Socialite Kerry Kennedy, daughter of the late Sen. Robert Kennedy and former wife of New York Governor Andrew Cuomo, was allegedly involved in an impaired driving accident on July 13, 2012, in Westchester County, New York.  A witness reported to police that she had no control over her vehicle has she was driving down the highway.  A subsequent blood analysis revealed levels of Zolpidem, which is the sleeping drug marketed as Ambien.  Kennedy claims she is not legally responsible because she took Ambien by mistake instead of her thyroid medication.  

"Lame excuse", you say?  I call it a great defense.  In fact,  fully expect it to be successful, since there were apparently no other  impairment-causing substances reported in her system.  I have gotten impaired-driving charges dismissed the same way. 

These so-called "sleep driving" cases have become more prevalent in recent years as more people reach for the powerful sleeping drug.  People with Ambien prescriptions often have other prescribed medications.  Accidents happen, and so the wrong pill can be swallowed.  Persons awake while on Ambien are often described as being in a hypnotic trance.  When this occurs, the defense of "involuntary intoxication" may be viable.  After all, it is not much different than the person who becomes impaired after being "slipped" a drug in their drink.  You wouldn't hold that person responsible if they suddenly became impaired while driving home.

Another way to attack it is to show that the act of driving was "involuntary" because of the effects of Ambien.  This
defense could be asserted even by drivers who intentionally became drunk but later took Ambien and somehow made it behind the wheel.  It is similar to asserting that a crime occurred while sleep walking.  In fact, the Supreme Court of Oregon recently ruled, in Oregon v. James Robert Newman, a 6-0 decision, that involuntary driving due to a sleep walking disorder is a viable defense.   However, Wis. Stat. § 939.42(1) provides that an intoxicated or drugged condition is a  defense if it is involuntarily produced and renders the actor incapable of distinguishing between right and wrong in regard to the alleged criminal act at  the time the act is committed.  It would seem to include this fact pattern.

A  variation of this defense, which is more difficult case to make, is the "sleep drinking" defense.  In that scenario, the driver agrees that there was impairment due to alcohol but maintains that the drinking that caused the impairment was involuntary due to the hypnotic effect of Ambien.  This could also be framed as involuntary intoxication.   I have yet to see that defense play out.

These defenses are far different from the defense of "voluntary intoxication", wherein a defendant admits he/she
purposely became impaired but claims the impairment was so great that it rendered him/her incapable of forming the "intent" necessary to commit the crime.  That defense is now being played out in the appeals of Martin Heidgen, Taliyah Taylor and Franklin McPherson, also in the state of New York.  These defendants were all convicted of charges stemming from fatal crashes while driving in the wrong lane while drunk.  The law they were convicted under required that they acted with "depraved indifference to human life."  They claim their level of impairment prevented that mindset.  Like the defense of voluntary intoxication generally, that is a very tough sale, if you ask me.

I am a lawyer licensed in the State of Wisconsin and Minnesota.  I regularly practice in the field of OWI/DWI/DUI Defense.  However, none of my commentaries are ever meant to be legal advice.

When you go to traffic court for a first-offense OWI, or any another "forfeiture case",  scheduled in a Wisconsin circuit court, you do not have an automatic right to a jury trial.  In La Crosse County, but certainly not all Wisconsin counties, the presiding judge will warn the audience that, for these types of cases, a request for a jury trial must be made in writing and the jury fee paid within 10 days of pleading not guilty, or you will only have the right to a court trial (trial to the judge).  In the La Crosse County Circuit Court, if you do plead not guilty, or even if the judge enters a not-guilty plea for you, the next thing they do is order you to meet with the District Attorney's Office, for what is called a "pretrial conference."  That meeting will almost always take place after the 10-day limit to request a jury trial and pay the jury fee has passed.  You may not even know whether you want to go to trial until you know what the DA is willing to offer.  You will simply have to make the request and pay the fee--OR which may now be an option (thanks to me, pat, pat), ask for a continuance to allow you to speak with the prosecutor before the not guilty plea is entered.
  
In a recent OWI 1st case in La Crosse County, I was hired after the individual attended the initial appearance and pretrial conference.  At the initial appearance, the judge asked him/her whether he/she wanted to speak with the La Crosse County DA's attorney about a plea offer.  When he/she said "yes", the judge entered his/her plea for him/her, which he/she did not catch or understand.  He/she was then ordered to speak with the DA, but not until after the 10-day period.  I was retained after the pretrial conference, and I immediately filed a request for a jury trial and paid the fee.  A jury trial was scheduled.  However, this resulted in the La Crosse County Assistant DA filing a motion to strike the jury trial on the grounds that it had been waived because the request and fees were not filed and paid within 10 days.  

The DA's motion was denied, but not for the reasons you might think.  In researching the issue, I found that the statute that deals with initial appearances in forfeiture cases requires some things:  Wis. Stat. section 345.43  (1) states: "The defendant shall be informed of his or her right to a jury trial in circuit court  on payment of fees required by  s. 345.43  (1) . "  Further, Wis. Stat. section 345.43  (1) states: "If the defendant appears in response to a citation  . . . the defendant shall be informed that he or she is entitled to a jury trial and then asked whether he or she wishes presently to plead, or whether he or she wishes a continuance.  If the defendant wishes to plead, the defendant may plead guilty, not guilty or no contest."

I obtained a transcript of the initial appearance.  The transcript showed that the audience members at the initial appearance were warned they must request a jury trial.  (Arguably, that should have carried the day for my client, because there was no way to prove my client was present at that time, and he/she was not personally told that or asked whether it had been heard.)  However, the transcript clearly showed that no one was asked whether they wished to have a continuance.   City  of Madison v. Donohoo,  118 Wis.2d 646, 652-53 (Wis. 1984), I further discovered, makes that was mandatory.  The Judge hearing the DA's motion ruled that this was a defect at the initial appearance, and he denied the motion.  Furthermore, at every initial appearance to since, the Judge now  
specifically informs the audience members that they may request a continuance before entering a plea.

Before this fiasco, if you asked for a continuance in La Crosse County Traffic Court, the Judge would usually enter your plea for you and tell you to come back after meeting with the DA.  If you came back later and asked for a jury trial, it was "too bad", you only get a court trial.  Now, when you attend the initial appearance in a forfeiture case, you can ask for a continuance before entering a plea.   That is the key.  Because, if you enter the plea, or let the judge do it for you, and don't file the request or the jury fee within 10 days, the DA will be fighting to prevent you from having your jury trial.

There is a lot to be learned from this situation, not the least of which is get an attorney before you do harm to your case.  At Dyer Law Firm, LLC, we will find a way to get to get results.  While doing so, we may even expand the rights of everyone else.