Sleep Apnea ExpertsSleep apnea is the most frequently diagnosed sleep disorder in the United States. It’s also becoming a “go to” criminal defense for many trial attorneys.

Sleep apnea is a potentially serious sleep disorder in which breathing repeatedly stops and starts during a sleep cycle. The use of sleep apnea as a defense holds that the defendant isn’t guilty for his or her actions because sleep apnea caused him or her to suddenly fell asleep prior to the illegal act. It’s a variation on the sleepwalking defense that’s been around for several decades.

Some experts contend that there are circumstances in which this sleep-breathing disorder may cause otherwise responsible people to commit dangerous acts. Many courts have found that sleep apnea is not a strong defense. However, there are cases where the disorder may explain the dangerous or offensive behavior. There is plenty of evidence that shows that sleep apnea significantly increases the risk of falling asleep behind the wheel and being involved in a crash.

A recent article in the New York Post questions a physical conducted by the employer’s company that approved a train engineer before a fatal crash where he slammed into a station at twice the speed limit. The operator said his sleep apnea caused him to fall asleep at the time.

And in a recent California case, a jury found a defendant guilty of committing a lewd act upon a child under the age of 14 years. The court sentenced him to a prison term of eight years. The 13-year-old victim testified Defendant sexually assaulted her, but he claimed that he was unconscious or sleepwalking. Defendant appealed his conviction.

A number of witnesses testified regarding sleep-related incidents involving Defendant or members of his family. One lay witness said he had severe sleep apnea and often stopped breathing while asleep. In addition, the defense called a psychologist and board-certified sleep specialist to testify on behalf of Defendant.

The Sleep Apnea Expert Witness explained that a parasomnia (sleepwalking) can happen when a person starts to wake up, “but doesn’t make it all the way to wakefulness,” and engages in behavior while in this “very odd state of consciousness.” In this case, the expert stated that this behavior could include sexual activity. According to the expert, there’s no proof sexual behavior in sleep occurs while in this state, but “the best theory we have right now” is that sex can occur while sleepwalking because the part of the brain that controls primitive urges isn’t functioning.

The expert diagnoses whether a person has experienced a parasomnia based on the history provided by family and friends. The expert looks for the “three P’s”:

  • Predisposition;
  • Priming; and
  • Provocation.

Predisposition means it often is hereditary, and priming means “there’s sleep deprivation and stress.” Provocation is the trigger that sets the event in motion.

Snoring due to sleep apnea can be the trigger that wakes the brain and provokes sleepwalking, the expert opined. He diagnosed Defendant with sleep apnea, but the diagnosis wasn’t based on medical records.

On direct examination, the expert opined it was consistent with parasomnia for inappropriate touching to occur where, in defense counsel’s words, “there has been some touching, a massage, the person has a history of sleepwalking and a family history of sleepwalking, sleep deprivation, sleep apnea, [and] congestive heart failure.”

According to the expert, “the most likely theory of this episode” is that Defendant fell asleep while massaging the victim’s foot “and sleep-related behavior started from there.”

However, the expert acknowledged that there are no tests to determine the existence of a parasomnia.

The Court of Appeals wasn’t swayed by the sleep disorder evidence and affirmed the conviction.