DUI defense attorneys across the country are encountering clients arrested for driving under the influence of drugs — but who do not recall driving. The common thread appears to be that the last thing they recall is taking prescription sedatives of some type and falling asleep. There have been reports of sleep walking and "sleep driving". And, of course, police and prosecutors have scoffed at this latest "defense lawyer trick"…just as they scoffed at mouth alcohol problems, chemical interferents on the breath and radio frequency interference – before breathalyzer manufacturers quietly began installing mouth alcohol detectors, interferent detectors and RFI detectors on their machines) .
Does "sleep driving" exist? Well, consider the following press release from the U.S. Food and Drug Administration:
FDA Requests Label Change for All Sleep Disorder Drug Products
For immediate release.
The U.S. Food and Drug Administration (FDA) has requested that all manufacturers of sedative-hypnotic drug products, a class of drugs used to induce and/or maintain sleep, strengthen their product labeling to include stronger language concerning potential risks. These risks include severe allergic reactions and 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.
What is the legal significance of all of this? Well, there are two components to a crime: the guilty mind (mens rea) and the guilty act (actus reus). As for the mental element, unlike most crimes drunk driving is a strict liability offense: it is categorized as a general intent offense, and the lack of specific intent to drink too much and drive is not a defense. But an underlying requirement of all offenses is that there be a volitional physical act. In other words, although there does not need to be an intent to do a specific act, there must be conscious control of that act. An epileptic, for example, would not be criminally charged with assault if the incident occurred during a seizure: even if there had been a preexisting intent, there was no conscious control.
So….If you take a prescription such as Ambien or Restoril to help you sleep, you may well wake up in a jail cell falsely charged with DUI. (For a list of the 13drugs which the FDA has found may cause "sleep driving", see the FDA's "Sleep Disorder Drug Information".)