There have been numerous interesting and creative defenses used by defense attorneys over the years in an effort to protect their clients from criminal charges, but this is a relatively new one. ‘Sleep driving,’ which Kathleen Bailey’s attorney says is the reason she was pulled over last November. This is a new twist on drunk driving defense. But did it hold up in a Michigan court?

According to court records, Bailey got into her vehicle with her dog at about noon and headed out for the Walgreen’s Pharmacy in Plainfield Township just north of Grand Rapids, MI. Sounds perfectly normal, right? However, according to numerous witnesses who saw her while she was driving southbound on Northland Drive, she was acting much like an intoxicated driver.

Numerous 911 calls were logged as concerned citizens called Kent County to report a drunk driver who was speeding and weaving in and out of her lane. She was seen not stopping for a stop sign as well. However, Bailey arrived at the pharmacy and went through the drive-thru, where she was intercepted by police. This is where it gets weird…

Officers tested Bailey for alcohol and drugs, both of which she tested negative for, which would lead one to believe that she wasn’t intoxicated. However, she failed all of the roadside sobriety tests administered by officers. So if she wasn’t under the influence of alcohol or drugs, what was going on, and why was she acting like an intoxicated person?

The answer, according to Bailey, is Ambien. Bailey told the media that she had been suffering from a severe case of stomach flu for several days, and planned to catch up on her sleep.She took the correct dosage of Ambien, a sleeping pill, as prescribed by her doctor, and went to bed. Some hours later she woke up being fingerprinted by the police.

Bailey says she has no memory of driving anywhere. She was asleep at the time, and had no idea that she was also behind the wheel of her car with her dog in the passenger seat. Bailey, a nurse with a special needs child and no criminal record of any kind, was insistent that she hasn’t broken the law. That she wasn’t driving drunk and that she shouldn’t have to face criminal charges.

The prosecutor’s office, however, disagreed. Bailey was charged with Operating While Intoxicated, and despite her defense attorney’s best efforts, she was found guilty by a Kent County jury. A juror who later discussed the case with the media said that initially the jury had been split on whether or not Bailey should be charged, but ultimately had decided that she couldn’t have been asleep.

Interestingly, this very same defense was used successfully in 2014 in New York. Robert F. Kennedy’s daughter Kerri Kennedy was accused of accidentally taking an Ambien instead of the thyroid medication she had intended to ingest. As a result she sideswiped a truck and drove erratically for several miles. In the end, Kennedy was found not guilty of drunk driving.

Bailey is scheduled to be sentenced on November 21. She is facing possibile jail time, in addition to a suspension of her driver’s license, and substantial fines. It remains to be seen, however, whether or not the the judge will take pity on this single mother, or simply sentence her according to Michigan’s advisory sentencing guidelines. We will keep you updated.