The Ambien Defense (getting away with murder…)

A man with insomnia takes a prescription dosage of Ambien, America’s top selling sleep aid, and goes to bed, hoping for his first night of uninterrupted sleep in months. He wakes up in a jail cell with his arm in a sling and the side of his face throbbing. He stands, panicking, and paces around his cell, alternating between banging on the thick metal door and trying to awake from what he frantically prays is just a nightmare. But soon enough he learns it is no nightmare, but the aftermath of his arrest for manslaughter. Over time, he learns the facts of his case. That he sped down a one way street near his home, driving in his pajamas without a wallet, and causing a head on collision. At the scene of the accident, he appeared dazed and intoxicated, but responsive to basic questions, albeit in a meandering sort of way. His blood test revealed a high dose of Ambien – consistent with his prescription if he is to be believed about when he took the drug. He also learns the other driver had been killed. To the police, his case was one of straight intoxication. He chose to take the pills. He chose to drive. But to this defendant and many others the so-called “Ambien Zombie” phenomenon raises an entirely different issue than one of “drunk driving”. But to what extent Ambien “sleep walking” or “unconsciousness” is a defense to a crime is entirely unclear. Of course, a man who rolls over in bed and inadvertently strikes his wife is not guilty of assault – but can this concept apply to a person who puts on shoes, picks up car keys, walks outside, and drives a car?

As plaintiffs suffering harm from Ambien-related sleepwalking sue its parent company, Sanofi-Aventis, (See http://www.anambienattorneyforyou.com/ambien-lawsuit.html) courts are wrestling on whether and how to punish an “Ambien Zombie” if the phenomenon is indeed real.

Many, many people know it is real. A brief google search reveals hundreds of nightmare stories resulting from Ambien, from people jumping out of windows, to violently assaulting spouses, and, most commonly, to highly dangerous sleep driving:

– Milton Shobe said his mother, Doris, 62, was taking Ambien. She was found dead in her yard in November. She froze to death, and her family believes she had been sleepwalking.

– Congressman Patrick Kennedy had a widely-publicized automobile accident at the U.S. Capitol Complex in Washington, D.C. on May 4, 2006. He said he had taken Ambien and an anti-nausea drug, and had no recollection of the accident. This closely matches the symptom set attributed to sleep-driving after taking Ambien.

– A Florida housewife ate everything in sight, including raw eggs, uncooked canned vegetables and loaves of bread in one evening, and she did this multiple times. Her husband would find her in the morning with her mouth gorged with food and shovel it out of her mouth.

– A woman from Texas took Ambien one night and woke up on a cement jail floor the next day only to discover she was arrested for driving her car in a zombie like state and crashing into other parked vehicles. She now faces criminal charges. (Examples from http://www.anambienattorneyforyou.com/ambien-lawsuit.html)
The drug company itself appears to recognize the problem, as the instructions for Ambien, which were approved by the FDA and are dated August 29, 2005, advise that:

“A variety of abnormal thinking and behavior changes have been reported to occur in association with the use of sedative/hypnotics. Some of these changes may be characterized by decreased inhibition (e.g., aggressiveness and extroversion that seemed out of character), similar to effects produced by alcohol and other CNS depressants. Visual and auditory hallucinations have been reported as well as behavioral changes such as bizarre behavior, agitation, and depersonalization. Amnesia, anxiety and other neuro-psychiatric symptoms may occur unpredictably.”

Recently, a federal prosecutor was persuaded that Ambien played a role in a nationally known case involving a man who tore off his shirt and loudly threatened to kill himself and others on a flight from North Carolina to London. Because the prosecutor did the work to consider, and eventually accept, that the behavior had occurred because of Ambien, and in an unconscious state, British businessman Sean Joyce served five days in jail instead of up to twenty years. ( Joyce had also drank two glasses of wine with the Ambien, which violates its indications). But not all prosecutors warm up to “psychological” defenses – valid or not. Rather, they view a sleepwalking defense as more like the notorious “twinkie” defense – a defendant’s ploy to evade responsibility. As for the criminal law itself, some of the relevant traditional rules are:

“Voluntary Intoxication”, that is, when a person knowingly takes a substance that causes the person to become intoxicated, is not a defense. A jury instruction used in a 1990 Virginia case read:

