo, status or other evidence was posted? Does somebody else have access to the account? Could the time stamp or location designation have been altered? Could the incriminating evidence have been posted due to spam?

On the other hand, social media sites give law enforcement the potential for unparalleled access to a suspect’s information that may seem sneaky, but are nonetheless legal.

Facebook friends. If your page is private, law enforcement can set up a fake profile and request to be your friend. If the friend request is accepted, law enforcement can use anything on your page as evidence without the need for a search warrant, because you invited them to look.

Off-site entry. Have you ever gotten a call from somebody claiming to be your computer’s technical support, asking for access to your computer to fix a “bug”? Law enforcement could try to access your computer that way as well, which could give access to your social media passwords. This may be considered legal access to your information, even though you wouldn’t have given them permission if you’d known who they really were, similar to if you allow a police officer into your home.

May 12, 2015

FBI Admits Errors in Analysis of DNA Evidence

by Law Offices of David L. Freidberg, P.C.

A joint task force comprised of the U.S. Department of Justice, the Federal Bureau of Investigation, the Innocence Project and the National Association of Criminal Defense Lawyers released a report in April indicating that in at least 90% of criminal defense trials reviewed, testimony by microscopic hair comparison analysis examiners was erroneous.

Three thousand cases involving FBI hair analysis are being reviewed as part of the review process. As of March 2015, approximately 500 of those cases have been reviewed. Among the report’s findings:

In cases where the examiner’s testimony was used as evidence of the defendant’s guilt, 96% contained erroneous statements;
In cases where the defendant received the death penalty, 94% contained errors;
Nine of the defendants sentenced to death have already been executed, and five died of other causes on death row; and
Of the 28 FBI examiners whose testimony has been reviewed, 26 of them had errors in their testimony or prepared lab reports containing erroneous statements.

The results of the joint study do not mean that there was no other evidence to support the defendants’ guilt, and the prosecution may have won a conviction even if the erroneous testimony had not been admitted at trial. But the fact that 96% of cases included false proof of guilt highlights the need for independent forensic experts in all criminal defense cases.

The popularity of television crime procedurals means that the public is more aware of DNA and forensic evidence than ever before. For many proof of guilt or innocence rests on the presence of DNA. But while advances in forensic science mean that forensic analysts are able to obtain DNA evidence from smaller and smaller specimens than they were in years past, the potential for error still exists, and a DNA “match” is not the slam-dunk television would have you believe. Errors in DNA evidence may include:

Improper collection;
Contamination of specimen prior to processing;
Failure to obtain a search warrant prior to taking a specimen;
Contamination of specimen during testing;
Malfunction of equipment used to test specimen;
Inadequate credentials and expertise of examiner, or;
Improper analysis of evidence.

Errors in DNA testing and analysis may be malicious or due to simple human error. Regardless of the reasons, those errors will go undiscovered without the knowledge and expertise of a seasoned criminal defense attorney and independent forensic experts. Forensic analysis submitted by the FBI or police department is biased; after all, they are the ones who made the arrest, so they are convinced of the defendant’s guilt. Thus in order to convince the jury that the prosecution’s analysis of the evidence is wrong, the defendant must obtain his own expert to test the DNA sample and prepare his own report on whether the evidence points to the defendant’s guilt or innocence. Failure to obtain an independent expert analysis of DNA evidence could mean the difference between a finding of guilt or innocence.

May 8, 2015

Decriminalization of Marijuana One Step Closer in Illinois

by Law Offices of David L. Freidberg, P.C.

The Illinois House of Representatives passed a bill that would decriminalize possession of marijuana. Passage comes on the heels of a recent announcement made by Cook County state’s attorney Anita Alvarez that her office will no longer prosecute minor pot cases. The bill must pass the Senate before being transmitted to the governor’s desk for signature.

Low-level Possession of Marijuana Crimes in Illinois

If passed by the Senate and ultimately signed in to law by Governor Rauner, the law would not only decriminalize possession of low-levels of marijuana, but would create consistency between state law and public ordinances.

Current Illinois law classifies possession of between 2.5 and 30 grams of marijuana as a Class A, B or C misdemeanor, depending on the amount the defendant possessed at the time of arrest. A second or higher arrest for possession being is upgraded to a Class 4 felony. Penalties for conviction range from 30 up to one year in jail and fines ranging from $1,500 to $2,500.

Under the proposed law, Chicago residents could legally possess up to 25 grams of marijuana, and the penalty for being caught in possession would be no worse than a traffic ticket – no jail time, and a maximum $125 fine.

