BROADENING THE DEFINITION OF DUI

In a legislative session that has already birthed several noteworthy bills,
the "drugged-driving" bill won overwhelming support in both the Senate
(44-2) and the House (96-3) and from the governor, who will most likely sign
it into law, because it promises safer roads. The bill also doubles
penalties for possession of marijuana and other controlled substances.

As these tighter sentences promise prison overcrowding with some non-violent
criminals, some are questioning what the Legislature and Governor Branstad
have decided -- and whether this bill truly makes the roads safer and at
what cost.

The bill is largely focused on providing laws that enable law enforcement
officers to pull over drivers believed to be impaired, to require a blood or
urine test of those drivers and to acquire blood and urine in as safe,
professional and private a manner as possible.

The bill also includes some legislation related to drugs but not to driving.
SF 2391 cancels federal and state benefits, such as food stamps, veterans
benefits and assisted housing, to convicted drug offenders and also singles
out methamphetamine in stricter and mandatory sentencing. Finally, and
perhaps most controversially, SF 2391 stiffens penalties for possession of
all other controlled substances, including marijuana.

Iowa City Police Chief R. J. Winkelhake said he had not seen the specific
wording of the bill. "We know there are people driving under the influence
of something other than alcohol," he said. "If this [law] helps to detour
those drivers and get them off the street and even arrest some of them,
that's good."

State Representative Mary Mascher explained that there was such overwhelming
support for the bill "because law enforcement was coming to us and saying,
'we don't have a leg to stand on.' " The issue, Mascher said, "is the fact
that when a police officer pulls someone over, there's no real test ... for
[controlled substances]. You can still be under the influence and not have
a blood-alcohol content."

Indeed a fair portion of SF 2391 is focused on enabling law enforcement
officers with reasonable grounds of suspicion that a citizen is driving
while drugged to demand blood or urine tests. The bill states: "If the
peace officer has reasonable grounds to believe that the person was under
the influence of a controlled substance, a drug other than alcohol or a
combination of alcohol and another drug, a blood or urine test shall be
required even after another type of test has been administered."

SF 2391 also specifies that only medical personnel will execute the
withdrawal of blood, but a peace officer "may take a specimen of the
person's urine."

The bill states that collection of blood and urine will be sanitary and as
private as possible. In the case of urine, supervision will only take place
if a person has a history of tampering with his or her sample. If
supervision is necessary, the supervisor will be the same gender as the
person giving the sample.

According to the bill, persons under the influence of properly used
prescription drugs will not be arrested.

The bill does not stipulate what is considered "reasonable grounds" for
believing that a person is operating under the influence nor what amount of
drug presence in blood or urine will be deemed criminal. "The department of
health shall adopt nationally accepted standards for determining detectable
levels of controlled substances," the bill states.

Mascher explained that this provision exists because "We're not experts in
the field.... We didn't want to get into legislating that -- we don't have
the expertise."

Does this mean there could be "legal" amounts of marijuana or other
substances detected in blood or urine? Mascher said it would be unlikely
because a trace amount -- or the amount that would not impair one's driving
and thus might be considered legal -- shouldn't prompt one to be pulled over.

"I don't think someone with trace amounts of marijuana would be pulled over
for driving erratically. If you have a joint the day before and you go out
driving, it's not going to cause impairment in driving," Mascher said.

As for the stiffer possession penalties, SF 2391 distinguishes marijuana
from other controlled substances. Carl Olsen of the Iowa chapter for
National Organization for the Reform of Marijuana Laws (NORML) explained
that for non-marijuana controlled substances, SF 2391 doubles the penalties
for second-time offenders, and increases by five-fold the penalties for
third-time and subsequent offenders -- whose repeat crimes will be
considered class "d" felonies.

In regard to marijuana, the penalty for the first offense remains the same
under SF 2391. However, the second-offense penalty is doubled, and third
and subsequent offenses are quadrupled. Prior to SF 2391, each marijuana
possession offense was subject to a fine and six months of jail time. Under
SF 2391, second-time offenders could spend one year in jail, and
third-time-plus offenders could spend two years in jail.

None of these sentences are mandatory, however, as the bill later allows a
controlled-substance possession sentence to be suspended (except for
methamphetamine, which does carry mandatory sentencing) and the offender
placed under probation.

Olsen emphasized how quickly and stealthily this bill was passed. "They
should have made this several different bills that were debated separately
and voted on separately," he said. "It's really lousy legislation."

Mascher said SF 2391 was an "all or nothing" situation. "There are many,
many cases every year where people aren't drinking but they're still killing
people on the roads. People on meth, heroin, crack, marijuana cause just as
big a threat as alcohol. But they're not easy to measure.... You can't do
a breathalyzer," Mascher said. "The Democrats want to get people off the
roads. We couldn't just support that part -- we had to support the law
dealing with everything."

The bottom line seems to be partisan politics. "Democrats try to do more
with educational programs," Mascher said. "We see drug use as a social
problem, and one that needs to be addressed by education. The Republican

attitude is to punish.... This legislation will create more of a problem
with overcrowding."

House and Senate Democrats did try to attach educational measures in place
of punitive drug measures but the amendments failed, Mascher added.

Although Governor Branstad had not signed SF 2391 into law as of Friday,
April 17, he is expected to do so.

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