Washington Criminal Defense
November 2012 – Volume 26 – No. 4
Sleep Driving in Snohomish County
Anatomy of an Ambien DUI
BY SHERI PEWITT
Fatigued after a long day, Mr. Almos1 welcomed the rejuvenating sleep that awaited him. He took his Ambien and slid into bed just as he'd done each night since being prescribed Ambien a month prior. Almos' next memory is of being dropped off at his home by a Washington State Trooper.
While his Ambien toxicity was wearing off, Almos' nightmare was just beginning. Nothing could prepare Almos for the shock of what came next. He learned that in the early hours of dawn he had gotten out of bed and left his home wearing only slippers, jeans, and a suit jacket — exposing his bare chest. The trooper had found Almos in the driver's seat of his car, attempting to dislodge his car from the side of a curb. Almos' car tires were completely shredded and he was attempting to drive on what was left of the wheel rims.
Almos was arrested and charged with reckless driving and driving under the influence. He had no illegal drugs and no alcohol in his system. During his arrest and processing, the trooper shook Almos several times in an attempt to render him responsive enough to reply to his questions. When Almos did respond, his answers were nonsensical or simply wrong.
Almos remembers taking only one Ambien as directed and going to bed. After being dropped off at home by the trooper that morning, Almos noticed his Ambien pills were spilled across his nightstand, suggesting unconscious ingestion of additional Ambien sometime during the night. As the grim reality of the morning's events began to sink in, Almos contacted his doctor and discontinued his Ambien. Almos began trying to make sense of what happened while he “was asleep” and to understand how taking Ambien before going to bed could lead to the criminal charges he now faced. Almos could not understand how he could be charged with reckless driving and DUI when he took his Ambien as directed and went to bed as usual. He had no illegal drugs, no alcohol and no other impairing substances in his system. Almos certainly hadn't intended to drive and he wanted his day in court!
Ambien Sleeping Driving
Almos' toxicology report revealed a high level of zolpidem in his blood. Zolpidem is approved by the Food and Drug Administration (FDA) for the short-term treatment of insomnia in the United States.2 It is sold under the brand name Ambien by the French Company Sanofi-Aventis. Zolpidem was the seventeenth most prescribed generic medication in the United States in 2010, with over 29 million prescriptions written.3
Zolpidem Side Effects
Sleep-related activity such as sleep driving, sleep sex, sleep eating, and sleep telephoning have been reported as just some of zolpidem side's effects.4 WebMD.com contains over 1,000 Ambien user product reviews, including many reports by individuals who have experienced alarming side effects or have been told they engaged in activities of which they have no recollection.5 The FDA received so many reports of sleep-related activity after taking hypnosedative medications such as zolpidem that it requested that specific warnings be put on all hypnosedative medications by March 2007.6 The Ambien prescription information listed on the Sanofi US website warns that:
Complex behaviors such as “sleep-driving” (i.e., driving while not fully awake after ingestion of a sedative-hypnotic, with amnesia for the event) have been reported with sedative-hypnotics, including zolpidem. These events can occur in sedative-hypnotic-naive as well as in sedative-hypnotic-experienced persons. Although behaviors such as “sleep-driving” may occur with Ambien CR alone at therapeutic doses, the use of alcohol and other CNS depressants with Ambien CR appears to increase the risk of such behaviors, as does the use of Ambien CR at doses exceeding the maximum recommended dose. Due to the risk to the patient and the community, discontinuation of Ambien CR should be strongly considered for patients who report a “sleep-driving” episode. Other complex behaviors (e.g., preparing and eating food, making phone calls, or having sex) have been reported in patients who are not fully awake after taking a sedative-hypnotic. As with “sleep-driving”, patients usually do not remember these events….7
A study published in The Journal of Clinical Sleep Medicine described zolpidem-associated complex behaviors including daytime automatisms and sleep-related parasomnias. The study concluded that sleep driving and other complex behaviors can occur after zolpidem ingestion.8 Numerous medical reports linking zolpidem and sleep driving activity seemed consistent with Almos' recollection of taking a single Ambien and going to sleep with no memory of driving.
