You will face California DUI penalties for driving under the influence of sleeping pills such as Ambien or Lunesta. This is because California’s driving under the influence of drugs (“DUID”) law, applies to legal prescription and over-the-counter drugs as well as to illegal drugs.1
California DUI of sleeping pills is complicated by the phenomenon of “sleep driving” – that is, driving while not fully awake after taking a pill such as Ambien or Lunesta.
In most situations, being unconscious/asleep would be a valid legal defense to criminal charges.2 But for regular users of sleeping pills who have been warned about or are aware of the risk of sleep driving, California courts are unlikely to accept unconsciousness as a defense to DUI of sleeping pills charges.3
When is it a crime to drive under the influence of sleeping pills?
The elements of a DUI of sleeping pills charge are:
- You drove a vehicle,
- While you were under the influence of sleeping pills (or the combined influence of sleeping pills and alcohol, or sleeping pills and another drug), and
- Because of the sleeping pills, your physical or mental abilities were impaired to such a degree that you could no longer drive in the way that an ordinarily cautious sober person would drive under similar circumstances.4
In other words, the elements of the crime of driving under the influence of sleeping pills closely parallel the elements of the crime of driving under the influence of alcohol under Vehicle Code 23152(a) VC.
It does not matter if you were not taking the sleeping pills recreationally but instead needed them for a legitimate sleep ailment.
Two surprisingly common scenarios in which people may be arrested are:
- A person drove while suffering from the “next day” effect — a continued drowsiness after waking up from the drug-induced sleep, and
- A person took sleeping pills before driving home, hoping it would “kick in” after they got home but before bedtime.
Example: Elena is working full-time at a restaurant while attending college. She develops insomnia, which is crippling her ability to function. Her doctor writes her a prescription for Lunesta, a popular sleep aid.
One night Elena gets off work at two in the morning. Her first class the next day is at 8am. Desperate for a good night’s sleep, she decides to take her Lunesta at the end of her shift, drive home and then go straight to bed. This means she won’t have to waste time waiting for the Lunesta to take effect after she gets home.
But her boss decides to keep her at work for an extra half hour after she has taken the Lunesta. So it starts to take effect while she is driving home. She starts lane-splitting and swerving on the freeway and is pulled over.
Elena may be arrested and charged with DUI of Lunesta.
Example: Ray has been taking the prescription pill Halcion to help him sleep better during a period when he is stressed out by financial worries. He usually takes his Halcion at 11pm and then sleeps for eight hours.
But one day Ray needs to wake up at 4:30am to travel to a distant work site for his job. Not thinking much about the early wake-up, he takes his Halcion at 11pm the night before as usual.
When his alarm wakes him the next morning, he is still extremely drowsy and confused. But he gets in his car to drive to the work site anyway.
The lingering effects of the Halcion cause Ray to fall asleep while driving and crash his car. No one is injured--but Ray may still be charged with DUI of Halcion.
What types of sleeping pills can lead to DUI charges?
According to Whittier DUI defense attorney John Murray5
“The crime that people sometimes call ‘DUI of Ambien’ doesn’t need to involve Ambien. We see people charged with DUI sleeping pills most often after they have ingested any of the type of sleeping pills known as ‘sedative-hypnotics.’ These kinds of sleeping pills are commonly prescribed and are known to lead to sleepwalking and sometimes sleep driving.” This has led to the so-called Ambien defense to DUI charges.
Sedative-hypnotic sleeping medications often involved in DUI of sleeping pills charges include:
- Butisol sodium,
- Restoril, and
All of these medications are subject to special labeling by the Food and Drug Administration (FDA”). Their labels are supposed to carry warnings about the risk of sleep driving, which can lead to DUI of sleeping pills charges.6 This warning comes in two forms: (1) on a clear label on the bottle, and (2) in a product medication guide that accompanies the prescription.
It doesn’t matter what form of sleeping pill you are alleged to have been under the influence of. DUI of Ambien, DUI of Sonata, DUI of Rozerem--these all carry the same potential charges and penalties.
