California Man Acquitted of DUI Charges Using “Ambien Defense”

With the recent case of Kerry Kennedy’s DWAI arrest so prominently in the news, and the allegation that her motor vehicle accident with a tractor trailer on I-684 was due to her taking an Ambien prior to the accident and falling asleep at the wheel, I read an interesting case out of Santa Clara, California this week. 45 year old ex-convict Kevin Robertson was arrested and charged with driving under the influence and resisting arrest in connection with a June 20, 2012 non-injury car accident in which he claims to have taken an Ambien to help him sleep, eaten dinner, laid down, and then woke up shackled to a chair in the police department. Tests showed no alcohol in Robertson’s blood, but due to a series of health problems, he was taking Morphine, Benadryl and Ambien, all of which were found in his blood.

Robertson’s lawyer employed the “Ambien defense”, also known as the “Zombie defense”, which has apparently been utilized in courts throughout the United States, with uneven results. In 2007, the FDA issued a warning that Ambien, along with twelve other insomnia medications, could cause “complex sleep-related behaviors”, including “sleep driving.” Sleep driving is defined as “driving while not fully awake after ingestion of a sedative hypnotic, with no memory of the event”. The agency also indicated that these behaviors could include making phone calls, preparing food and eating while asleep.

In Robertson’s case, the defense was quite successful, in that after a four day trial, the jury took less than one hour to acquit him of the charges. However, since Robertson was on parole, his problems weren’t quite over, since he could have been assessed 6 months in jail by the parole commissioner for a violation of the terms of his sentence. Fortunately for Mr. Robertson, the Santa Clara police and other witnesses failed to show up at his hearing, and the parole board commissioner dismissed the matter in eight minutes.

In 2009, the Ambien defense led to the acquittal of a Fresno, California resident who killed the mother of 11 in a fatal car crash, and two years previously, a judge determined that a Massachusetts attorney was not guilty in a sleep driving accident in which a man was killed. More recently, in San Antonio, Texas, flight attendant Julie Ann Bronson was charged in a DWI case in which she drank 5 or 6 glasses of wine, took Ambien, and then “sleep drove” her Mercedes convertible into a car occupied by a mother and her two children, one of whom was an 18 month old girl, who was severely injured in the accident. Bronson pled guilty and was sentenced by the jury (as permitted under Texas law) to only 10 years probation, when she could have faced as much as ten years behind bars. The presiding judge added on a six month jail term as part of the probation, believing that the sentence was too lenient.


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