Making Sense of the Toxicology Report
To understand how the high levels of zolpidem listed in the toxicology report affected Almos, I turned to Dr. Robert Julien, author of a leading psychopharmacology textbook, A Primer of Drug Action,9 Dr. Julien is uniquely qualified to consult on Almos' Ambien DUI because he has anesthetized thousands of patients inducing various levels of consciousness. Through anesthesia, Dr. Julien has rendered some patients responsive to stimuli and others completely unresponsive. This expertise is crucial when mens rea or actus rea may be an element of the charge. In the few published cases detailing Ambien related criminal trials; jurors often dismissed the involuntary defenses opting to find the Ambien defendant guilty of a volitional act.10 This apparent reluctance by jurors to believe an individual could involuntarily act suggests to me that the jurors did not understand how zolpidem works. Having the right medical expert is crucial in zolpidem cases.
Defense expert Dr. Julien determined that Almos was suffering from Ambien toxicity. Dr. Julien was able to explain from a medical perspective the essential elements of memory, consent, intent, and pharmacologically-altered mental capacity.11 Almos was so debilitated by Ambien toxicity that he was incapable of:
- creating new memories;
- forming intent; or
- committing volitional acts.
Almos asserted the defenses of involuntary intoxication and automatism. The Snohomish County Deputy Prosecuting Attorney (DPA) responded by dropping the reckless driving charge because he couldn't prove the mens rea element. However, the DPA argued that DUI was a strict liability offense with no mens rea element so the DUI charge remained. I came to trial prepared to argue an implied mens rea for DUI. Ultimately, the mens rea issue for DUI was not considered because the state conceded in its brief that involuntary intoxication (mens rea) and automatism (actus reus) were both complete defenses provided the defense proves the defenses by a preponderance of the evidence. For the defense to have any chance of getting jury instructions for involuntary intoxication and automatism resulting from Ambien toxicity, the defense needed the toxicology report admitted into evidence at trial. I made the strategic decision to stipulate to the Washington State Patrol (WSP) toxicology report. Armed with Dr. Julien's expertise, the WSP toxicology report, and Almos' testimony, the defense set out to meet its preponderance burden.
The DUI statute punishes only voluntary intoxication, not involuntary. Kaiser v. Suburban Transp. System 65 Wn. 2d 461, 401 P.2nd 350 (1965). “Involuntary intoxication” is intoxication resulting from force or fraud; or from the medicinal use of drugs. State v. Hutsell, 120 Wn.2d 913, 920, 845 P.2d 1325, 1329 (1993); State v. Gilcrist, 15 Wn.App. 892, 894-895, 552 P.2d 690, 692 (1976). In one case, the Washington State Supreme Court held that a person did not commit a DUI by driving after taking a prescription drug, when he had no knowledge of the drug's harmful qualities. Kaiser v. Suburban Transp. System, 65 Wn. 2d 461, 401 P.2nd 350 (1965).
Under a later statutory amendment, the fact that a person is legally entitled to take a drug is not a defense to either DUI or physical control. West's RCWA 46.61.502(2). This amendment might alter the holding of Kaiser. However, Kaiser may be distinguished from the general statutory amendment based on the “no knowledge of harmful qualities” requirement in the Kaiser holding.12
Generally, when a person drinks intoxicating beverages or takes drugs for other than medicinal purposes, she or he is voluntarily intoxicated and this type of intoxication is no defense to a crime requiring no specific intent. State v. Gilcrist, 15 Wn.App 892, 894, 552 P.2d 690 (1976). Where a physician prescribes drugs which cause intoxication,that intoxication is involuntary even where the patient is prescribed or inadvertently takes an overdose and even when an overdose is administered to a party by a person not a physician. Id. In the Gilcrist case, Division One of the Washington State Court of Appeals held that the trial court erred in refusing appellant's proposed instruction on involuntary intoxication and in submitting the state's instructions on both voluntary and involuntary intoxication to the jury. Id at 895. The requirement that a criminal act prohibited by the legislature require a voluntary act is summarized well by the Washington State Supreme Court in its holding in Kaiser v. Suburban Transp. System:
General terms inflicting punishment on any person who might do any particular act should be construed to mean only such persons as act voluntarily and intelligently in the performance of the interdicted act. We should not suppose, in the absence of specific words saying so, that the legislature intended to make accidents and mistakes crimes. Human actions can hardly be construed as culpable, either in law or in morals, unless an intelligent consent of the mind goes with the actions; and to punish where there is no culpability would be the most reprehensible tyranny. The legislature usually, in enacting criminal statutes, enacts them in general terms, so as to make them by their terms include all persons; and yet it is always understood that some persons, as idiots, insane persons, young children, etc., are not to be considered as coming within the provisions of the statute. It is always understood that the courts will construe the statute in accordance of the general rules of statutory construction and apply the act only to such persons as the legislature really intended to apply it; that is, to apply the act to such persons only as should intelligently and voluntarily commit the acts prohibited by the legislature.
