According to US News, The FDA announced Thursday that it will require manufacturers of zolpidem, a popular sleeping pill sold as Ambien and Edluar, to reduce recommended dosages amid concerns about morning drowsiness caused by the pills. In its announcement, the FDA noted that “some patients may be high enough the morning after use to impair activities that require alertness, including driving” and said that “patients with high levels of zolpidem can be impaired even if they feel fully awake.” The FDA has received 700 reports of zolpidem leading to “impaired driving ability and/or road traffic accidents.”
But what of these impaired drivers, should they be held criminally responsible in the same manner as people who drive drunk? One might argue that the difference is that of intent; one does not normally take ambien due to its potential to intoxicate.
Currently, some states do allow defendants to raise involuntary intoxication as a defense to intoxicated driving. California is such state and in the 35 page opinion of People v. Mathson, 210 Cal.App.4th 1297, 149 Cal.Rptr.3d 167 (Cal. App. 3 Dist., 2012) the court thoroughly analyzes and evaluated when this defense is applicable and when it is not.
In this case a citizen observed the defendant’s car driving erratically and called the police. Soon after the call the defendant was observed at a gas station standing between the gas pumps and a car that matched the description given. He responded coherently to a series of questions, including: where defendant was coming from, when and what he had last eaten, when he had last consumed alcohol or drugs, when and for how long he had last slept, whether his car had mechanical problems, whether he was diabetic or epileptic, whether he was under a doctor’s care, and whether he was taking any medication. In response to the officer’s questions about when defendant had last slept and for how long, defendant said he had slept for an hour earlier that day.
The defendant initially denied having consumed any alcohol or drugs but, upon further questioning, defendant told the officer that he had taken two 5–milligram prescription Vicodin pills at his home earlier that day—the first at 9:00 a.m. and the second at 4:00 p.m. During the field tests, defendant swayed, had difficulty maintaining his balance, exhibited a “very slow internal clock,” was unable to accurately count, swayed when stationary and when he walked, walked in a “robotic manner,” and was unable to touch his nose. After his arrest for DUI tests indicated that defendant did not have alcohol in his system. However, a blood test showed that defendant had .13 milligrams per liter of zolpidem in his system. No alcohol or other drugs were present.
The defendant testified at trial that he took one Ambien pill at 10:00 p.m. or 11:00 p.m. The following morning, after defendant learned that he did not need to go to work that day, he took another Ambien pill around 7:00 a.m. He did not remember taking another Ambien pill afterward. However, he admitted that it is possible he took more Ambien pills because he later discovered approximately four Ambien pills missing. Defendant testified that although he remembered a police officer standing in front of him, he did not remember driving, his conversation with the police officer, taking field sobriety tests, or being taken to the police station. According to defendant, the first thing he remembered after he took Ambien was waking up in jail dressed in orange.
After looking at an considering the jury instructions given as well as those proposed by either the defense or the prosecution, the court held that involuntary intoxication, which is a complete defense to a crime, can be caused by the voluntary ingestion of prescription medication if the person did not know or have reason to anticipate the drug’s intoxicating effects. The question of whether intoxication is voluntary or involuntary, in determining whether it is a defense to a criminal charge, focuses on whether the intoxication is induced through the defendant’s fault or the fault of another or whether the defendant knows or has reason to anticipate the intoxicating effects of the substance he or she ingests; if intoxication is the result of defendant’s own fault or defendant knows or has reason to anticipate the intoxicating effects, the intoxication is voluntary.
Driving under the influence (DUI) based on voluntary intoxication resulting in sleep driving is not excusable under the defense of unconsciousness, but involuntary intoxication resulting in sleep driving is excusable.
The court recommended the following instruction for voluntary intoxication to be used in cases where the defense involves a claim of unconsciousness resulting from the unexpected effect of prescription drugs:
“Voluntary intoxication is not a defense to driving under the influence of drugs. If you conclude the defendant’s intoxication was voluntary, then the defendant’s unconsciousness resulting from that intoxication is not a defense to the crime. A person is voluntarily intoxicated if: (1) the person willingly and knowingly ingested a drug; (2) the drug was capable of producing an intoxicating effect and (3) the person knew or reasonably should have known that the drug could produce an intoxicating effect.”
If you are stopped in Michigan after experiencing the unanticipated intoxicating effect of a prescription drug you took, chances are, depending on the circumstances, you will be charged for drunk driving. However, you may also have a defense that could lead to the dismissal of your charges or an acquittal at trial. Either way, it will be necessary for you to contact an experienced and knowledgeable DUI defense attorney.
The attorneys at the Barone Defense Firm have experience handling these kinds of cases and may be available to help you. Call today for your FREE case evaluation.
Patrick T. Barone
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