DUI and the Ambien Defense in Florida
Ambien is the trade name for Zolpidem which is one of the most frequently prescribed sleep medications in the United States. Ambien is in a class of drugs called sedative hypnotics. Often referred to as “tranquilizers”, sedative hypnotic drugs have the effect of slowing down the bodies functions. Other drugs included in the sedative hypnotic category are benzodiazepines such as Xanax, Valium, Ativan and Rohypnol. While certain sedative hypnotics are approved to be used therapeutically for multiple reasons reasons such as anxiety disorder or seizures, the only approved use of Ambien is as a sleep medication.
Ambien has a fast onset of action. Generally, from the time a patient ingests Ambien until the point where the patient loses consciousness is less than 15 minutes. However, unconsciousness can occur in 5 minutes or less. Accordingly, it is advised that an individual only take Ambien when he or she is ready to go to sleep. The Ambien Defense in Florida Florida’s DUI Statute is Florida Statute Section 316.193. The State must prove all of the following, beyond any reasonable doubt, in order for an individual to be convicted of DUI in the State of Florida:
- The defendant must be in “actual physical control” of a motor vehicle within the State of Florida;
- The defendant, at the time of being in actual physical control, is under the influence of (1) alcohol; or (2) a chemical compound listed in Florida Statute 877.111; or (3) a controlled substance listed in Chapter 893 Florida Statutes;
Alcohol and chemical compounds in Florida Statute 877.111 do not need to be address for this discussion.
DUI Drug Impairment Pursuant to Florida’s DUI Statute
Pursuant to Florida’s DUI statute, the state bears the burden of proving the specific drug that caused the defendant’s impairment. The state must be able to identify the specific drug because it must be listed in Chapter 893. It is not a crime for a person to operate a motor vehicle in the State of Florida while impaired by a substance that is not listed as a controlled substance in Chapter 893.
There are both federal and state drug laws and these laws are not necessarily the same. For example, marijuana is still illegal under federal law, but not under the law in Colorado. So while marijuana is a Schedule I controlled substance under federal law, it is not a controlled substance under Colorado Law.
Likewise, Ambien is a Schedule IV Controlled Substance pursuant to federal law. However, Ambien is not listed as a controlled substance under Florida Statutes Chapter 893. Therefore, driving under the influence of Ambien alone is not a crime since it is not a controlled substance under Florida Law.
Other Issues to Consider
It is very common for individuals with a prescription for Ambien to have prescriptions for other controlled substances. Many are prescribed benzodiazepines for anxiety disorder. Others may have a prescription for a benzodiazepine for use as an anticonvulsant or a prescription for an opioid pain medication. Although rare, some individuals may even have a prescription for some type of barbiturate.
We almost always end up with a urinalysis as the test for DUI drug cases in Florida due to the statutory restrictions on blood draws. The Ambien defense is much harder to assert when there are multiple metabolites for other controlled substances in an individual’s urine sample. The defense attorney needs to remember that there is no correlation between what substances are found in the urine and what substances are found in the blood. The state will typically attempt to rely on a “co-administration” theory when there are multiple controlled substances detected in the urine. However, absent non-scientific evidence identifying the times of ingestion, it is essentially impossible for the state to prove co-administration. Typically the drugs that appear in conjunction with a positive urinalysis for Ambien are other types of sedative hypnotics. Accordingly, the two will have similar symptoms. As an example, it is essentially impossible for the state to prove that an individual was under the influence of Xanax when the urine sample tested positive for both Xanax and Ambien because the pharmacodynamics are the same, although a much larger than normal dose of Xanax.
In addition to other controlled substances, there are numerous over-the-counter, non-narcotic prescription drugs and even foods that have been proven to inhibit the metabolism of Ambien and/or resulting in blood levels far in excess of a therapeutic dosage.
Disclaimer: The above is not intended to be construed as legal advice. Each case is different and you should discuss the facts and circumstances of your case with your attorney. In addition, the above is not intended to be a scholarly article on analytical chemistry. Statements regarding urine testing included above are dramatically simplified and do not include any discussion of the testing procedure or methodology. Significant additional reading and study is necessary prior to attempting to cross-examine the State’s expert.
For additional information or to discuss the details of your case, please contact us at:
The Law Offices of Michael A. Dye, PA, 1 E Broward Blvd #700, Fort Lauderdale, FL 33301 (954)990-0525 or
The Law Offices of Michael A. Dye, PA, 2 S Biscayne Blvd, Miami, FL 33131 (305)459-3286
