LAWYERS CHALLENGE LAW AGAINST DRUGGED DRIVERS

They Say The State Law Is Unconstitutional In Not Setting Standard For
Illegal Driving.

Some defense attorneys are questioning whether a law aimed at so-called
drugged drivers is constitutional. Some of the first prosecutions under the
measure are now going to court.

The law, which took effect Dec. 19, makes it illegal for drivers to have
"any detectable amount" of drugs such as cocaine and marijuana in their
bloodstreams.

Defense attorneys are targeting the words "any detectable amount."

"Unlike consumers of alcohol for which empirical evidence shows a
relationship between blood level and impairment, drug users can be
penalized for the mere use of a restricted substance even after
considerable time has passed, so long as it is allegedly detected even
under what is here an undefined standard," defense attorney Laurence M.
Moon wrote in a case involving a Milwaukee man being prosecuted under the
law. "This discrepancy is irrational."

Attorney Bruce Jacobson, who is representing a man being prosecuted under
the law in Waukesha County, said he is considering filing the same motion.

Janine Geske, a distinguished professor at Marquette University Law School
and former state Supreme Court justice, said it's typical to raise the
constitutionality issue with the new law.

"Because this law is not like operating while intoxicated and there is no
specified amount, I think that is a serious, legitimate issue to raise,"
she said.

The so-called Baby Luke law was named after an infant who died from a car
crash caused by a cocaine-using motorist. The law penalizes drugged drivers
the same as drunken drivers.

Walworth County prosecutors have decided they should treat drivers
sentenced for having illegal drugs in their system like drunken drivers
with high blood-alcohol concentrations.

"We're taking the approach that these drivers should be placed at the high
end of the sentencing range because we have no way of measuring impairment,
and because these drugs are illegal to begin with," said Walworth County
District Attorney Phillip Koss.

In his county, a motorist already has been convicted under the law.

Last month, Russell J. Tvrdik, 56, of Genoa City, was sentenced in Walworth
County Circuit Court to 50 days in jail and fined $1,062 stemming from his
arrest on the day the law took effect.

Tests had showed he had drugs including codeine and methadone in his
system. Koss said the drugs were prescribed.

"However, in combination with one another, they were over the therapeutic
level and he was really impaired," Koss said.