DRUGGED DRIVING LAW IS TOUGH -- AND UNFAIR, SOME SAY

On Tuesday, more than nine months after a crash on a snowy highway
that killed his fiancee, John H. Harrison Jr. will likely become the
first person in Dane County to be convicted of a drugged driving homicide.

The law under which the 18-year-old man was charged in May, five
months after the death of Courtney Kuenzi-Kessenich, 17, was itself
born from tragedy in 2003.

But some lawyers contend the law is unfair because it says that
finding even the slightest detectable amount of a drug that could
impair driving is enough to prove a driver is guilty of driving under
the influence, the same as a driver caught driving with too much
alcohol in the blood.

"Defendants don't understand it," said Assistant Public Defender
Dennis Burke, who is Harrison's attorney. "They think they have to
prove that they were impaired."

Instead, under Wisconsin's drugged driving law, called the Baby Luke
Law, police don't have to prove that a driver was impaired by drugs
in the bloodstream. And if, as in Harrison's case, a death is
involved, the driver can be charged with homicide by drugged driving.

The law is "extremely unfair as it creates a strict liability
offense, something which is exceptionally rare in our criminal code,"
said Madison lawyer John Hyland. He represents Randall Zeck, 18, of
Cross Plains, who was charged in May with homicide by drugged driving
for a June 13, 2007, crash that killed Jason Randall, 30, of Cross Plains.

Hyland said Zeck and his parents "feel horribly" about Randall's
death. But the fact that the law doesn't require proof that Zeck was
actually impaired by drugs "bothers me, and them, and should bother
every driver," Hyland said.

Prosecutors in Dane County have charged five people with homicide by
drugged driving since the Baby Luke Law went into effect in December
2003, more than any other county in Wisconsin. Three of those people
were charged within the last year.

Statewide, 33 people have been charged with homicide by drugged
driving. Five of them were convicted on that charge, and most of
those went to prison.

Most of the other 28 were convicted of some other form of vehicular
homicide. Nine were convicted of homicide by drunken driving and
seven were convicted of homicide by negligent driving.

Harrison is scheduled for a plea hearing on Tuesday, where he is
likely to plead guilty or no contest to the homicide charge.

In Harrison's case, Burke said, the only possible defense would have
been to prove police did not have probable cause to take Harrison's
blood. But Burke didn't make that argument. A Good Samaritan at the
scene told investigators the car "reeked of weed" and that there was
a marijuana-filled cigar in the ashtray, he said.

"There was no way for me to say there wasn't probable cause," Burke
said. "It's a tough, tough law. It's very difficult to defend against."

Last month, Susan Gorton, 46, of Cottage Grove, who struck and killed
a bicyclist in February 2007, pleaded no contest to second-degree
reckless endangerment. A homicide by drugged driving charge against
her was dropped after prosecutors said they could not prove whether
Gorton had smoked marijuana before or after the crash.

Shannon Anderson was charged in 2005 with homicide by drugged driving
for a crash that killed a passenger in her car, Bobby Morrison, 20,
on April 21, 2005. She pleaded no contest instead to homicide by
negligent driving and got a year in prison.

Daniel Stowell faced homicide by drugged driving, along with homicide
by drunken driving, for a crash that killed a man in Madison in 2004.
Stowell received probation after he pleaded no contest to the drunken
driving charge. Stowell is now serving a seven-year prison term after
his probation was revoked.

The Baby Luke law was enacted after the traffic death in 2001 of Luke
Logemann. Luke was delivered by Caesarean section after his mother's
car was struck at an intersection in Milwaukee by a minivan driven by
a man later found to have had cocaine in his blood. Twelve hours
later, Luke died of injuries from the crash.

Bill and Michelle Logemann, Luke's parents, fought for a law
prohibiting drugged driving. State Rep. Mark Gundrum, R-New Berlin,
championed their cause.

Prosecutors in Wisconsin have filed simple drugged driving charges
1,131 times since 2003, court records indicate. While Dane County has
charged drivers 68 times with drugged driving, Barron County in
northwestern Wisconsin tops the state with 73 drugged driving charges.

Barron County District Attorney Angela Beranek attributes that number
to well-trained police who look for the possibility of drugged
drivers at every traffic stop.

"That is really excellent," Beranek said. "What a good thing to be
known for, from a prosecutor's standpoint."

'Difference' discussed

Some say the law goes too far. Madison lawyer Peter Steinberg, who is
often critical of drug prosecutions, said the law takes an irrational approach.

"The thing about the difference between having a detectable amount of
controlled substance in your blood versus having a scientifically
demonstrable impairment because of the drug is the difference between
a rational law and a law based on wanting to punish people based on
using drugs any way we possibly can," Steinberg said.

A state appeals court, however, upheld the law in 2005, ruling in a
Fond du Lac County case that it was not an unconstitutional overstep by police.

Madison lawyer Tracey Wood, who specializes in impaired driving
cases, predicted that the law would see further challenges in appeals
courts in the future.

"The problem as I see this law is that one doesn't need to be
impaired to be convicted of operating with a controlled substance,"
Wood said. "It's a great tool for prosecutors and police to get
convictions on these people when before they would have had to show
impairment."

But Dane County Assistant District Attorney Jay Mimier, who is
prosecuting the Harrison case, said he expects to see more drugged
driving cases -- as long as the burdened court system can handle them
- -- as more police officers become trained to recognize signs of drug
impairment.

Mimier defends the standard under the law, citing drunken driving as
an example. Though the legal blood alcohol limit for drivers is 0.08
percent, he said, alcohol can impair a driver even at levels between
0.04 and 0.08 percent.

"It's not a charge," he said, "but it's part of the evidence you look at."

Not easy to set level

Laura Liddicoat agrees. Liddicoat is the director of the forensic
toxicology program at the Wisconsin State Laboratory of Hygiene,
which analyzes most of the blood samples that are used to prosecute
drugged driving cases throughout Wisconsin.

Studies show that it would be difficult to set standard blood
concentrations for intoxication with most drugs, as is done with
alcohol, Liddicoat said. But in the case of marijuana, she said, the
studies generally confirm that marijuana impairs physical and mental
abilities, particularly when combined with alcohol.

People also don't realize that some prescription drugs impair their
ability to drive. There has been an increase in impairment cases
related to the sleep aid Ambien.

"People think that because a drug is prescribed by a doctor they
should be able to take it and drive," Liddicoat said. "But that's
incorrect under the law."

The lab can search for more than 300 compounds in blood. It examined
nearly 3,000 samples last year. The workload at the lab, which is
funded in part by a surcharge on drunken driving convictions, has
more than doubled since the Baby Luke Law was enacted.

"Our mission is traffic safety," she said. "We'd love to do full
alcohol and drug testing for everything that comes in so we know
what's going on out there, but we don't have the resources for that."

The lab cancels drug tests of samples if its alcohol concentration is
0.101 percent or greater, more than necessary to get a drunken
driving conviction.

But if law enforcement agencies want that sample screened for drugs,
Liddicoat said, they're charged $200 for a full drug screen or $110
to look for just marijuana or cocaine.