BLOODY LEGISLATION

Will New 'Drugged Driving' Law Withstand Constitutional Scrutiny?

A new law that treats drivers with controlled substances in their blood
similar to those caught driving drunk already has some legal minds
questioning possible constitutional holes.

It's called Baby Luke Law, and it came about after a driver high on cocaine
hit a vehicle driven by Michelle Logemann and the ensuing injuries killed
Logemann's unborn baby, Luke. The baby was delivered by Caesarean section
and lived 12 hours before he died of head injuries.

Even though the driver was high on cocaine, prosecutors could not charge
him with driving under the influence since no laws governing drug
impairment and driving were in place. He pleaded guilty to a charge of
homicide by negligent use of a vehicle and was sentenced to two years in
prison. If the driver was drunk at the time, he would have faced a 40-year
sentence.

But the new law--passed quickly in the Legislature this year--opens up a
new area of law that not only pertains to driving while under the
influence, but also concerns the traditional way burden of proof is determined.

The Baby Luke Law, which took effect in Wisconsin on Dec. 19, takes a
zero-tolerance approach to drivers having controlled substances in their
systems, including marijuana, cocaine, methamphetamines, LSD, PCP and GHB,
among other derivatives.

Wisconsin joins only Minnesota, Iowa, Illinois, Indiana, Georgia, Utah and
Arizona in adopting such a sweeping law.

The Wisconsin law, however, fails to take into consideration that there are
no guidelines as to what constitutes impaired driving after using certain
drugs--especially in the case of marijuana. Even the state Department of
Transportation acknowledges that this law is not consistent with the normal
requirements for revoking a license.

And in a major contradiction to the rhetoric about why the law was needed
in the first place, drivers can defend themselves against citations for
what's known as "driving while drugged" if they have prescriptions for some
of the controlled substances Baby Luke Law targets, including
methamphetamines, GHB and marijuana.

Presumptuous Legislation?

Milwaukee criminal defense attorney Alex Flynn calls the law "arbitrary and
capricious.

"There's a presumption of impairment," he says. "They're presuming zero
tolerance and no other evidence is needed. And they're saying they can do
this without expert testimony."

Flynn thinks the state should have to prove what detectable amount shows
impairment.

Of course, as with drunk driving suspects, the officer must observe some
sort of erratic driving to pull the vehicle over. However, the state
Supreme Court has upheld that an officer can pull someone over based on an
anonymous phone call. And there is also the all-encompassing stop, called a
"terry stop," where a vehicle can be pulled over because of a suspicion
that something illegal might be going on. If a person refuses to submit to
a blood test to check for drugs, their license is revoked for a year.

The strongest case against the law comes when a driver is charged with
homicide after an accident, says Flynn.

Flynn maps out a scenario in which a driver could have smoked a joint the
night before, driven somewhere the next morning and gotten into an
accident, killing an unborn child of a victim in the accident, thereby
getting charged with homicide, despite none of the parties even knowing the
victim was pregnant and the driver never knowing he was high.

"When you're charged with murder, there's a big difference between when you
last smoked pot and when the incident occurred," he says.

Flynn says that question should be challenged, since in a civil injury
case, a court would throw out the fact that someone had marijuana in his or
her system as evidence of negligence.

According to Laura Liddicoat, supervisor of toxicology at the state Hygiene
Laboratory, evidence of most controlled substances can stay in the blood
stream long after the high wears off. For example:

- -The so-called Delta 9 THC is in the bloodstream from four to six hours,
but heavy marijuana users could have traces of THC in their blood all the time.

- -Cocaine stays in the system for six to eight hours, but its metabolites
can stick around for 24 hours. While cocaine metabolites won't create a
"high," they can be used as proof of immpairment under the Baby Luke Law.
"So you probably shouldn't drive for 24 hours after using cocaine,"
suggests Liddicoat.

- -Heroin remains as heroin in the blood for only a few minutes before it
transforms into morphine, which can last a day or two in the bloodstream.

- -Methamphetamines can stay in the system two or three days.

