Pubdate: Thu, 11 Jan 2001
Source: San Jose Mercury News (CA)
Copyright: 2001 San Jose Mercury News
Contact:  750 Ridder Park Drive, San Jose, CA 95190
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Author: Ann E. Marimow, Mercury News

APPEAL IS PLANNED IN KAVA-TEA CASE

DA Contends Drug Statute Applies To Driving Vehicles

Despite two recent defeats, the San Mateo County District Attorney's
Office isn't bending in its efforts to prosecute drivers suspected of
being impaired after drinking kava tea.

District Attorney Jim Fox said Wednesday his office would appeal a
judge's decision three weeks ago to dismiss charges against a man who
was pulled over for allegedly weaving in traffic after drinking 23
cups of the relaxing brew.

"The judge did not have the power to deprive the people of a trial,"
Fox said. "The effect of kava is a question of fact for the trier of
fact, which will be a jury."

Kava tea, made from the powdered root of a type of pepper plant, is a
longstanding tradition among Pacific Islanders, who drink it to relax
and socialize. That tradition has spilled into the mainstream in the
past decade as kava root in capsules and tablets has been increasingly
marketed as a natural alternative to muscle relaxers and anti-anxiety
medicine.

In November, Fox's office dropped its first driving under the
influence case involving kava after a jury deadlocked 10-2 in favor of
acquitting the defendant. The case is believed to be the first in
California and among only a few to be tried nationwide.

In San Mateo County's second kava case, Fox says Superior Court Judge
Marta Diaz was wrong to grant a defense motion to dismiss the charge.
Fox contends that state law applies to any substance -- cold medicine,
painkillers or cocaine -- that impairs a person's ability to drive.

But defense attorneys familiar with the case say the district
attorney's efforts are a waste of time and that prosecutors should
turn to the Legislature, not the courts, if they are concerned about
kava-impaired drivers.

Scott Ennis, a Stockton attorney who represented the defendant in the
first San Mateo County kava case last fall, said Fox's office still
won't be able to convince a jury that kava impairs driving.

"How can they possibly say this?" Ennis said Wednesday after
learning of Fox's decision. "There's no way they're going to be able
to prove it's a drug."

When Diaz dismissed the second case in December, she said the
California Highway Patrol officer was correct in stopping Sione Olive,
26, of Mesa, Ariz. The officer said Olive was driving erratically on
Highway 101 en route to his aunt's house in East Palo Alto. Earlier in
the day, Olive reportedly had been drinking kava tea at a San Mateo
church.

Still, Diaz dismissed the charge because she said the district
attorney hadn't presented enough evidence to show that state law
applies specifically to kava.

"I'm totally unfamiliar with this substance, as to whether it only
impairs one person in the universe or anyone who ingests it," Diaz
said. "I don't know what it is."

Fox's appeal means a three-judge appellate court panel will review
Diaz's decision.
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