"Ambien" Defense Causing Headaches for Prosecutors

Op-Ed

"Ambien" defense causing headaches for prosecutors

by Bob Barr

THE SENSELESS murder of almost three dozen students at Virginia Tech is a profound tragedy. Yet, already some pundits are jumping on that bandwagon which often emerges in the wake of a human tragedy in modern America -- responsibility avoidance. Yes, the blame-shifting has already begun. Barely had Seung-Hui Cho completed his carnage by taking his own wretched life, than those seeking to divert focus from the tortured mind of a mentally deranged young man were declaring that responsibility for the carnage lay not with the individual who perpetrated it, but rather with the system that gave him the tools by which he chose to carry out his deeds.

In fact, responsibility diversion is seen not only in efforts by gun-control advocates to find more fault with the instrumentality of a crime than with the perpetrator. Prosecutors across the country, from California to New York, are dealing with a burgeoning number of cases in which a phalanx of trial lawyers, "victims" and talk show hosts are attempting to excuse criminal and other bizarre behavior, based on theories that certain prescription sleep-aid drugs caused their behavior and should therefore excuse their actions. This trend threatens to usher in a new era of responsibility evasion, with ramifications beyond the cases themselves.

While the methods employed by trial lawyers through which this latest defense theory is raised are many, the primary vehicle of choice appears to be the popular sleep medication, Ambien; largely, no doubt, as a result of the market share enjoyed by this drug. More than a dozen prescription medications fall into the same class of sleep disorder drugs as Ambien, and together they account for some 44 million prescriptions written last year.

Although products in this category of sleep-disorder drugs have been on the market for years, it is the increased media interest and public awareness that has caught the attention of the trial lawyers. Already, the number and types of cases in which the "Ambien defense" has been raised has proved most interesting and imaginative. For example, drivers caught Driving Under the Influence of drugs or alcohol are raising the defense, spurred no doubt by the national publicity the maneuver received in May 2006 when U.S. Rep. Patrick Kennedy, D-R.I., crashed his car into a concrete barrier on Capitol Hill; others facing criminal charges blame the drugs for assaults on spouses and even children.

The pharmaceutical companies that manufacture these medications -- no strangers to lawsuits -- include on their Web sites, in their advertising and in printed materials accompanying the products, detailed warnings about potential side effects and misuse of the drug. The companies and their products are tightly regulated by the federal Food and Drug Administration. In fact, just one month ago, the FDA urged the companies to include expanded warnings with the prescriptions. Key among the listed contraindications for the drugs is the necessity to use them only with a full night's sleep, and to avoid any drinking of alcohol before or after taking the pills; but the medications continue to be abused. One well-known trial lawyer in Georgia, William C. Head, for example, noted that in the overwhelming majority of cases in which sleep-disorder drugs are involved, the person consumed alcohol. Still, the efforts to raise the specter of the drugs absolving the user of criminal or civil responsibility continue.

History has shown that permitting such defenses as the so-called "Ambien defense" to be viewed as legitimate, especially if accompanied by just a few instances in which the tactic is successful in court -- as happened recently in an Austin, Texas, Driving While Intoxicated case -- will quickly become pervasive and lead to increased irresponsible, possibly criminal, behavior. The rise of the so-called "abused spouse" or "abused child" defense a generation ago, for example, remains with us today as a defense tactic. In Selmer, Tenn., prosecutors even now are battling to convince jurors that a wife shooting a husband at point-blank range in the back with a shotgun is not an excusable action.

We have no way of knowing in what contexts the Ambien defense or its progeny will rear its ugly head in the years and decades to come, if it is allowed to take hold. What we do know, even now as the defense is just starting to develop, is that teens and adults alike are modifying their behavior -- taking medications that have legitimate but serious effects, for the wrong reasons and under improper circumstances, then posing a danger to themselves and others -- based on the possibility that they will not be held accountable for the results of their actions. This is a danger none of us can afford.

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