In my last post, “Ambien, Sleep Driving and DWI,” I commented on the FDA’s push to label various sleep medications with warnings about the potential dangers of “sleep driving”. I also mentioned that this lent some validity to the recent spate of sleep driving defense claims we have heard on DWI cases.

But wait, in Texas, intent is not an element of DWI. Section 49.11 says there is no mental state necessary for the State to convict on DWI charges. And Section 49.10 precludes the defense of entitlement to use a drug, whether prescription, over the counter or alcohol. (That means that even though a physician prescribed you the medication, if you knowingly took it and then unintentionally became intoxicated, you have no defense.)

So how is it that the use of Ambien, or any other sedative-hypnotic, could provide a defense to DWI under Texas Law?

After all, the reason there is no intent required for a DWI conviction becomes clear upon reflection… If folks charged with DWI were allowed to, they could argue they had no intent to drive while intoxicated. And in fact, there proof might lie in their very intoxication itself.

(Testimony from the person arrested for DWI: Yes, I drove to the bar. And yes, I knowingly ordered the drinks and consumed them. But after I became intoxicated, I lost the normal use of my mental faculties [the very definition of intoxication for DWI], and plum forgot my original plan to take a cab ride home.)

But the Ambien sleep driving defense does not assert a lack of intent as its basis…but a lack of voluntariness instead. Here’s the difference:

Assault can be loosely defined in Texas as bodily contact that causes the slightest amount of pain to another individual. Yes, pushing and shoving, when someone says ouch, can technically meet the definition of Assault. But the defendant need not intend the harm, only the pushing and shoving.

But say for example someone takes some medication, and has a bad reaction to it, perhaps violently flailing their arms around in some sort of an epileptic like fit. Perhaps they come into contact with someone else, who is injured by this. The reason (in my admittedly unlikely hypothetical) that they would not be guilty of assault is that they did not voluntarily cause the contact in the first place.

Well, that’s also the basis for the sleep driving defense. The new warning labels being required by the FDA on sleeping pills, show us that taking the drug can make a person involuntarily drive their vehicle. 

And while the State need not prove a person intentionally or knowingly became intoxicated, they still must show that the act of operating the motor vehicle in a public place was voluntary.

The Food and Drug Administration announced today that it was requesting drug companies to include new warnings on some sleeping pill bottles about “complex sleep-related behaviors, which may include sleep-driving. Sleep driving is defined as driving while not fully awake after ingestion of a sedative-hypnotic product, with no memory of the event.” (FDA press release here.)

You may have noticed the recent advertising blitz trumpeting the various benefits of certain sleeping pills, all to help you induce or maintain a good night’s sleep.

You probably also remember last year’s news about Congressman Patrick Kennedy’s low speed car accident, where he claimed…

…that he was apparently disoriented at the time of the crash after taking the prescribed amounts of a sleep aid and an anti-nausea drug.

"I am deeply concerned about my reaction to the medication and my lack of knowledge of the accident that evening." he said.

As Anderson Cooper on CNN noted the next day:

Some people are probably skeptical that a popular drug like Ambien can trigger the kind of behavior attributed to Patrick Kennedy.

What behavior was that?

The report said when the officer approached Kennedy he noticed his "eyes were red and watery, speech was slightly slurred, and upon exiting his vehicle, his balance was unsure."

Those are the classic signs of DWI, found in almost every police report.

And now we find out that it’s not just anecdotal. There is so much scientific evidence now that this can and actually does happen that the FDA wants drug manufacturers to provide warnings for consumers to that effect. 

The drugs include Ambien, Halcion, Lunestra, Seconal and Sonata as well as the lesser known Butisol Sodium, Carbrital , Dalmane, Doral, Placidyl, Prosom, Restoril, and Rozerem.