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Why the Kerry Kennedy Ambien DUI case couldn't happen in Florida

Posted by Tom Hudson | Feb 28, 2014 | 2 Comments

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Ambien (Zolpidem)

It was announced this morning that Kerry Kennedy, daughter of the late Sen. Robert F. Kennedy, was acquitted of the charge that she drove in New York State while under the influence of Ambien.  It was an interesting trial, because it was the rare DUI case where the defendant did not dispute that she was impaired, AND did not dispute that she was driving. Her defense was that she had accidentally taken an Ambien, thinking that it was her thyroid medication.

This was a tough case for the prosecutor, because the thyroid medication really did look like her generic Ambien. So it's no surprise that she was found not guilty.  The interesting thing is that it couldn't have happened at all in Florida.  That's because it's not illegal to drive in Florida while under the influence of Ambien.

It's true.

Florida's DUI law states that there are three types of substances whose impairment will allow you to be charged with DUI:

  • Alcohol,
  • Any chemical substance set forth in section 877.111, or
  • Any substance controlled under chapter 893.

Strangely, Ambien is not included in either of the latter two classifications.  Just by a legislative oversight, it is not illegal to drive in Florida while under the influence of this powerful sleeping medication.

I've handled perhaps a half dozen Ambien DUI cases in the past ten years, and every one of them was dismissed, once I pointed out the omission.  In most Ambien cases, the person didn't intend to drive anyway. Typically, the defendant was out at dinner, went home, took his medication and went to bed.  Later, he wakes up in jail.  The reason for this is that Ambien is well-known to cause sleepwalking.  Some Ambien patients have gotten out of bed and cooked full meals, and eaten them--while sound asleep.  Others have gotten in the car and driven long distances without incident.

Because Ambien is a powerful sleeping medication, and not one that gives a pleasant "high," it does not seem likely that we can expect a rash of sleep-driving cases in Florida.

But if it did happen, it wouldn't be a crime.

About the Author

Tom Hudson

Known nationwide as a leading DUI defense lawyer, Tom has tried over 350 jury trials, including numerous death penalty cases. He now limits his criminal practice to DUI defense. His civil practice is devoted to getting fair compensation for the victims of negligence. Tom has attained multiple verdicts and settlements in excess of $1 million, and is a Life Member of the Multi-Million Dollar Advocates Forum. In 2008, Tom Hudson passed the National Board Certification Test for DUI Attorneys in Honolulu, Hawaii. NOTE: The State of Florida does not yet recognize DUI defense as a Specialty.

Comments

Heather Reply

Posted Feb 23, 2016 at 08:02:51

Tom,
What if you had a patient in a sleep lab and they took an ambien, then decided a hour later they wanted to leave? Could they get a DUI?

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Board Certification in DUI Defense

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Tom Hudson passed the National Board Certification Examination (written and oral) in Honolulu in 2008, and was recertified in 2013. He was one of the first 50 lawyers granted national board certification in DUI Defense, and is nationally recognized as an authority in DUI law.

Why We're Different

Board Certification as a DUI Specialist by the National College for DUI Defense. Formal NHTSA Certification as an Instructor of the Standardized Field Sobriety Tests given by police in DUI cases. Formal training as a NHTSA Drug Recognition Evaluator. ("Drug Evaluation & Classification") Formal training to operate the Intoxilyzer 8000, Florida's official breath test instrument. Extensive experience in teaching other attorneys how to handle DUI cases. Hundreds of jury trials both as defense lawyer and as prosecutor. Florida's State Delegate to the National College for DUI Defense.