The law is addressed at growing recognition that prosecution for low-level misdemeanor cases is a waste of the court’s already stretched and limited resources and serves no real purpose, as the majority of offenders are non-violent, recreational users who pose no threat to the public. But it will also make penalties for misdemeanor possession crimes uniform across the state.

Under the present system, a person in any city or county across the state can be arrested for possession of 5 grams of marijuana. But whether or not that person is prosecuted depends on where the arrest was made.

If the arrest is made in Chicago, as of now there will be no prosecution for misdemeanor possession. According to the Cook County state’s attorney’s office, all such cases will be dismissed. Those arrested and charged with a Class 4 felony in Cook County will be diverted to an alternative program that seeks to rehabilitate chronic drug abusers, rather than throw them in prison where they will receive little to no treatment for their addiction.

The same person arrested in another city, however, for possession of 5 grams of marijuana could be placed in jail for up to 30 days and face a fine of $1,500. And if he is a repeat offender, whereas the city of Chicago would offer him treatment in an effort to break the cycle of addiction, another city could place him in jail for up to a year, only to have him be released and fall right back into the cycle.

In order to be effective laws must be applied uniformly. And basic fairness requires that a person should not be subject to criminal punishment for engaging in behavior in one city that is perfectly legal in the next. Continue reading

May 7, 2015

Defendant Found Not Guilty by Reason of Insanity, Sentenced to Mental Institution

by Law Offices of David L. Freidberg, P.C.

A DuPage County man who was charged with the attempted murder of his mother was declared not guilty by reason of insanity and sentenced to up to 30 years in a mental institution. A DuPage County judge found the defendant mentally unfit to stand trial for the 2011 stabbing and entered the ruling. But what level of competency is required to stand trial, and what does it mean to be found not guilty by reason of insanity?

Illinois Standard for Mental Fitness to Stand Trial

Under Illinois law each criminal defendant is presumed fit to stand trial. The criminal defense attorney has the burden of proving that, due either to mental or physical condition, the defendant is mentally unfit to stand trial because he does not “understand the nature and purpose of the proceedings” and is unable to assist in his defense.

Being mentally fit for trial does not mean that defendant will automatically be found not guilty by reason of insanity. Mental fitness to stand trial has to do with the defendant’s ability, at the moment of trial, to understand the purpose of the trial and assist in his defense. It has nothing to do with whether the defendant understands the nature of his alleged crime at the time of commission.

Mental fitness to stand trial can change over time. A defendant can be competent at the time of arrest but found incompetent – perhaps due to a subsequent injury unrelated to the charged crime – at the time of trial. Or a defendant can be mentally unfit when the crime was committed, such as if he suffers from a mental illness, but may be declared fit for trial once he is on a course of medication to keep his mental illness under control. It is not uncommon for prosecutors to seek a continuance of trial when a defendant is deemed mentally unfit to see if there is a possibility that he will regain the required competency to stand trial

Illinois “Not Guilty by Reason of Insanity” Verdict

In order for a defendant to be found not guilty by reason of insanity in Illinois, it must be proven that, at the time the crime was committed, the defendant lacked “substantial capacity to appreciate the criminality of his conduct” as a result of a mental disease or defect. In these cases, the defendant was unable to recognize that his actions were wrong.

Like proving the defendant is mentally unfit to stand trial, the burden is on the defense to prove, by clear and convincing evidence, that the defendant lacked substantial capacity to recognize that his actions were wrong, and should therefore be found not guilty by reason of insanity. The prosecution still bears the burden of proving the defendant’s guilt beyond a reasonable doubt. If the jury finds the defendant committed the crime, it may then decide whether to find him insane. The issue of the defendant’s sanity cannot be considered unless the jury finds that he committed the crime.

As evidenced in the above case, being found not guilty by reason of insanity does not mean that the defendant walks free. Criminal defendants who have been found insane can be committed to mental institutions, sometimes for a pre-determined sentence, and in other cases until the defendant can be cured of the mental defect.

May 1, 2015

Retail Theft in Chicago: Even a Small Item Carries Big Punishment

by Law Offices of David L. Freidberg, P.C.

Two Chicago residents were arrested recently for allegedly committing retail theft at two different stores at Lincolnwood Town Center. But the value of the stolen goods may leave you wondering why police and prosecutors even bothered pressing charges.

Chicago Retail Theft

In the first incident, a man was charged with retail theft for allegedly hiding an $18 pair of socks and walking out of a Kohl’s department store without paying for them. In the second incident, which occurred on the same day but at Carson’s, a woman was arrested for allegedly concealing a pair of earrings worth $46 and walking out of the store with them.

