Pubdate: Sun, 06 Apr 2003
Source: Commercial Appeal (TN)
Copyright: 2003 The Commercial Appeal
Contact:  http://www.gomemphis.com/
Details: http://www.mapinc.org/media/95
Author: Lawrence Buser
Bookmark: http://www.mapinc.org/testing.htm (Drug Testing)

CRASH VICTIM'S FAMILY FIGHTS TO CHANGE LAW

Drugged Driving

Mike Holliday was in a good mood that Friday evening 20 months ago when he 
dined with his wife, Donna, and another couple at Cafe St. Clair on 
Pickwick Lake 115 miles east of Memphis.

The 54-year-old founder of the Holliday's Fashions women's clothing stores 
was looking forward to a Labor Day at the house where he, his wife and 
their three sons had spent many weekends.

"He was happy and excited about being up there for the week," says close 
friend John Meeks, a Memphis businessman. "He had really just gotten the 
business and his life to a point where he was going to be able to slow down 
and enjoy life."

But the weekend was soon to turn tragic.

As Holliday and his wife left the restaurant that is nestled in a 
picturesque harbor among hundreds of yachts, pontoons and ski boats, Meeks 
and his wife, Sandra, followed in their car.

It was approaching 8:30 p.m. and now dark and raining.

Less than a mile up the winding tan asphalt of Tenn. 57, Holliday hit the 
brakes of his white Isuzu Trooper. The unloaded trailer of an oncoming 
logging truck had crossed into his northbound lane as it rounded a downhill 
curve.

"I saw the top of Mike's car explode and it had stopped and was actually 
coming back at me," recalls Meeks, who still has difficulty talking about 
that night. "With the lights and the glass and the rain it was like an 
evil, sort of horrible thing to witness. My brain just could not compute 
what was happening."

Holliday was killed instantly. Donna Holliday, also 54, who was in the 
passenger seat, suffered serious head injuries, a broken pelvis, a broken 
collarbone and ligament damage to her neck and spine.

The trailer rotated counterclockwise as it rode up and over the Trooper, 
coming to rest across both lanes of traffic. It separated from the Mack 
tractor, which spun off the road and into a depression between two private 
drives.

Driver James D. Epperson, 45, of Tishomingo, Miss., was not seriously injured.

Tennessee Highway Patrol investigators concluded the crash occurred because 
the logging truck's trailer was in the wrong lane.

Blood tests showed Epperson had marijuana ingredients in his blood.

A records check showed he had been charged with 30 driving-related offenses 
since 1992, including driving while impaired, speeding, running a stop 
sign, expired tags and no mud flaps.

In the crash that killed Mike Holliday, Epperson was charged with nothing. 
There was no criminal indictment, no traffic citation.

Troopers who observed Epperson at the crash scene saw no sign of 
impairment. A state prosecutor said there was no sign of recklessness.

Holliday's family was stunned. The sons pressed state prosecutors for some 
type of charge but got nowhere.

"You have a situation where somebody's clearly in the wrong and he's killed 
somebody close to you," says Brad Holliday, 32, the oldest of the three 
sons. "But the authorities don't find it within their power or aren't 
willing to exercise their power to make sure justice is served."

Now they're trying to turn their personal tragedy and their frustration 
with the legal system into a tribute to their father's memory. The family 
is trying to get state lawmakers to establish a drugged-driving law that 
might make it easier to prosecute offenders.

"We want to make it a little more clear-cut for them, to close the 
loopholes," says Holliday, whose brothers are Clay, 29, and Andrew, 25. "An 
injustice was done to my parents and to society as a whole when someone is 
allowed to escape a situation like this without punishment."

A charmed life

If Michael Edward Holliday seemed to lead a charmed life, it was largely 
his own doing.

He was a star athlete, a military veteran and a former nondenominational 
seminarian. He also was an entrepreneur who started with a vacant building 
in Millington in the mid-'70s and built a $25-million-a-year women's 
apparel business.

"He wasn't a guy who had everything in life given to him," said Meeks. 
"What he had and what he accumulated he did it on his own."

Holliday's Fashions now has 23 stores with 350 employees in five states.

"In business he was something of a visionary," says Jules Wakschal of New 
York, a resident buyer for a number of clothing stores, including 
Holliday's for 23 years. "He had a terrific eye for fashion. I would tease 
him that he was going to be the biggest one-man business around because 
even with all his employees he drove the business with his ideas."

Holliday made monthly trips to New York to meet with Wakschal, survey the 
fashion world and negotiate deals. Wakschal says Holliday treated 
associates and employees like family.

"He was admired not only by his wife and his family," adds Wakschal, "but 
by everybody in the industry."

In August 2001, Holliday and friend Grant Fenner made an ambitious 110-mile 
circumnavigation by sea kayak of Isle Royale on Lake Superior near the 
Ontario/Minnesota border. High winds, high waves and angry thunderstorms 
were their constant companions for the week. Holliday thrived on it.

 From an entry in his journal dated Aug. 14: "I was surprised at how high 
the swells were so early. The wind was strong and it was already raining - 
the clouds seemed to make it impossible for God to see us in case we needed 
help - a real possibility today."

Later that month, on Friday, Aug. 31, it was raining again as Holliday 
headed down a two-lane highway near Pickwick Lake in Hardin County.

Donna Holliday told of her loss in a recent E-mail:

"My sons have been a great source of strength for me. They lost so much, a 
father, a mentor, a friend. Mike was the kind of man that you called for 
advice or help with anything, or to share an adventure and always just for fun.