Voluntary Intoxication is no excuse for a crime even though such crime even though such intoxication may have produced temporary insanity. A person cannot voluntarily make himself so intoxicated as to become on that account irresponsible for his conduct during such intoxication. Her may be perfectly unconscious of what he does and yet be responsible. Boblett v. Commonwealth, 10 Va. App. 640 (1990).
One exception to this general “voluntary intoxication” rule is that extreme intoxication can negate a specific intent such that someone who inexplicably stabs a stranger to death while whacked out on LSD might be guilty of second degree murder instead of first degree murder because he was incapable of forming premeditation.
(2) “Involuntary Intoxication”, which normally occurs when someone is drugged without his or her knowledge, is a complete defense to a crime provided it is believed that intoxication produced the crime. Another breed of involuntary intoxication occurs when someone takes prescription medication voluntarily, and according to the prescription, and commits a crime because of an unpredicted reaction. A third form, recognized only in some states, is when someone voluntarily takes a drug, either without a prescription or in violation of the prescription, and engages in behavior that could not reasonably have been predicted. For obvious reasons, most states disfavor this third form as a complete defense, because it allows a deliberate drug abuser to escape liability for his intoxicated actions – albeit his unforeseeable ones. In most states, abuse of a prescription drug makes intoxication “voluntary.” In Virginia, courts have instructed juries as follows:
Involuntary intoxication is a complete defense to ___________________. If you believe that the defendant was unwillingly and unknowingly intoxicated by the fraudulent contrivance of others, by casualty, or by the error of his physician, and that the intoxication so unsettled his reason as to prevent him from exercising his own free will, then you cannot find him guilty.

3. “Unconsciousness/sleepwalking” is generally a complete defense to a crime. This defense follows the same rules as stated above – if the defendant is at fault for causing the sleepwalking state, it is not a defense. If the sleepwalking occurred without fault, it is a defense. See Va. Practice Criminal Offenses and Defenses, Ron Basigal, 2009; Greenfield v. Commonwealth, 214 Va. 710 (1974).
If it seems impossible to fit the Ambien Zombie phenomenon into one of these legal categories, that’s because it is. On one hand, the defendants in these cases voluntarily take a drug whose warnings mention the possibility of sleepwalking and even out-of-character aggressiveness. Why is it not simple voluntary intoxication, and thus, no defense? On the other hand, while a reasonable person might expect to sleepwalk to the bathroom or the refrigerator, who expects to sleepwalk on a midnight drive? As for unconsciousness, it applies if the Ambien user is did not voluntarily cause the unconsciousness, but what does that mean in this context? The entire purpose of taking Ambien is to produce unconsciousness, right?

In a 2008 case in Alexandria, Virginia, a defendant raised the defense of “unconsciousness” when, after taking an overdose of un-prescribed Ambien at home, he severely injured a pedestrian by recklessly crashing his car into her in a cul-de-sac a quarter mile from his home. The police on the scene all agreed Brian Patrick Riley was incoherent. He wore his sleep-clothes in thirty degree weather, and had no logical reason to be on the road at all. After hearing expert testimony, the Court likened the case to one of voluntary intoxication and convicted Riley. In upholding the Court’s decision in Commonwealth v. Riley, the Virginia Supreme Court found that the Riley had not proven he had actually been sleepwalking at the time of the offense, and likewise likened the case to one of voluntary intoxication. Thus, in Virginia, like in most states, the law on the Ambien Zombie phenomenon is still entirely unclear. Is a true Ambien sleepwalker guilty for his acts, or not?

While the law is not clear, there are certain factors courts appear to consider: (1) was the Ambien taken pursuant to the prescription? (2) was the Ambien mixed with alcohol, an illegal drug, or a drug forbidden by Ambien’s warning label? (3) did the defendant have any prior Ambien sleepwalking instances to put him on notice of the sleepwalking risks?

Thus, a new Ambien user who takes the drug pursuant to prescription, in accordance with the prescription, and without other drugs or alcohol, has the best chance at acquittal based on unconsciousness for his sleep driving conduct. A defendant who exceeds or abuses the prescription and drinks alcohol with it, knowing Ambien has caused him to sleepwalk in the past, has a much tougher case.

Of course, most cases are somewhere in between.

Chris Leibig is a criminal defense attorney at Zwerling, Leibig, and Moseley in Alexandria, VA who handles Ambien related cases. See www.zwerling.com.

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