Friday, February 25, 2011

The Ambien Defense and The Client Who Knows Best

This past week was the final act in what I refer to as "The Ambien Defense" case.

A client and her family arrived at my office about a year ago and confided in me that the client had been arrested for DUI, a common scenario in my office. The gist of this particular case was that the client performed roadside sobriety exercises, thought she did well during the performance, but did not remember much else. She had been in an accident but did not remember driving. The only thing she did remember was going out with a friend, having some drinks, and then being dropped off at her home. The client additionally had some medical issues such as anxiety, depression, etc., and felt that the police were not very just in their arrest of her. Additionally, the client was at risk of not receiving her professional license due to the arrest.

I was hired and began the process of filing in on the case, reviewing the discovery (all the information the State has against her), and then taking depositions. The depositions are the sworn statements of the witnesses at the scene (officers, accident victim, eyewitnesses,etc. ), the goal of taking which is to find mistakes in the case as well as the perspective of the State's listed witnesses (aka the people the State Attorney's Office is relying on to get a conviction). I began the process and started researching the applicable case law when the family member and client suddenly started calling and talking about "The Ambien Defense." The client had apparently been prescribed Ambien and had taken it on the night of her arrest. She claimed that she remembered nothing and it was not her fault; it was the Ambien's fault.

The client and her family pointed me to literature that discussed reports by some Ambien users of sleep walking and not remembering their actions. I understood their belief in the defense to be misguided, but I take my duty of defending cases seriously, so I researched all available information on the subject. I found that there had never been a successfully defended trial using this defense, and as I suspected, I found that this defense would not be applicable to this client's case. First of all, Ambien is not to be combined with alcohol as it clearly states on the prescription bottle. This client knew of this prohibition, but took it anyway. Second of all, and more importantly, this particular client gave a breath test with a result of over .08, which by itself is sufficient for the state to have a guilty verdict (although it is a rebuttable presumption).  DUI is not a specific intent crime. Although there is a chance of arguing involuntary intoxication in DUI cases (rare), this client had been drinking and she knew not to take Ambien with alcohol but did so regardless. Thus, the intoxication was not involuntary. The Ambien Defense was just not applicable in her case.

Still, I read everything regarding the drug and the legal issues surrounding it, in addition to literature sent to me by the client's family, and then I shared my thoughts with them that "The Ambien Defense" was not likely a winning defense for the reasons stated above. I told them that there were other applicable defenses, but to convince 6 jurors that she was sleep walking like the characters do in the cartoon Scooby Doo was just not a story that jurors would believe. Especially not with a breath over the legal limit.

The client and family were not happy with my advice, and they then informed me they wanted a meeting with the State Attorney. THE STATE ATTORNEY. Not the Assistant State Attorney that was assigned to the case, but The Elected State Attorney, because they wanted to explain the inequities of the case to him. I, of course, explained that The State Attorney does not have private meetings with defendants in criminal cases and that is something that only happens on television. And that further more, even if it was something that could be done, it would be a terrible idea for them to do so. That sent the client and family into a tirade that I didn't know anything and that all of my plaques, years of education, and numerous victories meant nothing to them because I did not understand her situation and I did not know the law. Yes, it can be a thankless job.

They ultimately decided to hire another attorney to put on The Ambien Defense. This is the point in the story where it becomes funny to me. First, I was already paid in full, yet they decided to go somewhere else and hire another attorney. Next, I found out that they hired another attorney in town and I recognized the name. When I read more about the attorney and read the attorney's website, I found a whole section on the website dedicated to discussing Women and DUI. How interesting. The website goes on to say things such as: if you're a woman and are charged with DUI, then you need to hire a lawyer who understands women; Women have smaller bodies, smaller lungs, and other factors that cause them to be falsely accused of DUI. The menstrual period is a defense to everything. If you are having your period or just take Ambien while drinking alcohol and claim not to remember anything, then your case should be dismissed. This lawyer of course understands women and their differences. Now I feel silly, because I HAD NO IDEA THAT WOMEN WERE DIFFERENT or that the law applied to them differently.

Did I mention that the defendant made a turn against the flow of traffic and went head on with innocent motorists, causing them injury?

I had been following the case for months and actually began to think that maybe I didn't know everything about DUI defense. The case was obviously being carried on for a while, so maybe there was something that I had missed. ... I thought that for less than 30 seconds before I smiled and said to myself: "are you kidding?! The Ambien Defense?!"

The "attorney for women" who gallantly rescued this woman from lesser attorneys like me made a show of it. Motions were filed putting the State Attorney's Office on notice of the Ambien Defense, which I can only guess caused some to say "wtf is that defense?" along with multiple "are you kidding me" statements. Then the attorney filed an interesting motion that I read and wondered: are there really lawyers out there that are this dumb or are they just grandstanding for their client? For those who don't understand, "grandstanding" is when a lawyer makes a big commotion in court on their client's behalf and everyone in the room knows that the argument the lawyer is making is b.s. ... everyone except the client. That's grandstanding. When the argument gets shot down, the lawyer can say he did everything he could and his client will believe it. Well, I don't grandstand. If my client has a bad case I simply tell them. I'm not going to make a fool of myself arguing something that I know has no merit. Anyway, the case was set a couple of times for trial but was continually reset. Then, this week, the big-huge-wonderful-understanding women-knowledgeable above all other lawyers-lawyer did the most magnificent thing, and the client was so overwhelmed that she got the result she deserved......SHE PLED GUILTY TO ALL CHARGES. How do I make that sound "Ta-Da!"?