Kaiser v. Suburban Transp. System 65 Wn. 2d 461, 401 P.2nd 350 (1965).
“Involuntary intoxication does constitute an allowable defense” which “may absolve the defendant of any criminal responsibility.” State v. Hutsell, 120 Wn.2d at 920; see also Fine and Ende, 13B Washington Practice: Criminal Law with Sentencing Forms § 3204 (2d ed.). An involuntary intoxication defense must be proved by the defendant by a preponderance of the evidence. State v. Riker, 123 Wn.2d 351, 367, 869 P.2d 43 (1994), citing State v. Gilcrist, 25 Wn.App. 327, 328–29, 606 P.2d 716 (1980).
In order to establish the basis for involuntary intoxication, Almos' testimony was crucial. At trial Almos testified that he:
- lives alone;
- had just recently been prescribed Ambien;
- had taken Ambien as prescribed each night for almost a month without any complications that he was aware of;
- took his Ambien as directed the night of the violation;
- went straight to bed after taking the Ambien;
- does not remember ingesting any additional Ambien that night;
- did not drink any alcohol or take any drugs that night;
- does not recall anything he did after going to sleep until the next day when he was being dropped off at home by the trooper;
- when he entered his bedroom upon returning home, his Ambien medication was spilled all over his nightstand and floor; and
- he called his doctor right away and hasn't taken Ambien since the incident.
Almos' Ambien prescription contained a warning that “sleep activity may occur. If anyone tells you that you've engaged in sleep activity, stop taking this medication and call your doctor immediately.” Almos' prescription was admitted into evidence so that the jury could consider the prescription date along with the warning clearly indicating if there were a problem with sleep activity, Almos would need to be told by someone about his sleep activity because he would not remember it. The jury instruction for involuntary intoxication read as follows:
Involuntary Intoxication Instruction No. 9
Involuntary intoxication is a defense to a charge of driving under the influence if:
- the defendant consumed drugs by force or fraud; or
- is mistaken as to the nature or character of the intoxicant.
The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true. If you find the defendant has established this defense, it will be your duty to return a verdict of not guilty. State v. Hutsell, 120 Wn.2d 913 (1993), Cf. Steffen v. Department of Licensing, 61 Wn.App. 839 (1991).
Involuntary Intoxication Instruction No. 10
The defense of involuntary intoxication does not remove from your consideration the question of whether the state has proven the elements of a crime. You should not consider the defense of involuntary intoxication unless you first find beyond a reasonable doubt that the state has proven the elements of the crime of driving under the influence.
Dr. Julien testified about how Ambien affects the brain and how someone could unconsciously ingest additional Ambien. Dr. Julien referred to a number of studies about the phenomenon. Together, Almos' and Dr. Julien's testimony formed the basis for the involuntary intoxication instruction. Next, the defense needed to lay the foundation for its automatism defense.
Although the legislature has the authority to create a crime without a mens rea element, even such strict liability crimes require a certain minimal mental element, or volition, in order to establish the actus reus itself.
State v. Deer 158 Wn.App 854 (2010). Automatism, which eliminates the actus reus, is also a defense to any crime, unless it was induced by voluntary intoxication.
Dr. Julien opined that the WSP toxicology report revealed a zolpidem level so high that Mr. Almos was not capable of performing a volitional act. His expert testimony explained different levels of consciousness, how memories are formed, what is required by the brain and body to form a volitional act, and how it is possible for an individual to engage in a physical act without any mental capacity or awareness of that act. Dr. Julien's expertise was crucial for laying the foundation for automatism. The jury was instructed as follows:
Automatism Jury Instruction No. 11
Automatism is a defense to a charge of driving under the influence if the defendant acted unconsciously, without knowing the nature of his act. The defendant has the burden of proving this defense by a preponderance of the evidence. Preponderance of the evidence means that you must be persuaded, considering all of the evidence in the case, that it is more probably true than not true. If you find the defendant has established this defense, it will be your duty to return a verdict of not guilty. State v. Utter, 4 Wn.App 137 (9171); State v. Deer 158 Wn.App 854 (2010).13
Automatism Jury Instruction No. 12
The defense of automatism does not remove from your consideration the question of whether the state has proven the elements of a crime. You should not consider the defense of involuntary intoxication unless you first find beyond a reasonable doubt that the state has proven the elements of the crime of driving under the influence.
