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To Sleep or Not to Sleep? The DUI Ambien Defense

To Sleep or Not to Sleep? The DUI Ambien Defense

By:       David Katz, Esquire  &  Andrew Nickolaou, J.D.

            Even non-drinkers could be in danger of being charged with DUI in Florida.  If you are like the thousands of others who take prescription sleep medication like Ambien every year, you run the risk of a growing phenomenon of “sleep-driving” which could instantly land you in jail charged with drug related DUI and having no recollection of how you got there.

DUI Ambien and “Sleep Driving”

“Sleep driving” is defined by the FDA as “driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.”  Ambien and other popular sleeping medications are sedative-hypnotic products that can cause this condition.  Sleep driving while under the influence of Ambien occurs after you take the medication, go to sleep, unknowingly wake up (and start sleep-walking) and then drive a car.  It is a growing danger, as many people continue to suffer Florida DUI Ambien arrests.

Even though sleep driving has become a recognized phenomenon, it nevertheless may result in serious ramifications for you or your loved ones.  If you use Ambien or any other “sedative-hypnotic” medication and then drive, you may face a Florida DUI charge.

DUI Ambien….for real?

            In Florida, it is quite tricky to determine whether a charge of DUI can be upheld on the fact that you took prescribed sleep medication in a lawful manner, and then due to a side effect, involuntarily drove your vehicle.  To be charged with DUI under Florida Statute § 316.193, the State must prove that while driving or in the actual physical control of the vehicle, you were under the influence of alcoholic beverages, a chemical substance, or a controlled substance to the extent that your normal faculties were impaired.

Interestingly enough, under Florida Statute § 893.03, neither Ambien nor its main ingredient Zolpidem are listed as a controlled substance.  Thus, in theory, this element of the DUI charge cannot be proven.  Mixing sleeping pills with alcohol is dangerous to begin with, but combining the two and then driving could have catastrophic consequences.  If the State can prove, that you drove after taking Ambien and consuming any alcohol then the DUI charge could possibly be proven. 

FDA Recognizes DUI Ambien may be an “Involuntary” Act

In 2007, the FDA ordered drug companies that manufacture these types of drugs to warn users of the “sleep driving” side effect.  This warning comes in two forms: (1) on a clear label on the bottle, and (2) in a product medication guide that accompanies the prescription.

The fact that the FDA took that action is significant.  It demonstrates that this condition is involuntary which could arguably act as a defense to a Florida DUI charge.  A Florida DUI criminalizes the voluntary act of driving while under the influence.  It follows that if there is no voluntary act, then there is no criminal culpability.

The fact that sleep driving is involuntary is further corroborated by the evidence that surrounds a typical DUI Ambien arrest…those stopped are often only semi-clothed in sleeping attire, disoriented, and/or oblivious to the DUI investigation. But…

Certain Voluntary Acts Negate this Defense to a DUI Ambien Charge

Ignoring warnings or otherwise improperly using Ambien or other sedative-hypnotic products will invalidate this defense. Most of the cases that have been successfully prosecuted involve cases where the defendant:

  • Combined Ambien with other drugs and/or alcohol (despite the fact that a “label warning” advised against doing so), and/or
  • Exceeded the recommended dosage.

Similarly, many of those who have been arrested for Florida DUI Ambien include those who:

  • Suffer from the “next day” effect — a continued drowsiness after waking up from the drug-induced sleep, or
  • Took the drug before they got home, hoping it would “kick in” before bedtime.

The bottom line is this — be very careful when using these extremely potent sleep aids.  If you are taking Ambien or another prescription or over-the-counter sleep medication, always ensure that you are completely alert before driving.  It is also a good idea to hide your keys before going to bed.

To learn more information about DUI Ambien, we invite you to contact us. We offer free initial consultations and handle DUI’s in Orange, Osceola, Lake, Seminole, Volusia, Alachua, Baker, Gilchrist, Marion, Levy, Putnam, Clay and Flagler counties to conveniently serve you.

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David Katz

David Katz

David Katz is one of only 4 Board Certified DUI Defense Experts practicing in the State of Florida. David achieved recognition as a DUI Defense Expert in July of 2012 from the National College for DUI Defense, the only organizations accredited by the American Bar Association to award Board Certification in the area of DUI Defense. A founding partner of Katz & Phillips, P.A., David Katz is a former Assistant State Attorney and DUI / Intoxilyzer Lead Attorney with the Seminole County State Attorney’s Office. David has prosecuted cases in both Orange and Seminole Counties. Chosen by the Florida Prosecuting Attorney’s Association, David taught DUI trial skills to new prosecutors statewide. As the Seminole County Intoxilyzer Lead Attorney he received unique training and experience with the Intoxilyzer 8000, including access to the manufacturer of the device, which he now uses to aid in the defense of DUI cases. David has been the featured speaker at Continuing Legal Education Seminars focused on DUI Defense, lecturing to attorneys practicing DUI defense throughout the country. David is also the author or co-author of nine books on DUI defense including three Inside the Minds series books focusing on DUI cases. As a defense attorney David has focused his practice on DUI defense and has played a key role in the suppression of thousands of breath test results in Central Florida and surrounding areas, acting as the lead attorney in suppression hearings focusing on source code and machine malfunction issues. David is truly focused on his clients needs. He has received the 2012 AVVO Client Choice Award and the 2013 Client Distinction Award from Martindale-Hubbell. Further, David was recently featured in NEWSWEEK Magazines' 2012 Showcase of Leading Criminal Defense Attorneys. The only dedicated DUI defense attorney to be featured this year. PROFESSIONAL AFFILIATIONS: The National College for DUI Defense The National Association of Criminal Defense Lawyers The Florida Association of Criminal Defense Lawyers The Central Florida Association of Criminal Defense Lawyers The American Bar Association The Florida Bar Association The Orange County Bar Association The Seminole County Bar Association The Lake County Bar Association DUI is not recognized as a specialized area of law in Florida, therefore Mr. Katz is not certified as a Specialist by the Florida Bar.

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