What are the penalties if I’m convicted in court?
If you are convicted of DUI in California, you will face standard DUI of drugs penalties--which are the same as the penalties for driving under the influence of alcohol.7
For a first through the third offense, DUI of Ambien is a California misdemeanor.
But DUI of sleeping pills may be charged as felony DUI if any of the following is true:
- You have three (3) or more prior convictions for any form of DUI or California “wet reckless” in the previous ten (10) years;
- You have a prior conviction for felony DUI; or
- You cause bodily injury to another person by driving under the influence of sleeping pills.8
For both misdemeanor and felony DUI of sleeping pills, the consequences usually include a suspension of your driver’s license, criminal fines, mandatory DUI school and possibly jail time.
The following table summarizes the penalties for DUI of Ambien/Lunesta/other sleeping pills:
|Type of DUI of Sleeping Pills||Jail/Prison Sentence||Fine||Driver’s License Suspension or Revocation||DUI School|
|1st offense DUI of sleeping pills||Up to 6 months in county jail||$390-1000||6 to 10 months (convertible to restricted license)||3 or 9 months|
|2nd offense DUI of sleeping pills||96 hours to 1 year in county jail||$390-1000||2 years (convertible to restricted license after 12 months)||18 or 30 months|
|3rd offense DUI of sleeping pills||120 days to 1 year in county jail||$390-1000||3 years (convertible to restricted license after 18 months)||30 months|
|DUI of sleeping pills with injury (misdemeanor)||5 days to 1 year in county jail||$390-5000, plus restitution to injured parties||1 to 3 years||3, 18 or 30 months|
|DUI of sleeping pills with injury (felony)||16 months to 16 years in state prison||$1015-5000, plus restitution to injured parties||5 years||18 or 30 months|
|Felony DUI of sleeping pills||16 months, 2 years or 3 years in state prison||$390-1000||4 years||18 or 30 months|
|Type of DUI of Sleeping Pills||Penalties|
|1st offense DUI of sleeping pills||Up to 6 months in county jail; $390-1000 in fines; driver’s license suspension for 6 to 10 months; 3 or 9 months of DUI school|
|2nd offense DUI of sleeping pills||96 hours to 1 year in county jail; $390-1000 in fines; driver’s license suspension for 2 years; 18 or 30 months of DUI school|
|3rd offense DUI of sleeping pills||120 days to 1 year in county jail; $390-1000 in fines; driver’s license suspension for 3 years; 30 months of DUI school|
|DUI of sleeping pills with injury (misdemeanor)||5 days to 1 year in county jail; $390-5000 in fines plus restitution to injured parties; driver’s license suspension for 1 to 3 years; 3, 18 or 30 months of DUI school|
|DUI of sleeping pills with injury (felony)||16 months to 16 years in state prison; $1015-5000 in fines plus restitution to injured parties; driver’s license suspension for 5 years; 18 or 30 months of DUI school|
|Felony DUI of sleeping pills||16 months, 2 years or 3 years in state prison; $390-1000 in fines; driver’s license suspension for 4 years; 18 or 30 months of DUI school|
Is “sleep-driving” a potential defense?
Because sedative-hypnotic sleeping pills like Lunesta and Placidyl can cause people to do things--including driving--while they are asleep and unaware of what they are doing, it would make sense to assume that the legal defense of unconsciousness could apply to DUI of sedative-hypnotics.
But California courts have suggested that sleep driving is not necessarily an effective defense for fighting DUI of sleeping pills charges.
In the case of People v. Mathson, a California Court of Appeal considered the case of a defendant who was convicted of DUI of sleeping pills after consuming Ambien at home, falling asleep and then getting into his car and driving recklessly. The defendant claimed that he had been sleep driving and thus should not be criminally liable.9
But the court did not accept his sleep-driving defense to the DUI Ambien charges. Even though he had never had a sleep-driving episode before, the defendant in Mathson had been taking Ambien for years and had been warned that sleep driving was a possibility.
