JUDGE TOSSES CASE AGAINST DRIVER ON KAVA

Pacific Island Tea Not Proved To Be Drug

A judge in San Mateo County has dismissed charges against a man
accused of driving under the influence of kava tea, saying prosecutors
failed to show that the beverage impairs a person's ability to drive.

It is the second time San Mateo County prosecutors have had a driving
case involving kava tea fall through. The first ended in a mistrial in
October.

In the latest case, prosecutors had charged Sione Olive, 27, in June
with driving under the influence of 23 cups of the relaxing herbal
beverage, popular in some Pacific Island cultures and available in
many American health food stores. Olive allegedly was spotted weaving
onto the shoulder of Highway 101.

Olive, 26, was charged with a misdemeanor under a state law that
prohibits driving under the influence of any alcoholic beverage or
drug, with "drug" defined in the vehicle code as "any substance or
combination of substances" that impairs driving.

Olive's Redwood City attorney, Hugo Borja, had argued that the
prosecution's case was "unconstitutionally vague," because California
law does not specifically state whether kava is a drug and that Olive
was therefore not "on notice" that using it could subject him to
criminal prosecution.

Superior Court Judge Marta Diaz dismissed the case Wednesday, citing a
"lack of evidence as to this substance, what it is, how it affects
anyone."

District Attorney Jim Fox said that he does not agree with Diaz's
decision and that he will review the court transcript and consider
filing an appeal.

Earlier this year, Fox's prosecutors filed a similar misdemeanor
charge against Taufui Piutau of San Bruno. The case ended in a
mistrial Oct. 27. Some of the 10 jurors voting for acquittal said at
the time that they did not feel enough was known about the effects of
kava to convict Piutau.

Prosecutors did not refile charges, according to Piutau's
attorney.

Kava, a beverage made from a root, is popular in the South Pacific and
is traditionally used in religious and royal ceremonies there. It is
often sold in the United States as a natural herbal tea to combat
anxiety and insomnia.

Its adherents say that kava tea is at most a mild relaxant.

Fox's office found no previous prosecutions in California for driving
under the influence of kava. In 1996, a court in Utah convicted a man
after he told authorities he had drunk more than a dozen cups of kava
tea before getting behind the wheel.