"The boys also put their own lives on hold to help me recover physically 
and emotionally. Some days I see a light above the clouds and some days are 
very dark, but I know that God will bring me out of this nightmare. I pray 
that something good, something that might save another person's life will 
come out of our loss."

Alcohol proof easiest

In Tennessee, driving under the influence includes not only alcohol, but 
also any other intoxicant, narcotic or other drug, including prescription, 
that produces central nervous system effects.

Proving the influence of alcohol is the easiest because there is a 
measurable limit - .10 now, .08 starting July 1 - at which a driver is 
presumed to be intoxicated.

Most states, including Tennessee have no comparable measurement to use when 
other drugs are involved.

"A driver is much less likely to be prosecuted for impaired driving under 
the influence of illegal drugs than under the influence of a legal 
substance, alcohol," says Michael Walsh, PhD, of Bethesda, Md., a former 
director of the President's Drug Advisory Council.

Sixteen states have some form of comparable measurement - called per se 
laws - for determining when a driver is in automatic violation of the DUI 
statute. Eight of those states have zero tolerance laws that ban the 
presence of any prohibited substance.

"Typically in a state like Tennessee the prosecutor would have to prove 
that the guy was impaired because of the drug. That's a very high standard 
to link the impairment directly to the drug. It's hard to prove and that's 
why the per se law makes it easier," Walsh says.

In Nevada, 21-year-old Jessica Williams was sentenced to 18 to 48 years in 
prison after she was convicted of killing six teenagers in 2000 while 
driving with marijuana in her system that exceeded the amount allowed by 
state law.

Defense lawyers say the drug limit does not necessarily mean a driver is 
impaired. In fact, jurors did not convict Williams for being impaired, but 
for having the prohibited substance in her blood.

(The conviction was upheld on appeal in state and federal courts, but a 
trial judge last month granted Williams a new trial saying the law does not 
identify one of the marijuana byproducts as an illegal substance.)

The 1999 Nevada law says a driver with 2 nanograms or more of marijuana's 
active ingredient, THC, per milliliter of blood is presumed to be impaired. 
Williams's blood was tested at 5.5 nanograms.

In the crash that killed Holliday, a blood sample taken two hours later 
from truck driver Epperson showed 32.3 nanograms of THC per milliliter of 
blood.

"That would be 16 times the amount in our marijuana statute," says Gary 
Booker, director of the vehicular crimes unit of the Clark County District 
Attorney's Office in Las Vegas, where he prosecuted the Williams case. "It 
definitely would be a case we would prosecute.

"Marijuana will be in your blood for only five, six or seven hours, so if 
it was in your blood we know for sure it was recently ingested."

In a federal lawsuit the Hollidays have filed against Epperson and several 
other defendants, toxicologist Dr. David Stafford said in a report he 
believes the truck driver was under the influence of marijuana at the time 
of the fatal crash.

Stafford, who was hired by the plaintiffs, said the THC level is consistent 
with marijuana use within four to five hours prior to when the blood sample 
was drawn. The effect, Stafford said, would be prolonged reaction time, 
euphoria, relaxation and impairment of the ability to operate a motor vehicle.

"I would vehemently disagree with that," says attorney Joe Lee Wyatt, who 
represents Epperson in the civil suit. "Obviously the highway patrol didn't 
think it."

An expert he hired, physician Dr. Kevin Merigian, said there is no 
laboratory data to correlate the impairment Staf ford cites with blood 
levels of marijuana THC.

Further, Merigian questions the accuracy of the levels reported in 
Epperson's blood sample, levels which the doctor said would mean the truck 
driver would have been smoking marijuana while officers interviewed him 
after the crash. "The results in this case are suspicious," the doctor said 
in his report.

Epperson declined to discuss the crash, citing the pending lawsuit.

Prosecutor John Overton of Savannah, Tenn., said he considered charges of 
vehicular homicide but had no evidence of reckless driving, intoxication or 
impairment.

The prosecutor eventually presented the case to a grand jury for review in 
March of last year, but he did not seek an indictment.

"All he (Epperson) does is hit the brakes and the trailer begins to come 
around," the prosecutor said. "That's awfully hard to say that the action 
in and of itself is willful and wanton disregard for the safety of persons 
and property by the fact that he stepped on the brake. It just wasn't there."

But with a crash that caused a violent death, some prosecutors say they 
would have had the driver indicted and let a trial jury decide whether a 
crime was committed.

"Why wouldn't you?" said Shelby County Prosecutor Bobby Carter, director of 
the narcotics prosecution unit. "There is criminally negligent vehicular 
homicide. Driving a log truck too fast in the dark and not keeping it under 
control? Maybe that would be criminal negligence. You don't need impairment."

Last November Walsh announced the results of a major state-by-state study 
of laws on driving under the influence of drugs (DUID). The study showed 
that there is no uniformity to laws and that while drunk drivers are 
prosecuted, there are millions of drugged drivers being overlooked.

Tennessee prosecutors, including Overton, say a DUID law defining specific 
limits, as with alcohol, would indeed make it easier to prosecute those 
drivers.

"James 'Wally' Kirby, executive director of the Tennessee District 
Attorneys General Conference in Nashville, said, "If someone brings it up, 
we'll certainly take a look at it, but it really hasn't come up at this point."

The Hollidays, who have contacted legislators and other state and federal 
officials, hope that will change.

"It's hard to think of anything good coming out of it," says Brad Holliday, 
"but I'd hate to see somebody go through the same types of frustration that 
we've been through."
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