Somnolence, being asleep, erratic driving: Reflections on incapacity of action, recklessness and actio libera in causa

Abstract

In the present work, we question the traditional invocation of the figure of reckless actio libera in causa in cases where the driver falls asleep while driving and causes harmful results. To this end, we start from the observation that in the erratic driving of a vehicle in a state of somnolence, there is the legally disapproved danger and, if applicable, the corresponding reckless crime, as is generally acknowledged. Building on this observation, we argue that the same must be consistently maintained in the case where dangerous and anti-normative erratic driving materializes in the typical result when the subject has fallen into a state of incapacity of action (falling asleep). According to the theory of objective imputation, in these cases, we are dealing with an ordinary, not extraordinary, manifestation of reckless crime.