APPEAL from a judgment of the Superior Court of Placer County, Colleen M. Nichols, Judge. (Super. Ct. Nos. 62084861, 62062582, 62069140)
The opinion of the court was delivered by: Murray J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Defendant was convicted of driving under the influence of drugs. (Veh. Code, § 23152, subd. (a).)*fn2 He admitted an allegation that he had three or more prior driving under the influence-related convictions within 10 years. (§ 23550.) Defendant was also convicted of driving while his license was suspended or revoked (§ 14601.5) and driving a vehicle that was not equipped with an ignition interlock device (§ 23247, subd. (e)).
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.
On appeal, defendant contends that the trial court's modified CALCRIM instructions to the jury on unconsciousness, voluntary intoxication, and involuntary intoxication were erroneous. Defendant also contends that the condition of probation imposed by the trial court that prohibits him from driving or having access to a vehicle or keys to a vehicle while he is taking Ambien violates his constitutional rights to travel, free association and privacy.
In the published portion of this opinion, we conclude that, except for the instruction on unconsciousness, the trial court's instructions were not erroneous. In our view, CALCRIM No. 3425 on unconsciousness is flawed, but the error is harmless in this case.
In the unpublished portion of this opinion, we conclude that one aspect of defendant's challenged probation condition is unconstitutionally overbroad and remand the matter to the trial court to address the defect.
Finding no other error, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Defendant was charged with four counts stemming from his conduct just before midnight on October 16, 2008: count one, felony driving under the influence (sometimes referred to herein as DUI) (§ 23152, subd. (a)), with three or more DUI-related convictions within the past 10 years (§ 23550); count two, being a habitual traffic offender (§ 14601.3); count three, driving with a suspended or revoked license (§ 14601.5, subd. (a)); and count four, driving a vehicle that was not equipped with a functioning ignition interlock device while his driving privilege was restricted (§ 23247, subd. (e)).
Based on the October 16, 2008 incident, the People filed a petition to revoke defendant's probation in a previous DUI case, and the Placer County Probation Department filed a separate petition to revoke defendant's probation in another DUI case.
On October 16, 2008, as Jeremy Miller was driving home from work, he saw a car driving erratically, "splitting lanes," veering off the road onto the shoulder, and speeding up and slowing as it traveled east on Interstate 80. Miller called 911 and reported the erratic driving behavior. At the dispatcher's request, Miller followed the car to an AM/PM Mini-Market, where he saw a man leave the car, enter the AM/PM, return to the car, and begin to pump gas. He provided the dispatcher with a description of the car and the man who was driving it.
Rocklin Police Officer Jeff Kolaskey responded, arriving at the AM/PM shortly after 11:45 p.m. Kolaskey saw a man matching the description Miller had provided standing between the gas pumps and a car that matched Miller's description. When Kolaskey asked defendant his name, instead of responding verbally, defendant pulled out his identification card and gave it to Kolaskey. Kolaskey testified that defendant responded coherently to a series of questions, including: where defendant was coming from, when and what he had last eaten, when he had last consumed alcohol or drugs, when and for how long he had last slept, whether his car had mechanical problems, whether he was diabetic or epileptic, whether he was under a doctor's care, and whether he was taking any medication.
Defendant was cooperative during Kolaskey's interview and responded to all of Kolaskey's questions. Defendant did not stare blankly at the officer or fail to respond to questions. Defendant did not say anything that indicated he was unaware he had been driving or that he was unaware of what he was saying or doing, and Kolaskey testified he had no reason to believe defendant was unaware of those things. On cross-examination, however, Kolaskey admitted testifying at the preliminary hearing that defendant appeared to be incoherent.
In response to the question about where defendant was going, defendant told Kolaskey that he drove from his house in Fair Oaks to get gas. Defendant actually lived in Citrus Heights. In response to the officer's questions about when and what defendant had last eaten, defendant said he had tortilla pizza at 1:00 p.m. that day. In response to the officer's questions about when defendant had last slept and for how long, defendant said he had slept for an hour earlier that day.
Defendant initially denied having consumed any alcohol or drugs but, upon further questioning, defendant told Kolaskey that he had taken two 5-milligram prescription Vicodin pills at his home earlier that day -- the first at 9:00 a.m. and the second at 4:00 p.m. Defendant told Kolaskey that the Vicodin had been prescribed for a back problem. During the interview with Kolaskey, defendant never mentioned having taken Ambien or zolpidem.*fn3
Kolaskey observed that defendant had droopy, watery and glassy eyes, slow, slurred speech and a dry mouth. Although defendant's verbal responses made sense to Kolaskey, defendant's words "would run together." Kolaskey also observed that defendant was swaying, and was uneasy standing on his own feet unassisted.
