SETTING DRUG IMPAIRMENT LEVELS FAR OFF

Effect Fluctuates, State Toxicologists Say

State toxicologists said Tuesday that it would be virtually impossible for
Wisconsin to set specific drug impairment levels for drivers because that
science is in its infancy.

In fact, they said, it may never be possible to prove that every driver who
ingests the same level of the same drug is impaired because, unlike
alcohol, other drugs do not affect people the same way.

Only one state - Nevada - has set specific limits on the amount of drugs
drivers may have in their system before they are prosecuted. But Nevada's
levels are not based on proven impairment, said Wisconsin toxicologist
Patrick Harding, who called Nevada's law "the poster child for bad drug laws."

Eight other states instead have adopted "zero tolerance" laws making it a
crime for drivers to have any amount of illegal drugs in their system,
whether the drugs cause impairment or not, according to the National
Traffic Law Center, a division of the American Prosecutors Research
Institute in Alexandria, Va.

Four of those eight "zero tolerance" states are Wisconsin neighbors -
Illinois, Minnesota, Indiana and Iowa.

But in Wisconsin, where tavern industry interests have political clout,
lawmakers prefer to prosecute bad driving, not alcohol and drug presence,
Harding said.

Nonetheless, some prosecutors struggle to prove drug-impaired driving
because of the lack of a legal standard such as Wisconsin's 0.10
blood-alcohol limit in drunken driving cases.

In one Milwaukee County fatal car crash involving a driver who reports
showed had Ecstasy and marijuana in his system but no alcohol, a prosecutor
opted against charging the driver with homicide by intoxicated driving
because of the difficulty in proving beyond a reasonable doubt that his
driving was impaired.

Instead she charged the driver with homicide by negligent driving. The
difference in the maximum penalty upon conviction is 40 years in prison vs.
only two years in prison for homicide by negligent driving.

In Waukesha County, District Attorney Paul Bucher is researching whether he
can prove that the driver of a Mack truck that police say caused a fatal
crash was impaired by the amount of marijuana tests showed he had in his
system.

DA Not Convinced

Bucher scoffed at toxicologists' comments that setting drug impairment
levels would be difficult if not impossible.

"That's ridiculous," Bucher said. "I totally disagree that they could not
come up with a level of, say, Delta 9 THC (a metabolite of marijuana used
in blood tests).

"Why can't they simply say at five nanograms per milliliter" a driver is
impaired, Bucher asked.

Harding and several other toxicologists said that if a drug limit were set
at an extremely high level it would be more likely that all drivers with
that level would be impaired.

Were lower levels to become the standard, experts said, some drivers tested
may be found able to drive well, while others may not, depending on their
individual tolerance to that drug.

"There is such a huge variation in response to drugs at the same
concentration in people," Harding said.

Laura Liddecoat, Harding's supervisor at the Wisconsin Laboratory of
Hygiene, said that years of study of alcohol abuse and driving have proved
that all drivers tested became increasingly impaired the more alcohol they
drank. But replicating those studies for other drugs, she said, is
difficult because researchers ethically can't dose subjects with illicit
drugs to gauge their driving abilities.

Also, many drivers take multiple drugs making it more difficult for
researchers to say which drug caused what problem. Some drugs on their own
may not cause impairment but can be dangerous in combination with alcohol
or other drugs, Liddecoat said.

Tests show that drivers also are getting behind the wheel after taking
excessive levels of prescription drugs, painkillers and over-the-counter
drugs, even cold medication, she said.

"The drugs are three to five times the therapeutic levels," she said.

Motorists even have driven after taking Ambien, a prescription drug used to
combat insomnia, Liddecoat said. "It's supposed to put them to sleep at 300
nanograms per liter and people are driving at 1,200 nanograms."

Marcia Cunningham, director of the National Traffic Law Center, said
Tuesday that prosecutors nationwide are clamoring for guidelines indicating
how much of various drugs make driving unsafe.

While "zero tolerance laws" may not be the most preferable approach, she
said, "I cannot see how (they) can be anything but helpful."

Defense lawyer James A.H. Bell, of the National Association of Criminal
Defense Lawyers, said defense lawyers prefer a requirement that prosecutors
must prove impairment.

Chemists and toxicologists around the country are trying to meet
prosecutors' demand for standards.

A Washington state toxicologist is studying levels of drugs found in
drivers who caused fatal crashes and is comparing that data with the
officers' observations of the drivers behavior, Liddecoat said.