You can’t sleep. You’ve tried over-the-counter sleeping pills, but nothing seems to work. Maybe you’re up because you’re worrying. Maybe you’re up because you just don’t feel tired, even though you know you’re exhausted. You go to see your doctor. He prescribes you Ambien.
The drug is a miracle for you. For the first time in a seeming eternity, you sleep soundly through the night. You feel like you have a new lease on life.
And then you wake up one morning and you’re in jail. You’re shocked when the police tell you that you were driving. You’re horrified to discover that you were all over the road. You’re thankful to discover that you didn’t hurt anyone.
You’re also being charged with Operating While Intoxicated.
This might seem like a fanciful story to many reading it. I couldn’t believe it myself the first time a client told me about what Ambien made him do. And then I did some research and discovered that it’s a very real phenomenon. It’s so real, in fact, that the Food and Drug Administration made the pharmaceutical company provide the following warning to those who are prescribed Ambien (zolpidem):
What is the most important information I should know about zolpidem?
After taking zolpidem, you may get up out of bed while not being fully awake and do an activity that you do not know you are doing. The next morning, you may not remember that you did anything during the night. Reported activities include:
- Driving a car
- Having Sex
- Making or eating food
- Talking on the phone
Of course, this doesn’t change the fact that you’re charged with Operating While Intoxicated. Even if the blood test shows that you didn’t have anything else in your system. Even if you tell the police that you only took the drug to go to sleep. You’re still charged.
Prosecutors will tell you that taking a sleeping pill is like drinking alcohol. You took it willingly. You knew it would impair your abilities. Just like a person can’t claim that they only decided to drive after they were impaired by alcohol, the prosecution will tell you that you have no defense.
Fortunately, under Michigan law, you do have a defense. It’s called Involuntary Intoxication. To successfully use this defense, you have to prove three things.
- That you did not know or have reason to know that the prescription drug would cause you to be intoxicated. The prosecution will argue that the warning with the prescription was enough to say that you had reason to know. But, really, who reads the warnings that come with their prescriptions? I throw them out, and my wife is a doctor! Even the warning that something like sleep-driving could happen is a lot different from knowing that it will happen to you! These cases are won by convincing juries that you just took the prescription drug in order to go to sleep and not to get intoxicated.
- That the prescription drug, and not something else, is what caused your intoxication. If the blood test shows that you had other drugs or alcohol in your system, you need to prove to the jury that it was the prescription drug that caused your condition.
- That the prescription drug rendered you temporarily insane. It’s the most famous defense on television and in movies, and it actually is used in these cases. You have to prove to the jury that your judgment or your ability to recognize reality was impaired by the prescription drug. It’s pretty easy to show that your ability to recognize reality was impaired, considering the fact that you were asleep, at least.
But what about if you took more than the prescribed amount of the drug?
Taking more than your prescribed amount doesn’t mean that you’re not entitled to the Involuntary Intoxication defense. As long as you didn’t know that taking more of the drug would lead to intoxication, the same argument still applies for the first question above. When someone overdoses on sleep medication, what do they expect to happen? Do they expect to sleep? Definitely. Do they expect that an overdose might kill them? Perhaps. Do they expect to get up and drive their car? Probably not.
Unfortunately, fighting a case like this one is an uphill battle and will almost always require a jury trial to be found innocent. Prosecutors don’t like to drop charges, particularly if they find more than the prescribed dosage in your system.
I was recently told by a judge that he sees 10-12 cases per year where someone is charged with drunk driving for Ambien sleep-driving. My case in front of him, coming to trial soon, was the first one where anyone brought the Involuntary Intoxication defense to the court’s attention. The judge was literally horrified to discover that so many people might have been entitled to a defense they didn’t receive.
It’s great to see a judge who truly cares about the justice that he delivers.
It’s just sad that no one had him on the right path.
If you have questions about a criminal charge please contact Ambrose Law Group at (248) 624-5500