Kolaskey performed a series of field sobriety tests on defendant in the gas station parking lot.*fn4 Defendant appeared to understand Kolaskey's instruction for each test and also verbally stated that he understood each of the instructions after they were given. During the tests, defendant swayed, had difficulty maintaining his balance, exhibited a "very slow internal clock," was unable to accurately count, swayed when stationary and when he walked, walked in a "robotic manner," and was unable to touch his nose.
Kolaskey detected no odor of alcohol on defendant, but based on his observations, he concluded that defendant was under the influence of drugs. Kolaskey administered a preliminary alcohol screening test in the field with defendant's consent. The test indicated that defendant did not have alcohol in his system.
Kolaskey placed defendant under arrest for driving under the influence and transported him to the Placer County Jail. There, Kolaskey explained the blood-alcohol options to defendant and defendant said he would take a blood test. Defendant's blood was drawn for testing at 1:40 a.m.
The blood test showed that defendant had .13 milligrams per liter of zolpidem in his system. No alcohol or other drugs were present.
The People's pharmacology expert, Dr. Julianna Landon Burton, testified that zolpidem, which is marketed under the brand name Ambien, among others, is prescribed as a sleep aid and can cause drowsiness, dizziness, confusion, poor motor coordination, and erratic and impulsive behavior.
According to Dr. Burton, when Ambien is first prescribed, pharmacists are legally required to counsel the patient about Ambien's side effects. A patient might also get a warning from his or her physician. Whenever Ambien is dispensed, it comes with label and package insert warnings that it can cause dizziness and drowsiness and cautions against operating heavy machinery and driving while using the drug. Patients are instructed to sit on their bed when they take Ambien and then to lie down. It is fast acting.
Dr. Burton opined that the symptoms Kolaskey observed in defendant and the driving behavior Miller reported are consistent with the effects Ambien can have on a user.
According to Dr. Burton, studies show that 1.6 hours after taking the maximum recommended dose of 10 milligrams, people have an average peak level of .12 milligrams per liter of Ambien in their blood. Dr. Burton opined that since defendant had been in custody between 11:45 p.m. (the time when Officer Kolaskey encountered defendant) and 1:40 a.m. (when his blood was drawn), he had to have taken more than the maximum recommended dosage of 10 milligrams of Ambien on October 16. It is not possible to tell how much more defendant took without knowing how long before 11:45 p.m. he ingested the drug.
Dr. Burton testified that sleep driving is a rare side effect of Ambien. In 2007 and 2008, the manufacturer of Ambien sent letters to health care professionals to warn them that Ambien can cause sleep driving. According to Dr. Burton, there had been a cumulative total of approximately 1,000 reported cases of sleep driving while under the influence of Ambien, and it is estimated that 26 million Ambien prescriptions are written per year. Dr. Burton stated that as of 2007, federal law requires that a warning relating to sleep driving as a possible side effect of Ambien be included in the written materials included in each prescription of Ambien. Dr. Burton testified that Ambien has also been associated with sleep walking, preparing food, eating, making phone calls and engaging in conversations and other behaviors a person does not typically engage in while asleep. Ambien has also been associated with amnesia.
Defendant testified that in October 2008, he worked in construction. At that time, he suffered from insomnia, a condition he had had "for a long time." Without medication, he usually could not sleep for two to three days. By October 2008, he had been taking Ambien for insomnia for six or seven years, under the care of his physician, Dr. Thomas Dolkas. Defendant's Ambien dosage had remained the same since 2002. Dr. Dolkas testified he "prescribed a usual amount, one at night, 10 milligrams I believe it was." He acknowledged that the Physician's Desk Reference indicates a patient should not take more than 10 milligrams of Ambien in a 24-hour period. While Dr. Dolkas said he never told defendant he should not take more than one 10-milligram dose in a 24-hour period, a patient should not do so.
Defendant testified that he was prescribed "One 10 milligram dose. One pill at bedtime." He testified that he had never been told by a medical professional that he could not take more than one dose of Ambien within a 24-hour period, but he knew he should not.
Dr. Dolkas testified that he had never had a conversation with defendant about sleep driving or other complex behaviors associated with Ambien, such as making phone calls or preparing food while asleep.
Defendant testified he was aware of warnings that Ambien causes sedation, drowsiness, or dizziness. Defendant was also aware that Ambien use is associated with other complex behaviors such as sleep eating and having conversations with others while the user is asleep. In fact, defendant had made phone calls while he was asleep. He testified that, prior to October 16, 2008, he had called his mother, his ex-wife, and others on a few occasions and engaged in conversation while he was asleep. Defendant also thought he may have left his house and returned while sleeping one night. He had been told that a friend who came over to check on him because he had been making phone calls found his door open, but found him at home. Defendant was aware, from what he saw on television, that an Ambien user who experiences "complex behaviors" while asleep should consult a doctor. Defendant admitted he did not talk to a doctor about making telephone calls while asleep because, even though it was embarrassing, he was not concerned about these incidents. During an interview with his defense expert, Dr. Gregory Sokolov, defendant told Dr. Sokolov that the sleep conversations did not scare him that much. Defendant also did not report to his doctor the incident in which friends had become concerned about phone calls he made one night, after which they went to check on him and found his door had been left open.
