LACK OF LEGAL STANDARDS IMPEDES PROSECUTION OF DRUGGED DRIVERS

In Pewaukee, the driver of a fully loaded, 72,120-pound Mack truck
drove through a yellow light and slammed into a car that was turning
in front it.

The car split in two. Its passenger, Alejandro Vera, 18, was killed.

The truck driver hadn't had a drop of alcohol. But he did have
marijuana in his system, police say.

Four weeks earlier in Milwaukee, a car filled with teens returning
from an all-night rave in Kenosha suddenly veered off I-94 at about
5:30 a.m., prosecutors say.

The 19-year-old driver never braked as the car traveled 385 feet
through a grass ditch, went airborne, flipped and came to rest atop a
guardrail.

Fifteen-year-old Mandy Rockett, asleep in the back seat, died. The
driver and three other passengers were critically injured.

Again, the driver had no alcohol. But he had Ecstasy and marijuana in
his system, according to a criminal complaint.

In Wisconsin, it's illegal to drive under the influence of alcohol or
drugs. For alcohol, that means a maximum 0.10 blood-alcohol level.

But how much marijuana do you have to smoke to be "under the
influence?" How much cocaine? How much Ecstasy?

For police, prosecutors and toxicologists, the quick answer is "we don't know."

No standards set

Because of the lack of a legal standard for quantitative impairment
like the 0.10 for alcohol - and the fact that police officers often
don't detect drugged drivers, few are being convicted of driving
under the influence of drugs. That's true even when a fatality occurs.

The state tracks every operating-while-intoxicated conviction and
every crash involving drunken drivers, but statistics on drugged
drivers are almost non-existent.

"Any drug activity (by drivers) is definitely underreported," said
Carol Karsten, alcohol program manager of the state Department of
Transportation's Bureau of Transportation Safety.

"Part of the frustration in the whole area is not being able to have
numbers to identify the problem."

Some national statistics have put the number of deaths in
drugged-driving crashes at 8,000 to 22,000 a year, said Karen Tarney,
a Bayside woman who created Citizens Against Drug Impaired Driving
after she was injured in a crash involving a suspected
cocaine-impaired driver.

"It's just beginning to be tracked nationally," Tarney said.

When Milwaukee County Assistant District Attorney Karen Loebel
reviewed the Mandy Rockett fatality from last July, she had reports
from a state toxicologist saying he "believed" the driver had enough
Ecstasy in his system to be impaired.

But the toxicologist warned Loebel that he had no scientifically
accepted proof to back up that belief.

The marijuana the driver also had in his system was "very low" and
"not a factor in the accident," another toxicologist opined.

After studying the issue, Loebel wasn't confident she could prove a
charge of homicide by intoxicated driving. Instead, she filed a
charge of homicide by negligent driving.

The difference in the maximum penalty is huge: 40 years in prison vs.
two years in prison.

Martin Kohler, the defense attorney representing that driver, Justin
Oleszak, 19, of Shorewood, said Oleszak plans to plead guilty or no
contest to the negligent homicide charge in court Wednesday.

Had Loebel filed the stiffer impairment charge, Kohler said, "we
would have fought it."

"I don't think he was under the influence," Kohler said. "I think it
was the hour of the night, and he fell asleep."

Taking the wheel

Loebel's criminal complaint says that Oleszak agreed to drive when
the car's owner, a 17-year-old girl, said she was too tired. As
Oleszak drove from Kenosha to Milwaukee, the other four in the car
fell asleep, the complaint says.

"I think that everybody believed that he (Oleszak) was in the best
shape," Kohler said. "He was feeling fine when he left."

That's the problem with taking rave drugs, said Bill Kraus, a retired
Milwaukee police officer who trains officers in detecting drug
impairment.

Initially, stimulants such as Ecstasy and cocaine can pep someone up,
giving the kick to stay awake and dance for hours. But eventually,
Kraus said: "They crash, and they fall asleep. They're so overly
tired that they fall asleep behind the wheel."

Kraus - with the support of Tarney's group - is leading a statewide
effort to crack down on drugged driving.

That means making sure officers take blood samples from those they
believe are on drugs, just as they would with a suspected drunken
driver, Kraus said.

And when the blood results confirm that drugs are present, he said,
officers need to be able to give juries corroborating information to
prove that the drugs caused impairment.

That is the goal of a new training program Kraus runs. After
completing the program, officers become certified as "drug
recognition experts," or DREs.

The DRE program started in Los Angeles in the 1970s but didn't make
it to Wisconsin until 1995, when Kraus was one of the first 11
certified here.

There are now 61 certified DREs in Wisconsin - a fraction of the
14,500 sworn law enforcement officers in the state. And 16 more are
in training now. Nationally, there are about 5,000 DREs in about 35
states, Kraus said.

DREs use physical and quasi-medical exams to determine what category
of drugs a person may have ingested before blood results return many
weeks later. Those evaluations have not been tested for their
admissibility in Wisconsin courts.

But Joe Keil, a DRE and Manitowoc County Sheriff's Department deputy,
testified without problem three years ago in a trial that resulted in
an operating while intoxicated conviction for a driver with marijuana
in his system and a blood-alcohol level of 0.04, much less the 0.10
limit for drunken drivers.

Keil told jurors how DREs conduct the typical field sobriety tests
but also check the person's pulse, blood pressure, body temperature
and pupil size and movement, he said. DREs inspect a person's mouth
and nose for signs of drugs, such as heat bumps or a green tinge on
the tongue or carbon deposits behind the teeth.

They all give telltale signs of various categories of drugs - central
nervous system depressants; stimulants; hallucinogens; narcotics;
inhalants; and marijuana, he said.

Showing jurors what drug symptoms and evidence officers found
bolsters proof of impairment, Kraus said.

"What we're trying to do is change society's attitude regarding not
only drinking and driving but drugs and driving," he said.

Heavy marijuana use can slow a driver's perception of time, space and
distance, he said. Cocaine can cause someone to speed, change lanes
without signaling or impede traffic.

"Would you want someone who's been smoking pot to be driving behind
you?" Kraus asked.

Waukesha County District Attorney Paul Bucher is reviewing whether
the truck driver in the fatal accident in Pewaukee can be charged
because of the marijuana tests indicate were in his system. Bucher
would like to see the medical and legal communities develop numeric
standards for drugs like those for alcohol, he said.

Or, he said, the state should enact a law in which the presence of
any illicit drugs in a driver's system is a crime.

"You shouldn't have them in your system at all," Bucher said.