This meant that his situation was equivalent to someone who was “voluntarily intoxicated”--and voluntary intoxication is not a defense to any form of DUI, including DUI of Ambien.10
People v. Mathson suggests that defendants may not have an easy time arguing that they should not be convicted of sleeping pill DUI because they were sleep driving. Their strongest argument will be that they were not aware of the risk of sleep driving. This is a challenging argument to make because of the FDA warning requirements--but not impossible.
Example: Sevan is a recent immigrant from Armenia and does not speak much English. Suffering from debilitating insomnia, he goes to a doctor who gives him a prescription for Rozerem. Sevan is unable to understand the warnings on the label.
On his second night taking Rozerem, Sevan gets up while still asleep, gets in his roommate’s car and drives a short distance before crashing into a tree.
Sevan may be able to successfully fight DUI of Rozerem charges by arguing that he did not know about the risk of sleep driving from that medicine.
Defendants will also have an easier time fighting DUI of sleeping pills charges resulting from sleep driving if they have NOT:
- Combined Ambien with other drugs and/or alcohol, or
- Exceeded the recommended dosage.11
How can I fight the charges?
You and your DUI defense attorney may also be able to fight charges of DUI of Ambien/Lunesta/other sleeping pills by relying on other common California DUI defenses. These include:
- You were not actually driving (if you were only sleeping or sitting in your car, for example);
- The traffic stop at which you were arrested was illegal; and
- Your driving was not actually impaired--in which case you would not meet the definition of “under the influence of sleeping pills.”
If you or a loved one is charged with DUI of sleeping pills and you are looking to hire an attorney for representation, we invite you to contact us at Shouse Law Group. We can provide a free consultation in office or by phone. We have local offices in Los Angeles, the San Fernando Valley, Pasadena, Long Beach, Orange County, Ventura, San Bernardino, Rancho Cucamonga, Riverside, San Diego, Sacramento, Oakland, San Francisco, San Jose and throughout California.
For information on Ambien DUI penalties in Nevada, visit our informational article on Nevada DUI Ambien law.
- Vehicle Code 23152(f) VC — Driving under the influence of drugs [including driving under the influence of sleeping pills]. (“(e) It is unlawful for any person who is under the influence of any drug to drive a vehicle.”) See also California Jury Instructions, Criminal CALJIC 16.830 — Misdemeanor Driving Under the Influence. (“[The term “drug,” as used in this instruction, means any substance or combination of substances, other than alcohol, which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, [his] [her] ability to drive a vehicle in the manner that an ordinarily prudent and cautious person, in full possession of [his] [her] faculties, using reasonable care, would drive a similar vehicle under like conditions.].”)
- Judicial Council of California Criminal Jury Instructions (“CALCRIM”) 3425 — Unconsciousness
- People v. Mathson, 210 Cal.App.4th 1297 (2012) [addresses unconsciousness/sleep driving as a defense to charges of DUI of Ambien or other sleeping pills].
- California Jury Instructions, Criminal CALJIC 16.830
- Whittier DUI defense attorney John Murray is one of Southern California’s leading experts on DUI and DUI marijuana criminal defense. He has considerable expertise in drunk and impaired driving law and a stellar track record of success at DMV hearing locations throughout southern California, including those in the City of Commerce, Covina, El Segundo, Oxnard, San Bernardino, and Van Nuys.
- See FDA Requests Label Change for All Sleep Disorder Drug Products, Mar. 14, 2007.
- See, e.g., Vehicle Code 23536 VC
- See Vehicle Code 23550 VC — Multiple offenses; punishment [for DUI, including DUI of sleeping pills].
- People v. Mathson, 210 Cal.App.4th at 1301. (“Defendant was convicted of driving under the influence of drugs [DUI of sleeping pills]. . . . Defendant took prescription Ambien while at home and fell asleep. He asserted that he was not criminally liable because he was sleep driving and, therefore, unconscious during the incident.”)
- Same, at 1327-28.