As for sleep driving, defendant testified he had heard the warnings about sleep driving in relation to Ambien use on television "probably a couple years" before October 16.*fn5 Defendant was not concerned about sleep driving because he had been taking Ambien for many years and had never had a sleep-driving episode.
Defendant testified that on the evening of October 15, 2008, he took one Ambien pill at 10:00 p.m. or 11:00 p.m. The following morning, after defendant learned that he did not need to go to work that day, he took another Ambien pill around 7:00 a.m. He did not remember taking another Ambien pill afterward. However, he admitted that it is possible he took more Ambien pills on October 16 because he later discovered approximately four Ambien pills missing. Contrary to defendant's testimony, Dr. Sokolov testified that defendant told him seven or eight Ambien pills were missing.
Defendant testified that although he remembered a police officer standing in front of him, he did not remember driving to Rocklin, his conversation with the police officer, taking field sobriety tests, or being taken to the police station. According to defendant, the first thing he remembered after he took Ambien on the morning of October 16, 2008 was waking up in jail dressed in orange. In contrast, defendant told his psychiatric expert, Dr. Sokolov, that he remembered his blood draw, which took place before defendant allegedly woke up in jail.
Similar to the prosecution's expert, Dr. Sokolov testified that he recalled receiving a letter from the manufacturer of Ambien that had been sent to health care professionals warning about sleep driving. Dr. Sokolov opined that on October 16, 2008, defendant was in a state of sedative hypnotic intoxication as a result of taking Ambien. According to Dr. Sokolov, one is not fully aware and cannot process information in a conscious and rational manner when in a state of sedative hypnotic intoxication. Based on his understanding that defendant appeared confused and robotic to Officer Kolaskey, Miller's observation of defendant's erratic driving, defendant's inability to remember what happened on October 16 and defendant's prior episodes of having conversations while asleep, Dr. Sokolov opined that, "within a medical certainty," defendant was in a state of sedative hypnotic intoxication, known as sleep driving, on October 16. Dr. Sokolov testified that Ambien affects the judgment center of the brain, but not ingrained memories of behaviors in which the Ambien user has previously repeatedly engaged, such as driving. Dr. Sokolov agreed, however, that responding intelligibly to specific questions by a police officer evidences a conscious act. He also agreed that indicating understanding of field sobriety test instructions is evidence of awareness. It is evidence that "at some level . . . there is processing of information, basic commands [to] do this [or do] that."
Dr. Sokolov testified that defendant told him he had no memory of taking the Ambien pills he was missing. According to Dr. Sokolov, taking more pills might be complex behavior caused by the Ambien. However, he cited no studies, articles or reports indicating that such behavior had been reported among the other reported complex behaviors.
Like Dr. Sokolov, defendant's pharmacology expert, Dr. Alan Donelson, testified that while under the influence of Ambien, a user is not fully conscious of what he or she is doing. It is "almost as if part of their brain is asleep and part of their brain is not." Dr. Donelson testified that Ambien has been associated with complex ambulatory behaviors, such as sleep driving, food preparation and sleep eating. There have been reports of people who have taken Ambien making uncharacteristic phone calls and having emotional but intelligible conversations with others while asleep.
According to Dr. Donelson, sleep driving has been "widely recognized as a problem." Dr. Donelson testified that a study revealed gross deviation from normal driving behaviors, such as failing to maintain lanes, running off the road, running up on sidewalks, and driving into objects. Upon getting out of a vehicle, the sleep driver will have the appearance of a grossly intoxicated person, slurring his or her words, looking half asleep, and swaying while standing. To the uneducated eye, the person appears to be drunk, rather than asleep. Dr. Donelson was not asked about one's ability to understand and perform field sobriety tests or the behaviors exhibited during such testing.
Dr. Donelson opined that the results of defendant's blood test and Kolaskey's and Miller's observations on October 16, 2008 are consistent with defendant being asleep while he was driving.
Dr. Donelson testified that Ambien metabolizes quickly. A person with severe insomnia who is worrying or anxious may not sleep through the night because the drug has its peak effect after only two hours. After four hours, the drug has worn off. "[I]t's not going to get you through the night if part of you wants to continue to worry and stay awake."
According to Dr. Donelson, the level of .13 milligrams per liter of zolpidem measured in defendant's blood draw at 1:40 a.m. would be within the therapeutic range provided the drug was ingested four hours before. But if a person were to have last taken Ambien 14 hours prior to the blood draw at 1:40 a.m. resulting in a level of .13 milligrams per liter, that person would have had to have taken a "huge dose." The dose would "probably" have been "close to a toxic level, four or five or six ...