Woman uses unusual defense to answer charge
GRAND RAPIDS TOWNSHIP, MICH. - For months, the 13 Watchdog team watched a local court case involving a woman who was defending herself by using a "sleep driving" defense against an operating while intoxicated charge.
Kathleen Bailey, from Rockford, got in her car at her home last November with her dog and drove southbound on Northland Drive. Witnesses say she blew a stop sign near Northland and Wolverine around noon on Nov. 24, 2015 at a high rate of speed.
911 recordings revealed multiple witnesses describing the out of control situation.
"She just missed four people and she's driving all over the road here," witness David Burns told a dispatcher. "She is not to be driving because she is going to kill somebody."
The out-of-control driving ended as Bailey arrived at her destination at the Walgreens' pharmacy drive-thru in Plainfield Township. Fortunately, there was no property damage and no injuries resulting from her poor driving.
Kent County deputies arrived to confront her and they say she appeared to be under the influence of something. Tests showed she had no alcohol in her system but the deputies had reason to believe she had taken something to cause her to be drugged.
Dash cam video shows the deputies performed sobriety test after sobriety test on her. She failed nearly all of them and couldn't recite the alphabet from "E to P".
She was arrested and criminally charged with operating while intoxicated. Despite the lack of damage or injuries, Kent County prosecutors decided to pursue a case against her, even as Bailey told them after the incident she had a medical emergency.
Bailey sat down with us before her trial to describe why she thinks she's innocent. She told us she was "sleep-driving" and used the prescription sleep aid Ambien to try to fall asleep the morning of the incident. She had been ill with the stomach flu for days and said she was trying to catch up on sleep she missed the night before.
She contends she was following her doctor's orders in taking the correct amount of Ambien before "bedtime."
"I didn't do anything illegal," Bailey said. "I had been so sick and I hadn't had a shower in two days."
She says she intended to sleep for eight full hours as the medicine requires.
"I then took an Ambien to get some sleep and the next thing I know I am being fingerprinted," Bailey said.
Bailey says she doesn't remember driving at all.
"I literally do not know what happened," she said.
Bailey says she had taken the medication for the past ten years with few issues. She began taking it to help her sleep after suffering from treatments for breast cancer.
"The drug is very dangerous," Bailey said.
Bailey's a nurse and a single mother of a special needs son. She has no criminal record and no current active driving record.
"Why would I have to fight for my freedom if I took a medication prescribed by my doctor," Bailey said. "This is a medical thing, this is not a criminal thing."
"I am scared I am going to be convicted of a crime I didn't do," Bailey said.
Just after our initial interview earlier this month, Bailey found out she was going to face a trial. Her defense attorney Ed Sternisha prepared to use a sleep-driving defense similar to one used by Robert F. Kennedy's daughter Kerry Kennedy in Westchester County, New York in 2014.
In that trial, Kennedy was found not guilty for driving under the influence of Ambien in a hit and run incident.
Could a jury in Kent County find the same answer?
"Ms. Bailey is here because she didn't take it responsibly," Prosecutor Alex Grimes said. "Ms. Bailey is here because she knows how it was supposed to be taken and Ms. Bailey is here because the manufacturer and pharmacist and doctors give you the warning if you take the drug this is what can happen."
Prosecutor Grimes told a jury of three men and three women he just had to prove by Michigan law she was driving under the influence of a controlled substance, something that isn't in question.
The biggest question was whether she was asleep during the driving. The law excuses a person who is legally insane during the commission of a crime.
"Help her wake up from a nightmare with that 'not guilty' verdict," Sternisha told the jury.
An expert from the Michigan State Police lab in Lansing testified Bailey had an additional muscle relaxer and antidepressant in her system as well as the Ambien.
An expert witness hired by the defense said the focus should be strictly on the sleep aid and what it did to her.
Dr. Daniel Mayman, hired by the defense, testified that he believed Bailey was sleep-driving even though her eyes were open and she was talking to the deputies.
"The problem is the higher functions of the brain where our judgment comes from are not working well, they're only working a little bit," Dr. Mayman said.
Bailey took the witness stand and broke down into tears. She testified she never abused Ambien and always took it as prescribed before her bedtime.
But should this nurse have known better? Should she have known that taking Ambien late in the morning, when she's usually up, even though she was very sick, could have that impact?
The prosecutor pointed out there are plenty of warnings out there. The U.S. Food and Drug Administration created a detailed web site just for Ambien and the dangers when it's taken.
"If you're going to take a drug, you're responsible for what happens to you," Prosecutor Grimes said in court.
Or was this a case of a person who had no idea what she was getting herself into by following her doctor's orders?
"She had no intent to drive a car," Sternisha said.
Bailey's fate was in the hands of the jury for only two hours.
The jury's foreman read the verdict.
"We unanimously find the defendant Kathleen Bailey, guilty," he said.
A woman who had maintained her innocence for close to a year was found to be responsible for operating while intoxicated.
A juror told us after the case he just didn't believe she was sleep-driving. In an initial vote, the jury was split on the decision but ultimately decided she was at fault.
Bailey now faces sentencing on Nov. 21. She faces a driving suspension, a big fine and possible time in jail.
Sternisha left open the possibility of an appeal.
"They prosecuted her because she had a medical reaction they didn't understand," Sternisha said. "We're punishing the patient and not the people who are putting this drug out there.
Bailey threw out the rest of her Ambien and no longer takes the medication.
Prosecutor Grimes chose not do an interview with us until Bailey is sentenced here in a few weeks.
Friday at 6 p.m., we will take a closer look at the impact of Ambien on people.
The company that makes Ambien, Sanofi-Aventis did issue a statement to us regarding Bailey's case.
"Sanofi is committed to patient health and safety and treats Ambien® (zolpidem) reports with the highest degree of importance. Sanofi stands behind the robust clinical data that have demonstrated the safety and efficacy of Ambien since its approval in the U.S. in 1992, representing more than 20 years of real‐world use and 24 billion nights of patient therapy worldwide. It is important that patients only take Ambien as directed by their physician. The FDA-approved label states, “do not take Ambien unless you are able to stay in bed a full night (7-8 hours) before you must be active again.”
EDITOR'S NOTE: Reporter David Bailey is not related to the defendant in this case, Kathleen Bailey.