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Ruth Marcus: A problem in need of a correction

Published: March 5, 2014

Kerry Kennedy was just acquitted, and rightly so, of “drugged driving” — she mistook a sleeping pill for her thyroid medication and conked out at the wheel.

It’s an outrage that she was prosecuted in the first place, but even more of an outrage that steps aren’t being taken to prevent this disturbingly common problem.

Before the Mothers Against Drunk Driving rise up to protest, let me be clear: I’m a mother against drunk driving too. Driving under the influence, of anything, is terrible and dangerous and should be punished to the full extent of the law. But the criminal law exists to punish — and, more important, deter — intentionally bad behavior.

Kennedy, a daughter of Bobby Kennedy, was driving under the influence — in her case, of the generic form of the powerful sleeping pill Ambien — but not deliberately so. The evidence presented at trial convinced the jurors, after a mere hour of deliberation, that Kennedy accidentally messed up. She was about to travel to California with her twin daughters to look at colleges, then on to Europe and Uganda for her human rights work.

She had the sleeping pills on her kitchen counter along with her thyroid medication. The two bottles look the same, and the two pills are of similar shape, size and color. Kennedy gulped down one rather than the other, along with a cappuccino and a handful of carrots, as she raced to the gym. She ended up swerving her Lexus SUV into a tractor-trailer, then was found slumped at the wheel in a left-turn lane.

Mercifully, no one was hurt. (If so, I’d still argue against prosecution; a civil lawsuit by the injured party would be the appropriate remedy.) Westchester County, N.Y., prosecutors — perhaps intrigued by the media that would accompany putting a Kennedy on trial, or perhaps fearful of looking as if they were going light on a celebrity — plowed ahead, charging Kennedy with a misdemeanor that carried up to a one-year prison term. Kennedy may have taken the pill by mistake, they contended, but ought to have known she was impaired and pulled over.

Excuse me, but maybe they should have tried taking this drug before filing criminal charges. Ambien and other sleeping pills are powerful. You take Ambien, and 15 to 30 minutes later, you begin to zonk out. A toxicologist who testified at Kennedy’s trial — for the prosecution, no less — said that someone under the influence of Ambien could fail to recognize that she was having a problem, or even to remember, later, what happened.

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