More and more often, DWI defense lawyers being are faced with clients who insist they took their prescribed Ambien (generic: zolpidem), went to bed, and woke up in jail for DWI. Reports of zolpidem patients getting up in the night and eating and having no memory of the event are common. Zolpidem is not the only drug that can lead to involuntary sleep behaviors, but it has gotten a lot of press in the last few years because of this phenomenon.
The condition of involuntary sleep behavior (sleep walking, sleep eating, sleep driving, etc.) is called somnabulence.
This is a semi-conscious condition where the conscious mind is still asleep, but the person partially wakes up, eyes open, and engages in what appears to others as wakeful behavior. The patient can talk, cook, eat, have sex, and drive a car. The driver in this condition is often considered DWI if this is a result of taking medication.
The medicolegal conundrum comes from a person being charged with a crime when they did nothing purposefully other than take their prescribed medication and go to bed. The behaviors described above are involuntary. Law enforcement advocates argue that DWI is a “strict liability” crime and does not require intent or even knowledge.
DWI defense lawyers argue that the physical behavior itself is not voluntary, which is a different question than whether it is intentional.
Texas courts have historically had little sympathy for patients who attempt to claim this defense. Most rulings hold that a patient is responsible for their condition as long as they knew they were taking the medication in question. Defense lawyers who specialize in DWI cases have had limited success in defending these unfortunate cases. Some of these cases involve accidents in which people are injured. These cases are the most difficult.
A recent case of interest on this topic involved the late Senator Robert Kennedy’s daughter, Kerry Kennedy. She was acquitted by a New York jury on February 28, 2014.