After summarizing the evidence of involuntary intoxication and automation, I reminded the jury of the discussion during voir dire about when someone should be found criminally culpable and in what circumstances prosecution should follow. I reminded the jury that Almos' Ambien prescription contained a warning that “sleep activity may occur. If anyone tells you that you've engaged in sleep activity, stop taking this medication and call your doctor immediately.”
I asked the jury to consider how Almos could have guarded against sleep activity when he wouldn't know about the sleep activity unless someone told him. I wondered why zolpidem is still permitted to be used in the United States in light of the overwhelming medical research documenting sleep activity that zolpidem users may not be able to prevent. Without any way to guard against sleep related activity, it seems that the culpability should not rest with Almos or any other individual who took zolpidem as directed and went to sleep.
The jury found Almos not guilty of DUI. After the trial, several jurors expressed concern about the side of effects of zolpidem and how frequently zolpidem is prescribed in the United States. Together we wondered why this product was on the market at all. Perhaps these concerns and the question of culpability should be directed to the United States Food and Drug Administration, the agency responsible for protecting the public health by assuring the safety, efficacy and security of human and veterinary drugs.14
Sheri Pewitt, JD, MBA, enjoyed working as a public defender with Snohomish County Public Defender Association for several years. She is currently taking some time off and may move to private practice in the New Year. She can be reached at firstname.lastname@example.org.
1. Almos is a fictional name I gave to my client, who reviewed the article and gave me permission to discuss his case but not to use his real name. Records suggest “Almos” is Hungarian in origin and means sleepy.
2. U.S. Department of Health and Human Services. Federal Drug Administration. NDA 19908 027 FDA approved labeling 4-23-08, http://www.accessdata.fda.gov/drugsatfda_docs/label/2008/019908s027lbl.pdf (accessed August 16, 2012).
3. “2010 Top 200 Generic Drugs by total prescriptions,” Drug Topics, Voice of the Pharmacist, drugtopics.com (June 2011), http://drugtopics.modernmedicine.com/drugtopics/data/articlestandard//drugtopics/252011/727243/article.pdf (accessed August 13, 2012).
4. Highlights of Prescribing Information. (Bridgewater, NJ: Sanofi-Aventis, May 2012) http://products.sanofi.us/ambien/ambien.pdf (accessed August 16, 2012).
5. “User Reviews and Ratings – Ambien Oral.” Web MD, webmd.com http://www.webmd.com/drugs/drugreview-9690-Ambien+Oral.aspx?drugid=9690&drugname=Ambien+Oral&pageIndex=2&sortby=3&conditionFilter=-500 (accessed August 16, 2012).
6. U.S. Department of Health and Human Services. Federal Drug Administration. FDA requests label change for all sleep disorder drug products (March 14, 2007) http://www.fda.gov/NewsEvents/Newsroom/PressAnnouncements/2007/ucm108868.htm.
7. AmbienCR Prescribing Information. Sanofi-Aventis http://products.sanofi.us/ambien_cr/ambienCR.html (accessed August 16, 2012).
8. JS Poceta, “Zolpidem ingestion, automatisms, and sleep driving: a clinical and legal case series,” Journal of Clinical Sleep Medicine 7, no. 6 (2011): 632-638, http://www.aasmnet.org/jcsm/ViewAbstract.aspx?pid=28371
9. Dr. Julien's CV is available at http://www.drjulien.com.
10. Christopher Daley, Dale E. McNiel, and Renee L Binder, “'I Did What?' Zolpidem and the Courts,” The Journal of the American Academy of Psychiatry and the Law 39, no. 4 (2011).
11. Robert M. Julien, and Kara Dicecco, “To Intend or Not Intend: That is the Question,” The Journal of Legal Nurse Consulting 21, no. 4 (2010).
12. The state argued that the question of strict liability for DUI was already addressed by Division 1 in State v. Tang, 75 Wash App. 473 (1994). But Tang doesn't trump Kaiser v. Suburban Trans. System, 65, Wn 2nd 461 (1965). In Kaiser v. Suburban Trans. System the Washington Supreme Court outlines the requirement that a criminal act prohibited by the legislature require a voluntary act.
13. State v. Deer is additional support for the Automatism jury instruction and was not cited at the time of the trial.
14. U.S. Department of Health and Human Services. Federal Drug Administration. About the FDA, What We Do, http://www.fda.gov/aboutfda/whatwedo/default.htm (accessed August 18, 2012).