- -The club drug Ecstasy, whose popularity is waning somewhat, can remain in
the bloodstream a day or two, says Liddicoat.

- -LSD is gone in about a day, with its highest readings registering after
about three or four hours.

Attorney Flynn credits Wisconsin law writers with at least making the
distinction between the intoxicating THC, known as Delta 9, and the two
other types of non-impairing THC, which can remain in the bloodstream for
up to a month. Other states with "drugged driving" laws, however, do not
make this distinction, and the Baby Luke Law does allow for Wisconsin
residents arrested for "drugged driving" in these states to lose their
licenses.

"Are we going to have mini-hearings here to determine which cannabis the
driver was convicted on?" Flynn asks, noting that the burden falls on the
defendant to prove that he or she wasn't impaired.

Alcohol: Riskier Than Pot

Including marijuana in the impaired-driving charge has sparked much debate
here and elsewhere over its ability to impair. Many studies show that
marijuana does not impair driving like alcohol does, and some even conclude
pot users could be better drivers since they tend to drive slower and are
aware of their intoxication.

A U.S. Department of Transportation study concluded that THC's effect on
driving performance "appears relatively small." In one of the few attempts
at measuring marijuana impairment on driving, the DOT study found that the
effect of a maximum dose of THC was "certainly less" severe on driving
performance than a blood alcohol level of .08% to .10%. The highest rates
of THC intake were compared with blood alcohol levels between .03% and
.07%. Even so, the study termed the effects "practically relevant but
unexceptional in comparison with similarly measured effects of many medical
drugs," especially compared to modest amounts of alcohol in the system,
such as a .04% blood alcohol level.

According to the National Highway Traffic Safety Administration, in 1996,
about 40% of drivers aged 16 to 20 say they drove within two hours after
using marijuana or another illegal drug. It also found that the prevalence
of "drugged driving" peaks among 19-year-olds at 16% and decreases as age
progresses.

Hasty Passage

State Rep. Tony Staskunas (D-West Allis), a member of the Assembly
Judiciary Committee that held a public hearing on the bill and then
overwhelmingly approved it, says the question of what constitutes
impairment, especially in the case of pot, was a point of contention.

Staskunas agrees that it's almost impossible to measure impairment from
controlled substances, a reason he says some lawmakers ultimately voted
against the bill.

He voted for it, he says, because "I had to perform a balancing test. Am I
going to err on the side of the innocent victim or the drug user? Without a
law like this more incidents like Baby Luke are going to happen."

Staskunas' bottom line is that controlled substances are illegal to use in
the first place.

The bill was introduced in August and passed both houses by November. Gov.
Doyle signed it Dec. 4. Only three state representatives were opposed,
Milwaukee Democrat Johnnie Morris, and Madison Democrats Terese Berceau and
Mark Pocan. When state Rep. Mark Gundrum (R-New Berlin) first said he was
going to introduce the bill, he said only drivers involved in an accident
would come under scrutiny. Obviously, it changed substantially since then.

"Good laws are not passed in emotional times," says Flynn.

Reinforcing Flynn's observation, Staskunas admits, "We had a choice of
passing that bill or doing nothing."

Constitutional Loopholes?

But will the law pass constitutional muster? Flynn says it's always hard to
challenge a law, but there are some options here.

Due process questions come into play if a person is charged with two or
more driving-under-the-influence violations. In the case of the Baby Luke
Law, the defendant is not afforded an opportunity to call in experts to
discuss the level of impairment. It takes away an important part of the
defense, says Flynn. That could be where the law gets challenged, he suggests.

Strong facts are necessary for a challenge, he notes. "If a cop smells pot
and the driver's eyes are bloodshot, that wouldn't be a good test case."

In cases where an expert can be called--say if an accident was involved--it
comes at the expense of the defendant, which adversely affects those who
can't afford high-priced legal help. And, Flynn warns, the practice of
putting the burden on the defendant to prove innocence--instead of the
state, which is the norm--is yet another change in the way justice is decided.

"We have to ask if this is genuinely a means to protect society, or is it
an anti-drug policy?

"It's a draconian reach to enforce drug laws," the attorney says.