Kriss Halpern, JD
TCOYD Newsletter, Vol. 30, 2009

In the last issue we described three hypothetical incidents where a car accident caused by a driver suffering severe hypoglycemia resulted in a death. We left for this issue the question of whether any of the drivers might properly be charged with murder.

In the first hypothetical raised previously [none of these hypotheticals are based on an actual incident], the driver accidentally took a shot of fast acting insulin instead of the slow acting he uses as basal coverage; he went for a long drive; he suffered a severe reaction; he got into a car accident; someone was killed.

In this case, the driver did not knowingly do anything wrong. The severe hypoglycemic event was the result of a mistake. There was no intentional act. There was no plan to harm anyone. Thus, it appears obvious that murder could not reasonably be considered. But reason does not always control events when someone is killed. Police and prosecutors can be under extraordinary pressure when an innocent person dies. Loved ones want and deserve an answer: something to explain their terrifying loss; some despicable criminal to blame. When questions are asked and answers demanded, things are often not so black and white.

If a murder charge is not appropriate because there was no intentional effort to kill, some lesser charge would have to be considered. In California, there are two types of vehicular manslaughter. The first is felony manslaughter which requires recklessness. The second is a misdemeanor which requires negligence. Both also require an unlawful traffic event. The erratic driving that preceded the accident may qualify. In Black’s Law Dictionary recklessness is defined as, “the creation of a substantial and unjustifiable risk of harm to others and by a conscious (and sometimes deliberate) disregard for or indifference to that risk; heedless; rash. Reckless conduct is much more than mere negligence; it is a gross deviation from what a reasonable person would do.” Negligence is defined as, “the failure to exercise the standard of care that a reasonably prudent person would have exercised in a similar situation…”

A driver with diabetes who accidentally takes the wrong insulin has not had a “conscious disregard” for anything. He was not conscious of the error so recklessness does not appear to be an appropriate charge. Such a driver also might not be deemed negligent since a reasonably prudent person with diabetes taking insulin might very well have done the same thing. There is an argument, however, that a person who accidentally takes the wrong insulin was legally negligent since most people who take these insulins do so every day without making this particular error. At the moment of the mistake, it seems obvious that the driver was not reckless and at least arguable that he was not even negligent. This driver did nothing at all that he knew was wrong at the time and it does not appear that he did anything especially willful in making the error.

However, if the driver recognized his mistake at the time, how did he allow himself to drive afterwards? For his own safety he would have to treat the low immediately; glucagon or cans of juice and glasses of milk or food with high carbs would be needed; an urgent call to a physician might be needed as well. If the driver ignored these obvious needs and went driving instead, this might well be a case of criminal recklessness. Is there a defense to such an act? Of course, but one would need to know much more. Was the driver suffering from some mental incapacity as a result of the mistake? Did he comprehend what he had done? Did he decide to drive to a hospital and end up in an accident along the way? These are some of the questions that need to be considered before you can assess whether there was criminal responsibility, because each of them go to the question of knowledge and intent relating to the event.

I have met with prosecutors who argue that a person who knowingly takes insulin and begins driving should be treated no differently than a drunk driver if someone is killed. But a mistake in insulin dosage alone is not a criminal act. Let’s break it down.

First, a person who drinks alcohol does not need to drink in order to survive. Taking insulin in order to survive and drinking alcohol are not the same because the reason for using them is utterly different.

Second, drinking alcohol in certain amounts is always dangerous when driving. Taking insulin by a person for whom it has been prescribed is not. There is a clear difference between drinking five bottles of beer and taking five units of insulin. Both can be dangerous, but only the alcohol is always dangerous when driving. Safely adjusting insulin dosages is not automatic and mistakes are made by all of us. Drinking certain amounts of alcohol is always and inevitably dangerous. Taking certain amounts of insulin might be dangerous one moment and perfectly proper at another.

Third, because insulin is needed for survival and because it is not always obvious when it might be taken excessively, the idea that someone recklessly or knowingly took it to excess is far more difficult to determine. It would be a rare and odd case when someone knowingly and intentionally took insulin to excess. The same is not true for alcohol. Insulin is taken for the purpose of converting carbohydrates to energy; it is not taken for pleasure or entertainment; it is not taken by a person with diabetes purely for the experience of doing so. When it is taken to excess it is virtually always an unintended mistake.

Fourth, when a person drives after overdosing insulin there is still an opportunity to avoid harm—either by testing and avoiding a severe low, or by pulling over when one feels symptoms and treating the low before driving again. Most of us who take insulin have reason to believe we can avoid danger while driving. As a result, we have a legitimate basis to argue that we did not do anything criminal if we make a mistake and tragedy occurs. In our experience, we know when we are low and have an opportunity to avoid a serious problem before it becomes a danger. If an incident occurs it is an aberration.