I guess I don't know the law. The poor thing actually had to take responsibility for driving while her normal faculties were impaired by alcohol and prescription medication. For all those who are reading this: Yes, I tried to be in court to hear this woman plead guilty to the charges. The Ambien Defense and The Client Who Knows Best is likely to cause another accident, and even more likely to make up ridiculous defense to avoid taking responsibility for her own voluntary actions. And remember, she is a professional, so the next time you hire an accountant, doctor, lawyer, or any other professional, be sure to look up his or her background - because this is the type of person that is what is now becoming a "professional" in our society.
Thanks for reading, commenting, and taking the time to read my thoughts. God Bless.

Wednesday, February 16, 2011

Law Updates for February 11, 2011

Steih, 36 FLW 254, 2nd DCA, Self-defense - Error to deny Judgement of Acquittal after close of State's case where the defense presented prima facie case of self-defense and State failed to prove beyond a reasonable doubt that he did not act in self-defense when he stabbed the victim.

Baker, 36 FLW 275, 1st DCA, Denial of expungement by the court - Court abused its discretion and its reasoning was insufficiently related to the facts and circumstances of the case.  Improper to deny based on the def's occupation as related to the nature of the charge.

The Law Offices of Roger P. Foley,P.A.

Tuesday, February 8, 2011

Law Updates for February 5, 2011

Simms, 36 FLW 206, 2nd DCA,  Neither the anonymous tip, received at 10:30 p.m. on Halloween night, reporting that a thin, dark-haired, six foot tall man wearing a flannel shirt and pants was trying to open car doors on the block in a certain residential neighborhood, nor the officer's observation of the defendant was sufficient to provide the officer with a basis for officers to stop the defendant on suspicion of attempted burglary of automobiles.  Arrest for loitering and prowling cannot be based on anonymous tip and conduct observed by the officers did not create a level of imminent harm or danger needed for detention and subsequent arrest for loitering and prowling.  Error to deny motion to suppress evidence found in search incident to lawful arrest

Reyes, 36 FLW 209, 2nd DCA, Voir Dire/Cause - Court erred in denying cause in a sex case where juror described her involvement with child victims of sexual abuse and sex abuse issues in her family and jurors responses during voir dire clearly did not express a final, neutral, and detached determination to sit as a fair and impartial juror.

Ha, 36 FLW 220, 1st DCA, Motion to Withdraw - The plea should have been granted.  The Judge improperly initiated plea discussions. Judge did not allow the def to withdraw plea even though he later determined that sentence in excess of plea agreement had to be imposed.  Trial judge stated and implied that def would have received lesser sentence if pled prior to jury selection, and it appears that not all the discussion with the judge about the plea was on the record.

The Law Offices of Roger P. Foley,P.A.

Saturday, February 5, 2011

Law Updates for January 28, 2011

Hill, 36 FLW 170, 1st DCA, Vehicle Stop-Flight - Where ofc observed def standing in front of a parked car in the vacant lot of a closed gas station in a high crime area at 1:15 a.m. and def entered the car and departed upon making eye contact with the officer, the ofc did not have reasonable suspicion justifying the stop of the vehicle.  Error to deny motion to suppress marijuana and firearm discovered in search of the vehicle.

The Law Offices of Roger P. Foley,P.A.

Law Updates for January 21, 2011

Ruiz, 36 FLW 99, 4th DCA, Search and Seizure, Consent, Voluntariness - The Appellate court must defer to the express finding of credibility made by trial court in denying motion to suppress drugs found in def's apartment.  Although pages on record, Appellate Court finds police version of events regarding def's consent unbelievable - good dicta

M.M., 36 FLW 105, 1st DCA, Resisting officer without violence - Juvenile's refusal to give name or identification to requesting officer did not constitute resisting or obstructing where juvenile was neither under arrest nor otherwise lawfully detained at the time of refusal.

M.W., 36 FLW 111, 2nd DCA, Obstruct or oppose officer without violence, lawful execution of legal duty - Trial court erred in finding that juvenile committed a delinquent act of obstructing or opposing an officer without violence where obstruction occurred during warrant less arrest for a misdemeanor assault outside the presence of an arresting officer.  School administrator is not a fellow officer whose observation of the assault could be imputed to the arresting officer.

Caldwell, 36 FLW 115, 2nd DCA, Voir Dire, Cause - Trial court abused its discretion when it denied def's challenge for cause to juror whose responses brought into question her ability to be impartial to a def who might not testify.  Good language is not the defense duty to rehabilitate the juror and reasonable doubt is not overcome by the juror's silence to a question later to the whole panel as to that general issue.

The Law Offices of Roger P. Foley,P.A.