PROSECUTORS SEEKING TO CLOSE 'DRUGGED DRIVER' LOOPHOLE

To demonstrate the dulling effects of alcohol, just put someone in a
driving simulator, start serving booze and watch the reaction times get
sloppier with every shot.

The phenomenon is so well documented that Utah lawmakers have decreed
drivers with a blood-alcohol level of 0.08 or more are legally drunk.

But what about marijuana, methamphetamine, cocaine or heroin? Because they
are illegal, there is less hard evidence about how different levels of
these drugs affect a driver's reflexes. That lack of scientific proof means
that when "drugged" drivers kill or injure others, they may face lesser
penalties than those who drink and drive.

Utah prosecutors hope to close that loophole in the law during the 2003
Legislature. Those in Salt Lake County were frustrated by the disparity in
a recent case in which they believe marijuana contributed to a fatal car
accident.

Jeffrey S. McDonald, 21, of West Valley City, initially was charged with
third-degree felony automobile homicide in the Jan. 25, 2000, death of his
friend and passenger, 18-year-old Lucas W. Hale.

McDonald, who crossed the median and struck an oncoming car on state Road
173 near 4550 West (5415 South), also was charged with third- degree felony
counts of DUI with serious injury for harming two women in the other car.

Marijuana was found in McDonald's car and a blood test confirmed "either
recent use or daily chronic use of smoked marijuana" prior to the crash.

Utah Health Department toxicologist Barbara Jepson was prepared to testify
the blood test indicated "likely impairment," according to charging
documents. Prosecutors decided that assertion would be insufficient to win
at trial.

McDonald accepted a plea offer, pleading guilty in 3rd District Court to
lesser class A misdemeanor crimes of negligent homicide and reckless
endangerment. Instead of a possible prison term for auto homicide, McDonald
was placed on probation, ordered to serve 2 days in jail and spend 500
hours talking to students about the dangers of drugs -- a sentence based
partly on the wishes of the victim's family, who were not seeking harsh
retribution.

Although charges against drugged drivers for killing or injuring others are
rare, prosecutors believe they should face penalties equal to those of
drunken drivers.

"There is a great disparity in the law," said Deputy Salt Lake District
Attorney Kent Morgan. He says drivers who kill while under the influence of
illegal drugs may -- under certain circumstance -- have an advantage in
court over those who kill while driving drunk.

Utah law makes it a Class B misdemeanor to drive with any measurable
controlled substance, or the residue of a controlled substance, in one's
body. The law makes an exception for prescription drugs at dosages approved
by doctors.

But if the same driver causes a fatal accident, the standard for a more
serious felony charge is higher. Utah's auto homicide statute requires both
the presence of a drug and a showing that the drug rendered the driver
"incapable of safely operating the vehicle."

If the driver has been drinking alcohol, he is assumed to be impaired if
his blood-alcohol level is at least 0.08. But in a case where illegal drugs
are suspected, a blood test may be of little help to prosecutors, since no
similar threshold exists.

Prosecutors instead must prove impairment by relying on witnesses who
observed erratic driving or a police officer who performed a field sobriety
test on the driver. Without proof of impairment, prosecutors may be stuck
with charging a drugged driver with only a Class B misdemeanor DUI -- even
in cases where lives are lost.

In McDonald's case, there were no witnesses to his driving pattern prior to
the crash. And because McDonald was himself injured and taken to a
hospital, no field sobriety test could be performed.

Paul Boyden, executive director of the Statewide Association of
Prosecutors, hopes to see a bill before next year's Legislature that
removes the necessity to prove impairment in drugged driver cases.

"What we're basically saying is, if you have drugs in your system, and it's
illegal, that ought to count for about the same culpability as having too
much alcohol," Boyden said.

But defense attorney G. Fred Metos, who represented McDonald, argues such a
law would be too arbitrary.

"There ought to be some cause-and-effect relationship between drug use and
injury or death," Metos said. "There is very little, if any, testing to see
how these drugs affect people's ability to drive.

"The question is, is it the drug use that caused the accident, or some
other factor?"

He noted that when McDonald's accident occurred, "it was a dark and foggy
night, the road was wet, it was difficult to see."

Metos added: "In 20-some years of practicing law, this is first one of
these cases I've heard of. It's an unusual case. And one case where the
prosecutor has some proof problems is not a reason to go to Legislature and
change the law."

One study of the effects of marijuana on driving occurred in the
Netherlands, where the drug is legal. Tests performed by the University of
Limburg in 1994 and published in the Journal of the International Hemp
Association found marijuana had a relatively small adverse effect on
driving performance.

Still, the report concluded, "one can still easily imagine situations where
the influence of marijuana smoking might have a dangerous effect..."