Ambien is called a sedative-hypnotic drug that is effective for inducing sleep as well as calming persons suffering from extreme anxiety. But it also produces sleepwalking, a potentially dangerous condition where you are engaged in a physical activity without full consciousness. It can also result in an even more dangerous activity called “sleep driving.”
Sleep driving is sleep walking but doing so while operating a motor vehicle. Sleep walking is a disorder that occurs more commonly during childhood but can be experienced by adults who take Ambien or other sedative-hypnotic drugs such as Lunesta or Sonata.
It occurs when you go from a deep sleep to a lighter stage or even wakefulness but not being fully aware of your surroundings, environment or activities. You often have no memory of any activity you engaged in and you are not responsive while so engaged.
The Food and Drug Administration (FDA) has recognized the phenomenon of sleep driving and defines it as “driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.” It even places warnings on the labels of these medications as well as in the paper guides included with the packaging.
List of Sedative Hypnotic Drugs
- Ambien, Ambien CR (zolpidem tartrate)
- Butisol sodium (butabarbital sodium)
- Carbtrital (pentobarbital and carbromal)
- Dalmane (flurazepam hydrochloride)
- Doral (quazepam)
- Edluar (zolpidem tartrate)
- Halcion (triazolam)
- Intermezzo (zolpidem)
- Lunesta (eszopiclone)
- Placidyl (ethchlorvynol)
- Prosom (estazolam)
- Restoril (temazepam)
- Rozerem (ramelteon)
- Seconal (secobarbital sodium)
- Silenor (doxepin hydrochloride)
- Sonata (zaleplon)
- Zolpimist (zolpidem tartrate)
Driving while under the influence of alcohol is unlawful, but so is operating a motor vehicle while under the influence of a drug, whether it is an illegal narcotic or a medication that was prescribed or was purchased over-the-counter1. Under California Vehicle Code Section 23152(a), the definition of “under the influence” is embodied in a California Jury Instruction2:
If your ability to exercise proper judgment and to make rational and reasonable decisions that a sober driver exercising ordinary care and caution would make is impaired by the drug or drugs you took, then you are driving unlawfully.
You can only be criminally prosecuted if you voluntarily engage in a criminal act such as drinking alcohol and then driving. It may be involuntary if someone slipped you a drug while you were unaware or spiked your nonalcoholic drink and then you drove before you became aware of its effects.
In the context of sleep driving, most people who take the sedative do not intend to drive but end up doing so anyway. They usually have no memory of getting in the car and driving until after they have been arrested for erratic driving, violating a traffic law or being involved in an accident. So then is taking a drug like Ambien with the full intent of going to bed but unintentionally driving a car an involuntary act that bars prosecution for driving under the influence?
This issue has been addressed by the courts and depends on a number of factors:
- The medication had a warning regarding sleep driving
- You were tested and found to have alcohol and Ambien in your blood
- The medication label or packaging also contained a warning about mixing alcohol and Ambien
- The dosage you took exceeded the prescription or recommended dosage
- You took the drug knowing you would be driving a vehicle
- You were drowsy or not completely awake while driving after having taken the drug the night before you drove
- You had previously experienced sleep walking or sleep driving
Your attorney may be able to successfully argue that you lacked the necessary intent or that your actions were involuntary if you were asleep in your bed but arose in a sleep walking state, took your car keys and drove. If you were in pajamas or appeared to have been obviously sleeping in bed before driving, this could be a viable and credible defense that could prevail at trial or offer you a satisfactory plea agreement.
Anyone who is charged with a DUI, whether it is alcohol or a drug-related, will receive a temporary 30-day license to replace their regular license, provided you had a valid license. You have only 10-days to request a Per Se or administrative hearing before the DMV to contest the pending suspension of your driving privileges for 6-10 months for a first offense or longer if you refused chemical testing or have a prior DUI conviction within the past 10 years.
If you were charged for being under the influence of a drug like Ambien, the issues that are presented at your hearing are as follows:
- Whether the police had probable cause to stop your vehicle
- Whether you were operating a motor vehicle while impaired
- If you took the Ambien voluntarily
- If you were aware of the FDA warnings regarding Ambien and sleep driving
- Whether you were driving voluntarily or involuntarily
- Whether you understood the implied consent warning
As indicated herein, even if you were aware of the sleep driving potential but were actually in bed before the sleep walking and the subsequent driving occurred, and you took the recommended dosage with no alcohol but ended up driving nonetheless, you may have a reasonable argument for having your normal driving privileges restored and avoiding license suspension.
If convicted of driving under the influence of a drug like Ambien, you face the same penalties as drunk driving. For a first offense, the penalties are as follows:
- 2 days in jail
- Alternative sentence of community service
- 2 additional days in jail if you refused chemical testing
- Fine of $390 up to $1,000
- Additional expenses for court costs and various assessments
- Summary or informal probation of 3 years up to 5 years
- 3-months participation in a DUI program
- Loss of license for 6-10 months
- Restricted license eligibility unless you refused testing
- 0ne-year loss of license if testing refused
You will also experience a significant increase in your auto liability insurance premiums for a few years. Of course, the penalties increase dramatically with each subsequent conviction.
- Question: I had no intention of driving after taking Ambien but am being charged with a DUI. Do I have a credible defense?
Response: Possibly, but it depends on all the facts and circumstances of your particular case. Our attorneys will want to examine your medication bottle and packaging, look at the results of your blood test if applicable, the police report regarding your arrest, any videos taken of you and your medical history. We may be able to demonstrate that you were sleep driving but did so involuntarily.
- Question: I have no recollection of being asked to take a blood or breath test but the officer indicated I refused testing. Can I get my license back?
Response: This issue needs to be addressed at your Per Se hearing. You only have 10 days after your arrest to request your hearing and being given your temporary license to request the hearing or you waive it so you need to contact our office immediately. One of our attorneys can address the issues of your state of mind, the medical characteristics of Ambien while someone is sleep walking or driving and whether you were capable of understanding the implied consent warning that the officer was required to give you. We may need medical testimony to support your defense.
- Question: How can a DUI attorney help me?
Response: A DUI case can involve multiple issues and defenses that only an experienced DUI attorney can address. Aizman criminal defense lawyers have successfully handled DUI matters involving drugs alone, such as Ambien. Because you face significant penalties that can affect your license, job, freedom and other consequences, you need the advice and representation of a lawyer who can negotiate a reasonable outcome for you or take your case to trial.
We can also represent you at your Per Se hearing before the DMV. If we are successful there, we can usually get your criminal DUI case dismissed or negotiate it to a non-DUI offense.
If you have been arrested and would like to learn more about how attorneys charge.
If you want to understand why its important to have an attorney represent you.
If you would like to discuss a pending case with an attorney contact the Aizman Law Firm at 818-351-9555 for a free confidential consultation.
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- California Vehicle Code 23152(f) It is unlawful for a person who is under the influence of any drug to drive a vehicle. [↩]
- CALJIC 16.831-Your physical or mental abilities are impaired to such a degree that you no longer have the ability to drive with the caution characteristic of a sober person of ordinary prudence under the same or similar circumstances [↩]