Pubdate: Tue, 26 Dec 2000
Source: San Jose Mercury News (CA)
Copyright: 2000 San Jose Mercury News
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Author: Ann E. Marimow, Mercury News

DA CONSIDERS OPTIONS AFTER LOSING KAVA CASE

The San Mateo County District Attorney's office is weighing its
options after suffering the second setback in two months in its
efforts to prosecute drivers they believe are impaired after drinking
kava tea. But defense attorneys promise to fight back with their
contention that prosecution is pointless because kava isn't a drug.

District Attorney Jim Fox said he was baffled by a ruling Thursday
that dropped charges against a man who was pulled over for driving
erratically after drinking 23 cups of the relaxing tea.

San Mateo County Judge Marta Diaz didn't fault police officers for
stopping 26-year-old Sione Olive in June as he was swerving on Highway
101. But Diaz said there wasn't enough evidence to show that state law
applies to the tea, brewed from the powdered root of a pepper plant
native to the South Pacific.

Still, Fox is certain that kava's potential to impair a person's
ability to drive means state law does apply. He has requested a
transcript of the hearing to determine whether an appeal is
appropriate.

"If it applies to cold medicine, this one fits within the statute,"
said Chief Deputy District Attorney Steve Wagstaffe. "The only thing
that's different here is that kava is new. It's one we haven't had a
lot of experience with."

The judge's decision this week follows the district attorney's
decision in November to drop a similar case in which a deadlocked jury
voted 10 to 2 in favor of acquitting the defendant. Lawyers believe
the two cases are the first of their kind in California and among only
a few to be heard nationwide.

Scott Ennis, who represented the defendant in the first San Mateo
County case, contends an appeal by the district attorney would be a
waste of time because there's no proof that kava impairs.

"Any effect would be shortlived," said Ennis, who once drank 12 cups
of kava tea in five minutes to prove his point. "It leaves the system
so fast that it doesn't have a toxic effect."

Kava has been used by South Pacific islanders for thousands of years.
In the Bay Area, immigrants from Fiji, Samoa and Tonga often gather
for hours around vats of the bitter liquid to relax and socialize.
Olive, a resident of Mesa, Ariz., was driving back to his aunt's house
in East Palo Alto after drinking kava at a San Mateo church.

In the last decade, kava in capsules and tablets also has become
popular as an alternative to muscle relaxers and anti-anxiety medicine.

California law makes it illegal to drive while impaired by any
substance that affects the "central nervous system, brain, or muscles
of a person as to impair . . . his ability to drive a vehicle."

Defense attorneys for the two men charged with driving after drinking
kava say the law doesn't specifically apply to kava. They have accused
the district attorney's office of trying to write new laws.

But Wagstaffe said his office has successfully prosecuted people for
driving under the influence of legally prescribed drugs such as
anti-depressants and illegal drugs such as cocaine. And he says kava
is no different.
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