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By Hasso Hering
August 12, 2012 6:30 am
A young mother defends herself against two misdemeanors
Mandy Kenney does not remember how she ended up sitting in the gravel by her 1993 Camry, which had a shredded front tire and was in a ditch on Richardson Gap Road in the middle of a winter night.
It was about 2:40 a.m. on Feb. 2, and she was 16 miles from her home in Turner.
The night before, she had taken Ambien, a prescription drug to help her sleep.
Now the 27-year-old mother of three is defending herself in Linn County Circuit Court against charges of driving under the influence and reckless driving. She has pleaded not guilty, and her trial is scheduled for Oct. 30.
Kenney had the choice of pleading guilty or no-contest and entering a diversion program, but she worried that this would have required her to pay for an evaluation as well as attendance at alcohol classes and the installation and lease of an ignition interlock device in her car. None of those things is warranted, she insists, since alcohol had nothing to do with her case.
Her doctor blames a side effect of the medication.
“Mandy is currently under my medical care and my last evaluation was done on 2/17/12,” Dr. Eric North of Silverton said in a written statement dated Feb. 27.
“I recently prescribed Ambien for her insomnia. Unfortunately, she experienced a rare side effect from the medicine called ‘sleep driving.’
“This,” the doctor explained, “is a rare but known side effect where a person who takes an Ambien at night will drive their car while sleeping. It is my opinion that her recent motor vehicle accident while ‘sleep driving’ was completely due to this medication side effect.
“She has been advised to never take Ambien again.”
On the night of the accident, a Linn County deputy put her through sobriety tests on the road, making her eyes follow the tip of a pen and having her do the “walk and turn” and the “one leg stand.”
After failing the tests, she was handcuffed behind her back and taken to the county jail in Albany.
There they had her blow into an Intoxilyzer, which showed a blood alcohol content of 0.00.
“I did not feel Ms. Kenney’s level of impairment was consistent with her blood alcohol content,” Deputy Todd Hargrove wrote in his report. He called in Officer Robert Hayes of the Albany police, a drug recognition expert.
Kenney agreed to give a urine sample, and Hayes shipped it to the Oregon State Police Forensic Lab in Springfield.
In May, the lab reported that the sample showed the presence of Ambien, “a schedule IV controlled substance and a hypnotic,” as well as Effexor, a prescription-controlled antidepressant that Kenney says she has been taking for years.
Since her accident, Kenney has found lots of online references to the unusual side effects of Ambien, including sleep driving.
Her Albany attorney, Kent Hickam, noted that among those cases are two involving members of the politically and socially prominent Kennedy clan.
(In May 2006, Patrick Kennedy, son of then-Sen. Ted Kennedy, got into an accident in Washington and said he was disoriented from having taken Ambien and anther medication. In July of this year in New York state, Kerry Kennedy, daughter of Robert Kennedy, was in a crash, and tests showed no alcohol but did reveal Ambien in her system. She was charged with impaired driving.)
For Linn County, the question is: Why charge Mandy Kenney with two misdemeanors if all the signs point to a side effect of a legally prescribed medication, an effect she did not expect and could do nothing about?
Michael Wynhausen, the deputy district attorney handling the case for the state, says DUII is a “strict liability” offense, meaning a person’s intent is not an issue.
“She could have killed somebody,” he said.
As for the expenses involved in entering a plea and entering diversion, the prosecutor said that if an evaluation shows it’s not necessary, the court may not require alcohol classes or the installation of an interlock device.
He said that while a trial has been scheduled, the court probably would still accept a plea if Kenney changed her mind.
“What they are saying,” Kenney told the Democrat-Herald in an email, “is that the DUII law in Oregon (is) black and white; either you drove impaired or you didn’t. They said there is no leniency in whether you consciously choose to drive or if it’s a sure effect of a medication.”