Sleep Driving (or, Your Worst Nightmare)


Approximately 15-20 years ago people started reporting bizarre behavior taking place after ingesting certain legally prescribed medications. Most notably were side effects such as loss of memory, hallucinations and conduct such as driving and cooking meals without remembering.
Imagine waking up in a jail cell with no memory of how you got there at all.  You have no idea what you did from your last memory to how you wound up in jail, much less what transpired in between.  Various prosecutions, some high profile cases, started arising as a result of the phenomenon we now know as “sleep driving.”
To understand this condition let’s look at how various drugs can react with the human body.  First, we know antibiotics, drugs that kill bacteria, are very beneficial and save countless lives each year.  We also know that they do not affect each individual the same way.  The documented allergic reactions on individuals range from mild, including nausea and sensitivity to sun light, to severe, causing shortness of breath and even death.  Differing reactions to these particular drugs are not disputed by the medical, scientific, and legal communities. Decongestants and antihistamines, used to treat the common cold, can cause one individual to feel “drowsy” and have impaired coordination, and make another feel “wired,” lightheaded and nervous.  The same is true for prescribed pain killers.
The first instances of “sleep driving” and the commission of crimes were dismissed by prosecuting authorities as a lie, hoax, red herring or simply a method to avoid being prosecuted and convicted of a particular crime.  Now it is generally, if not universally, accepted that the side effects of these legally prescribed drugs are real.  To further show that the side effects are not just manufactured to avoid prosecution consider the following cases relayed to us by people who have not been charged with a crime.

  1. A husband and wife are prescribed the same medication on the same day.  On the third morning after taking the prescribed dose they awoke under their kitchen table naked with a plate full of peanut butter sandwiches with no memory of the night’s events.
  2. A woman drives from South Carolina to Danielsville, Georgia.  She wakes up on a traffic circle, downtown, with no memory of driving there. Further, she had no friends or family in that city.
  3. A woman takes her dose of a new medication one evening before bed.  When she awakes she sees a large empty pizza box on the kitchen table and confronts her sleeping husband about ordering it.  After further investigation, it was found that she ordered, paid for, and consumed the entire pizza herself.  She has absolutely no memory of the event.
  4. A man is prescribed Ambien® and takes it at approximately 9:00 p.m. and sits in his recliner to watch television to allow the medication to take effect.  A short time later his wife walks through and he asks her who put up the “picket fence” in front of the television and when she was going to get all of her “zoo animals” out of the house.

And the list goes on!  According to the website www.webMD.com, the manufacturer of Ambien® now acknowledges one of the side effects is none less than “sleep driving.” Additionally, a catch all provision has been included stating that there is no complete list of possible side effects and encouraging individuals to contact their doctor or pharmacist if they experience other effects not listed.
So what is the defense for a defendant in a criminal case in South Carolina?

The South Carolina Supreme Court has been faced with the issue of the defense of involuntary intoxication, inState v. Pittman, 373 S.C. 527, 647 S.E.2d 144 (2007).  There the defendant was convicted of the double homicide of his grandparents; the defense asserted that the murders occurred while the defendant was under the influence of Zoloft®, an antidepressant, and argued for a jury charge on involuntary intoxication resembling that of the Model Penal Code.  The trial court declined to adopt the Model Penal Code and charged the jury with the M’Naughten Test and further charged the jury to find the “defendant not guilty if they found involuntary intoxication.” Id at 577.  On appeal, the Supreme Court held that the proper test in criminal cases where mental capacity issues are implicated is the M’Naughten Test.  Under that test, a defendant is found to be legally insane if, at the time of the offense, he lacked the capacity to distinguish moral or legal right from wrong.  Further, the Court declined to adopt the Model Penal Code standard, and held that “the fact that other courts apply a different standard for the defense of involuntary intoxication is not dispositive.”  Id at 577.
While Pittman is the current and correct law in South Carolina, it is important to note that holding specifically applies to Zoloft® and by extension, all antidepressants, not sleep aids or other lawfully prescribed medication. Further, at trial, the defense was allowed to present extensive expert testimony and limited anecdotal evidence about the side effects of Zoloft®, in an effort to bolster their defense.
Other states have directly settled the issue of involuntary intoxication: consider §16-3-4, Intoxication, Georgia Code of Laws Annotated:

  • A person shall not be guilty of a crime when, at the time of the act, omission, or negligence constituting the crime, the person, because of involuntary intoxication, did not have sufficient mental capacity to distinguish between right and wrong in relation to such act.
  • Involuntary intoxication means intoxication caused by:
  • Consumption of a substance through excusable ignorance; or
  • The coercion, fraud, artifice, or contrivance of another person.
  • Voluntary intoxication shall not be an excuse for any criminal act or omission.

Also see, § 39-11-503, Intoxication, Tennessee Code of Laws Annotated, for a similar statute addressing the defense of involuntary intoxication.
For those traffic cases in which the defense of involuntary intoxication is applicable, a well crafted jury charge would be extremely beneficial in explaining to the jury this particular defense.  It is important to note the stark similarities between the M’Naughten test presented in Pittman and the Georgia statute cited above.  So, depending on the evidence presented at trial, one should prepare a jury charge that reflects both the holding in Pittman (M’Naughten coupled with the fact that the trial judge instructed the jury to find the defendant not guilty if they found involuntary intoxication), and the Georgia statute.  (There is nothing prohibiting a jury charge from other jurisdictions, though it is in the complete discretion of the court to so instruct.)  And, when arguing such, remember State v. Kimbrell, 294 S.C. 51, 362 S.E.2d 630 (S.C. 1987), held that a trial judge should not refuse a request to charge on a correct statement of the law on an issue raised by the indictment and the evidence presented at trial.  Also, Judge Ralph King Anderson Jr.’s request to charge on involuntary intoxication can be very helpful in the preparation of an appropriate jury charge.  See below, emphasis added.
§ 6-4  Involuntary Intoxication 1
There are two types of intoxication, voluntary and involuntary.  Involuntary intoxication may result from innocently consuming an intoxicant, through being tricked into it by another, or being forced to take it, or perhaps through unanticipated side effects of a prescription drug taken on orders of a physician.

If you find the defendant was given drugs or alcoholic beverages without his knowledge, and as a result, he lost his ability to exercise independent judgment and volition while committing the crimes alleged against him, then it would be your duty to find the defendant not guilty.

P.S. Watson & W.S. McAninch, Guide to South Carolina Criminal Law and Procedure
165-66 (3d ed. 1990); 21 Am. Jur. 2d Criminal Law §§ 108-09 (1998).

1. South Carolina Request to Charge-Criminal, By. Judge Ralph King Anderson, Jr., prepared for the SC BAR CLE