You’re probably thinking: “Wait, the police were called for an $18 pair of socks? For a $46 pair of earrings? The amount of time and resources they spent taking statements, arresting and booking the suspect was probably five times the cost of the items these two people attempted to steal. Can they even get jail time for that?”

Despite the fact that yes, the expenditure in police, prosecutor and court time and resources to follow these two cases from arrest to jury trial far exceeds the value of the items stolen, both these defendants could be facing jail time if found guilty.

Retail theft in Illinois of any property valued at less than $150 is a Class A misdemeanor, which is punishable by up to a year in jail. A charge of retail theft isn’t dependent upon the suspect actually getting away from the store with the item. Once he exits the store with the unpaid merchandise, the crime has been committed, even if store security was watching and waiting for him to step outside before detaining him.

But why bother pressing charges against a person for $18? Taken as a single event, it seems ridiculous. But from the store’s perspective, these small, single events add up and take a toll on their bottom line, so many take a hardline and press charges on all attempted thefts, no matter how small. Many department stores even have signs posted in dressing rooms and other prominent places stating their intent to prosecute all incidents of retail theft, no matter how minimal the value of the stolen item.

From the prosecution’s standpoint, small crimes can add up. While a person may steal only an $18 pair of socks one day, over the course of several years the theft of small items quickly adds up. But that doesn’t mean if you are arrested with retail theft you are guaranteed time spent in jail. Prosecutors are overworked, underpaid and want to close the big cases – murder, robbery, sexual assault and other violent crimes – not spend precious time and resources going after sock stealers. If this is a first or second offense, chances are high that the charges may be dismissed, or we can negotiate no jail time in exchange for a guilty or no contest plea. Or we may be able to have the charges reduced to attempted theft, depending on the circumstances. With an experienced criminal defense attorney, it is often possible to get these crimes pled out with minimal to no jail time, or even outright dismissed.

April 29, 2015

Intoxication as Defense in Chicago Criminal Case

by Law Offices of David L. Freidberg, P.C.

You have no doubt heard the story of a Kentucky woman who answered a knock at her door only to be assaulted by a stranger who began strangling her with a bra. The woman fended off the attacker after knocking her on the head with a ceramic chicken. The suspect pled not guilty and claimed she was under the influence of narcotics. But is being under the influence a valid criminal defense to the commission of any Illinois crime?

Intoxicated or drugged condition defense

Under Illinois law a person who commits a crime while intoxicated or otherwise under the influence of drugs or alcohol is still responsible for those crimes, unless the intoxication is involuntary and deprives him of substantial capacity to either:

Appreciate the criminality of the conduct; or
Conform his conduct to the law.

The intoxication defense is an affirmative defense. This means that the defendant, and not the prosecution, has the burden of proving that his intoxication was involuntary, and that as a result of this involuntary intoxication, he could neither understand nor control his conduct.

Under this standard, it is clear that knowingly drinking alcohol to the point of intoxication, or getting high on marijuana, cocaine or another drug, would fail the voluntary portion of this defense. But what situations would fall within the defense?

If the defendant was tricked or otherwise coerced into taking a substance that caused him to become intoxicated. Someone who ingested brownies or another food product made with marijuana, had a drug slipped in their drink, or in some other way took an intoxicating substance without knowing it was laced with drugs cannot be said to have become voluntarily intoxicated.

Another scenario would be when prescription or nonprescription medication affected the defendant in a way that was unexpected. Whether over the counter or prescribed by a prescription, drugs come with warnings of side effects. If drowsiness was a side effect, and the defendant ran over someone with his car after taking the drug and falling asleep at the wheel, he can’t be said to be involuntarily intoxicated. It was not his intent to become impaired, but he knowingly took the drug, with full knowledge of the potential side effects, and got behind the wheel anyway. The same could be said about a defendant who took a drug knowing that it had caused a reaction in the past. For example, maybe the defendant took medication that one day caused him to have a seizure. If he was in an accident at that time, he could successfully invoke the intoxication defense, because he had no idea the drug would cause that reaction. But if he took the drug again, knowing how his body may sometimes react, his intoxication would not be considered involuntary.

The above scenario would be different, however, if the defendant did not know the drug would affect him in the way that it did. For example, if the doctor failed to inform the defendant of possible side effects prior to prescribing it, or if the prescribed medication caused an adverse reaction with another medication the defendant was taking, and the physician failed to warn the defendant ahead of time of the consequences of the drug interaction. Another instance would be where the defendant had a previously undiagnosed medical condition that made him react to the drug in ways that could not have been anticipated when taken. If the defendant mistakenly took a powerful narcotic, when he thought he was taking something as ordinary as aspirin, could also be enough to invoke the intoxication defense.