Fifth, at the moment of severe hypoglycemia we are not in control of our thoughts and actions. We have no mental capacity to take an intended action. Severe hypoglycemia can sometimes occur in what seems like a virtual flash. A person in this diminished capacity cannot be guilty of a criminal act that requires intent. This is particularly so where that person did nothing intentionally to put him or herself into a state of diminished capacity. The goal was not the feeling that accompanies diminished capacity as it is with someone who drinks to excess. The goal was proper blood glucose management.

These are reasons to distinguish taking insulin from drinking alcohol. They are also reasons that make a hypoglycemic event that leads to an accident that results in death not criminal in nature. Not murder and not manslaughter. A horrid accident. But not criminal. Not something that merits time in jail.

Another hypothetical described in the last TCOYD newsletter is about a serious low blood sugar in which the driver does not recognize her symptoms until it is too late and is unable to pull over safely and treat the low before an accident occurs. I have represented about one hundred people in license suspension hearings over the past ten years, half of whom were involved in an event of this nature. In nearly all cases, no one was injured. But, that is fortuitous. When we go severely low our bodies and minds slow down; we cannot react normally. If we do not pull over before the low becomes severe, an accident is possible at any moment. When that happens, and someone is killed, a criminal charge will inevitably be considered.

The reasons for the severe low blood sugar, and the actions of the driver prior to the accident, need to be considered with a clear understanding of the medical implications of her actions, and her state of mind at the time, to come to a reasonable determination of the degree of fault involved and whether her actions could reasonably be considered criminal in some form.

No intentional act of murder took place. The driver did not intend to kill someone. Therefore, murder should not be charged.

This does not mean such an event can never be criminal. But more needs to be known about the degree of intent and responsibility before a criminal charge is made.

The third hypothetical presented in the prior issue suggests when a criminal charge might be properly made. In that example, the driver has had many incidents of severe hypoglycemia. The driver clearly has hypoglycemic unawareness—in other words, he does not recognize hypoglycemia in time to avoid it because he does not feel symptoms of these events when they happen. He has had prior events where it happened that were severe and dangerous.

He has been warned about it by his physician. He does a number of things that set up a severe and dangerous event on this occasion: he takes part in exercise, knowing that this will lower his blood sugar; he then fails to test before driving, despite knowing he does not normally feel symptoms of low blood sugar; he then drives a significant distance without eating.

Does this make him guilty of murder if a tragedy occurs? No. He did not intend the tragic result. Was he reckless and guilty of manslaughter? Perhaps. There are enough bad facts here that a prosecutor would obviously have to consider criminal charges (assuming these facts become known to the prosecutor). There are enough innocent facts that the driver might not be guilty of any. He was clearly guilty of negligent, perhaps reckless, blood glucose management. But negligent or reckless blood glucose management is not the same as negligent or reckless driving. Hypoglycemia is never intended and can always become dangerous. We know a mistake was made whenever severe hypoglycemia occurs. It is likely that virtually all of us who take insulin have at some time driven while hypoglycemic; just as it is likely that virtually all people who drive have done so at some time while sleepy or distracted or angry—all of which can result in a horrifying accident just as easily as hypoglycemia.

In order to charge someone with criminal behavior there must be some detail that makes the action outrageous; that shows the person was irresponsible and not merely mistaken. Among other things, in a country where so many have insufficient access to medical care; when the standard of care in the medical profession does not call on health care providers to do nearly as much as they should to warn individuals on insulin how to drive safely and avoid accidents; or when health coverage plans do not provide access to tools, such as continuous glucose monitors, that allow people with diabetes to avoid hypoglycemia in the first place, it is unfair to charge someone who was not willful or reckless in causing an accident to be branded a criminal.

This is not to say that those of us on insulin do not have our own responsibilities to know what we are doing and take precautions whenever we drive, but rather, that a mistake is still a mistake even when the consequence of that mistake is tragic. And that such a mistake should not be deemed criminal merely because of an awful result.

Let me add that although I have been involved to some extent in three such cases, these cases are extremely rare. Drivers with diabetes are not frequently getting in horrid car accidents because of insulin. However, those of us involved with diabetes must also understand that even one such accident is a horrifying tragedy that cannot be undone. It is up to us to work to avoid it from happening, ever.

– Kriss Halpern, one of TCOYD’s longest serving faculty members, spoke in 2009 at the Milwaukee, Santa Clara and San Diego national conferences on health care reform and its implications for people with diabetes.

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