SAN MATEO NOT RELAXING ITS PROSECUTION OF KAVA TEA

Second Driving-Impairment Court Case Could Establish Beverage As Intoxicant

Six months ago, kavakava and its relaxing effects were as foreign to San
Mateo County District Attorney Jim Fox as the small Pacific islands where
this member of the pepper family of plants is typically grown.

But now Fox is convinced that kava's potential to impair drivers is worth
his attention. Despite an initial setback, his office is preparing to
prosecute its second kava case, this one involving a man who police say was
driving erratically on Highway 101 after drinking tea made from the
powdered root of the plant.

The district attorney dropped its first kava case this month after a
deadlocked jury voted 10 to 2 in favor of acquitting the defendant. But
Deputy District Attorney Rachel Holt will try again next month in a similar
case against an East Palo Alto man accused of driving after drinking 23
cups of kava.

Prosecutors believe the two cases are the first of their kind in California
and among only a few to be tried nationwide. But that number is likely to
rise because kava has become increasingly popular in the last 10 years.

With its reputation as a natural alternative to muscle relaxers and
anti-anxiety medicine, kava capsules, tablets and liquid are now among the
top-selling herbal remedies in the United States. Chiropractors are
recommending kava for muscle spasms, and there are ongoing academic studies
about its potential benefits to manage pain.

``I don't know any women in my office who don't take it for premenstrual
cramps,'' said Natalie Koether, president of Pure World Botanicals in New
Jersey, one of the largest importers of kava in the United States.

Sales of kava in food stores, drug stores and mass merchandisers from July
1999 to July 2000 hit $15.8 million, according to Information Resources
Inc. in Chicago. In most commercially produced kava supplements, the active
compounds, known as kavalactones, are standardized at 20 percent to 30
percent, but levels can vary widely. Recommended dosages vary as well.

Beyond commercial sales of kava, immigrants from Tonga, Fiji and Samoa also
have brought with them their long-held tradition of drinking kava. After
weekend church services, men typically gather for hours around a vat of
kava to relax and chat with friends.

Despite the fears of some kava advocates, the District Attorney's office
says it isn't interested in regulating kava. But prosecutors do want to
raise the public's awareness about what they say is the beverage's
potential to impair a person's ability to drive.

``I don't want prohibition,'' said Holt, who along with Fox has never tried
kava. ``But it's like alcohol -- you drink enough of it, and you're not OK
to drive.''

But defense attorneys have argued that it's unfair to prosecute people for
driving after drinking kava because the California vehicle code doesn't
specifically mention kava. They also say there's no evidence that kava
affects the central nervous system.

``They're going through with a case that they should know is bogus,'' said
Scott Ennis, who represented Taufui Piutau of San Bruno, the defendant in
the first San Mateo County case.

That California law doesn't list kava doesn't matter, Holt said. The law
makes it illegal to drive while impaired by any substance. Her office has
prosecuted cases involving driving under the influence of the painkiller
Vicadin and alcohol, another case involving insulin, and most recently a
combination of depressants and anti-depressants.

The actual effects of kava depend on who's talking. Herbalists, experts and
casual and regular kava consumers offer conflicting accounts of the effects
of the beverage and whether it would impair a person's ability to drive.

At Palo Alto's Wesley United Methodist Church, the men in the Tongan
congregation talk, sing and down small cups of kava for hours after
services on Fridays and Sundays. On a typical Friday night, Tongan pastor
Paini Afu estimates he drinks 20 cups of kava in two to three hours.

``It's not a problem for me,'' said Afu, 50, who started drinking kava in
Tonga at age 17, and often drives back to his home near Santa Rosa after an
evening of drinking the tea.

``The driving is OK for me,'' he added.

But Tomasi Vi, a Tongan pastor at the First Tongan Assembly of God in San
Carlos, said he doesn't want to take any risks, so his congregation forgoes
the kava klatches after services.

``It's a good thing if you just do a little, but if you do it in excess you
get in trouble,'' Vi said. ``I don't encourage it.''

Chris Kilham, a researcher who has helped popularize kava in the United
States, says that, like alcohol, kava's effects depend on the strength of
the tea. A 12-ounce cup might relax a person for 20 to 30 minutes. But
drinking kava for six or seven hours can relax a person people to the point
where they are cross-eyed and can't walk straight. ``People do need to
realize that the dosage can make a difference,'' Kilham said.

Nonetheless, the district attorney's office may still have a tough time
making its case to a jury. Holt interviewed jurors after the first case who
said they felt it was unfair that the defendant was being prosecuted for
something he did culturally.

``It might take someone causing serious damage to themselves or someone
else before people realize it's serious and not racially motivated,'' Holt said.