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Craig Mastantuono Nov. 30, 2012

Ambien OWI Charge is a Nightmare for UW-Milwaukee StudentJanuary 18, 2011by Jim Stingl, Journal Sentinel

I can understand why Kelly Davis doesn’t think she’s guilty of intoxicated driving, even though she was weaving all over the road in the middle of the night and was unable to perform field sobriety tests.

The intoxicant was not alcohol but Ambien, a sleep aid notorious for causing some users to walk, eat and even drive in their sleep.

“I do not think an OWI is the right punishment for me. I did not drink or do recreational drugs. I took my prescribed medication and then had a reaction to it,” the 22-year-old told me. She is a full-time student at UWM majoring in elementary education.

Her lawyer, Craig Mastantuono, has tried explaining all this to Elizabeth Miles, the assistant city attorney for Whitefish Bay, but the prosecution is going forward. The trial is Wednesday evening in front of village Judge Paul Christensen.

The village’s lead attorney, Chris Jaekels, said the law doesn’t require that someone intended to drive while intoxicated, just that she did. Davis is being prosecuted for her actions, not for her mental illness, he said.

Mastantuono has taken it one unusual step further. This week he sent a letter to Village Board trustees, asking them to speak up or intervene. He explained that Davis, who has no prior record, was taking Ambien prescribed by her doctor and that she suffers from depression and bipolar disorder with resulting insomnia.

“Our position is that the village is in a unique position to take a progressive approach to prosecution of young persons with mental health issues through alternative and treatment-oriented means,” he wrote. “Essentially, my position is that Ms. Davis’ citations were the result of her mental illness rather than a willful violation of village traffic laws, and that this young person has taken significant strides since the incident to improve her mental health treatment and recovery.”

The case began at 2 a.m. on Nov. 19, 2009, when Whitefish Bay police spotted Davis driving erratically and pulled her over on E. Henry Clay St. She was dressed for bed and had her pet cat perched on her shoulder. She was confused and kept falling asleep.

Davis made two statements to police that don’t help her defense. According to the incident report, she said she had taken two 10-milligram Ambien tablets that night, twice the usual dosage. She also said she planned to go right to sleep at her east side Milwaukee apartment, but decided instead to drive to a gas station for something to drink.

Davis told me she’s not sure if she took one pill or two, but that her doctor said it was OK to take two on nights when she was having an especially hard time sleeping. A blood test after her arrest found the level of Ambien was at the top of the acceptable therapeutic range.

Davis said she doesn’t know why she supposedly said she drove intentionally.

“I don’t believe that I consciously left my apartment. Due to my depression, I don’t leave my apartment unless I have to. Besides, there is a BP (gas station) close to my apartment along with a Walgreens that I would go to if I needed anything, and I was pulled over not close to my apartment at all,” she told me.

She does not remember any of that evening until the dawn came and she found herself at the police station, she said. Her father picked her up and drove her to Geneva, Ill., where she’s from. She’s been re-evaluated and taken off Ambien, which her doctors believe caused the unintended driving and also some hallucinations.

Her lifelong doctor from Geneva wrote to inform the court that he does not believe she was voluntarily driving. A toxicologist hired by the defense says Davis was in a state of parasomnia and amnesia as a result of the Ambien, and that this would explain her zombielike driving.

“I feel that I have told my whole story and bared my soul, and there is no compassion or understanding at all from the prosecution,” Davis said.

Clearly, Kelly Davis was a menace on the streets that night, and in fact struck some unknown object with her Buick. But does this incident really fit into the scourge of drinking (or drugging) and driving? Mastantuono is asking for dismissal or deferred prosecution and a requirement that Davis continue with her treatment and steer clear of any more traffic or criminal violations. That sounds reasonable to me.

But not to the city attorney. “She took more than she was supposed to take and drove impaired. From our perspective, that is why we are prosecuting this case,” Jaekels said.

He added that the village trustees have no power to make him pull back from prosecution, short of tossing him out of the appointed job. In his 20-year tenure, he’s never seen the defense pitch the board this way.

If the first-offense OWI ticket is upheld, Davis faces a license suspension of six to nine months, a fine of $500 to $1,000 and substance abuse counseling.

Just like a real drunken driver.