San Jose Mercury News
by Tracey Kaplan
21 Aug 12
Like 44 million other Americans, Kevin Robertson popped an Ambien recently to help him sleep. Next thing he knew, he woke up in jail -- facing criminal charges from a non-injury crash in Santa Clara, including driving under the influence of a drug and resisting arrest.
Employing a legal strategy cropping up in courtrooms around the country, attorney Jennifer Redding argued he was "sleep-driving,'' a rare but recognized side effect of Ambien -- and the jury found him not guilty.
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The case puts the Bay Area spotlight on the controversial "Ambien defense,'' a strategy that's been tried in courts from Massachusetts to Texas to Orange County with mixed results. Outright acquittals like Robertson's are rare, but the argument has lead to plea bargains and lighter sentences -- as well to disbelief and convictions.
"The Ambien defense is happening all over the place,'' said Richard Uslan, a New Jersey attorney credited with winning a 2006 case, one of the first in the nation. "There is skepticism but that hasn't stopped attorneys from advancing it.''
The sleep-driving phenomenon surfaced in the mid-2000s after several crashes, including a widely publicized Ambien-related accident in 2006 involving Patrick Kennedy, the former congressman from Rhode Island and son of the late Sen. Edward Kennedy.
In 2007, the Food and Drug Administration warned that Ambien and 12 other insomnia drugs have the potential of causing rare "complex sleep-related behaviors" which may include "sleep-driving, making phone calls and preparing and eating food (while asleep)." The agency defined "sleep driving" as "driving while not fully awake after ingestion of a sedative hypnotic, with no memory of the event" and advised drug makers to place stronger labeling on their products.
In 2009, the Ambien strategy -- also referred to as the Zombie defense -- helped get a Fresno woman who fatally struck a mother of 11 children acquitted. Two years earlier, a judge found a Massachusetts lawyer who killed a man while sleep-driving not guilty.
"It's a legitimate thing -- it really does affect people,'' said Patrick Hancock, a San Antonio, Tx. attorney and former prosecutor who represented a flight attendant using an Ambien defense this spring. "Most people think it won't happen to them, but it can.''
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"Twelve members of the community were convinced he was not conscious when he drove the car and resisted arrest. He was essentially like a chicken with its head cut off.''
Regardless of what happens at the hearing, Robertson is certain of one thing -- he'll never take Ambien again.
http://www.mercurynews.com/crime-cou...w-faces-parole
