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Va. Officer's Case Motivates Lawmaker's Proposal

RICHMOND, Va. -- On the heels of an incident last year in which an antibiotic caused a Virginia Beach police officer to hallucinate and attack two Eastern Shore firefighters, an Accomack County delegate is looking to change how cases like this proceed in court.

The attorney for Bradley Colas, in defending his client against charges of malicious wounding and attempted murder, argued that Colas had been involuntarily intoxicated by a generic version of the drug Biaxin, prescribed to treat a respiratory infection. Several doctors agreed he'd suffered a drug-induced psychosis, and, after obtaining its own evaluation, the Accomack County Commonwealth's Attorney's Office agreed to withdraw the charges against Colas.

Though such cases are rare, a defense attorney should have to notify prosecutors if he or she plans to argue for involuntary intoxication, said Virginia Beach Commonwealth's Attorney Harvey Bryant, who represents the region on the Virginia Association of Commonwealth's Attorneys board. That way the prosecutor can prepare and have the opportunity to request an independent evaluation of the defendant, he said.

A bill by Del. Lynwood Lewis, D-Accomac, would do just that. HB1517, which passed the House Courts of Justice Committee on Wednesday, would require a defense attorney to notify the Commonwealth's Attorney's Office of an involuntary intoxication defense within 60 days of trial. It would also codify prosecutors' right to hire their own experts to testify.

State law mandates similar notification when an attorney plans to use an insanity defense.

Lewis said he brought the bill at the request of the Accomack County Commonwealth's Attorney's Office. The Colas case motivated the proposal, though he doesn't think the outcome would have been any different, he said.

Moody E. "Sonny" Stallings Jr., the attorney who defended Colas, said the bill is fair and necessary to correct a loophole.

Stallings announced early in Colas' case that he intended to use involuntary intoxication as a defense and did not object to prosecutors' getting their own evaluation, he said.

Involuntary intoxication is rarely used as a defense, said David Heilberg, past president of the Virginia Association of Criminal Defense Lawyers. Still, he said, it can come into play when a defendant takes something he or she didn't know could cause behavior that might result in charges such as public intoxication or driving under the influence.

Heilberg, a Charlottesville attorney, said he plans to use the defense in an upcoming DUI case. A blood test showed his client was taking only prescription medications at the time of the offense, he said.

Advance notice in those cases gives both sides fair time to prepare, Bryant said.

"Sometimes I hear folks talking about prosecution by ambush," he said, "and there shouldn't be a defense by ambush either."

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