Pubdate: Tue, 13 Jan 2004
Source: Shepherd Express (WI)
Address: 413 N. 2nd, Milwaukee, WI 53203
Fax: (414) 276-3312
Copyright: 2004 Alternative Publications Inc.
Author: Doug Hissom


Will New 'Drugged Driving' Law Withstand Constitutional Scrutiny?

A new law that treats drivers with controlled substances in their blood 
similar to those caught driving drunk already has some legal minds 
questioning possible constitutional holes.

It's called Baby Luke Law, and it came about after a driver high on cocaine 
hit a vehicle driven by Michelle Logemann and the ensuing injuries killed 
Logemann's unborn baby, Luke. The baby was delivered by Caesarean section 
and lived 12 hours before he died of head injuries.

Even though the driver was high on cocaine, prosecutors could not charge 
him with driving under the influence since no laws governing drug 
impairment and driving were in place. He pleaded guilty to a charge of 
homicide by negligent use of a vehicle and was sentenced to two years in 
prison. If the driver was drunk at the time, he would have faced a 40-year 

But the new law--passed quickly in the Legislature this year--opens up a 
new area of law that not only pertains to driving while under the 
influence, but also concerns the traditional way burden of proof is determined.

The Baby Luke Law, which took effect in Wisconsin on Dec. 19, takes a 
zero-tolerance approach to drivers having controlled substances in their 
systems, including marijuana, cocaine, methamphetamines, LSD, PCP and GHB, 
among other derivatives.

Wisconsin joins only Minnesota, Iowa, Illinois, Indiana, Georgia, Utah and 
Arizona in adopting such a sweeping law.

The Wisconsin law, however, fails to take into consideration that there are 
no guidelines as to what constitutes impaired driving after using certain 
drugs--especially in the case of marijuana. Even the state Department of 
Transportation acknowledges that this law is not consistent with the normal 
requirements for revoking a license.

And in a major contradiction to the rhetoric about why the law was needed 
in the first place, drivers can defend themselves against citations for 
what's known as "driving while drugged" if they have prescriptions for some 
of the controlled substances Baby Luke Law targets, including 
methamphetamines, GHB and marijuana.

Presumptuous Legislation?

Milwaukee criminal defense attorney Alex Flynn calls the law "arbitrary and 

"There's a presumption of impairment," he says. "They're presuming zero 
tolerance and no other evidence is needed. And they're saying they can do 
this without expert testimony."

Flynn thinks the state should have to prove what detectable amount shows 

Of course, as with drunk driving suspects, the officer must observe some 
sort of erratic driving to pull the vehicle over. However, the state 
Supreme Court has upheld that an officer can pull someone over based on an 
anonymous phone call. And there is also the all-encompassing stop, called a 
"terry stop," where a vehicle can be pulled over because of a suspicion 
that something illegal might be going on. If a person refuses to submit to 
a blood test to check for drugs, their license is revoked for a year.

The strongest case against the law comes when a driver is charged with 
homicide after an accident, says Flynn.

Flynn maps out a scenario in which a driver could have smoked a joint the 
night before, driven somewhere the next morning and gotten into an 
accident, killing an unborn child of a victim in the accident, thereby 
getting charged with homicide, despite none of the parties even knowing the 
victim was pregnant and the driver never knowing he was high.

"When you're charged with murder, there's a big difference between when you 
last smoked pot and when the incident occurred," he says.

Flynn says that question should be challenged, since in a civil injury 
case, a court would throw out the fact that someone had marijuana in his or 
her system as evidence of negligence.

According to Laura Liddicoat, supervisor of toxicology at the state Hygiene 
Laboratory, evidence of most controlled substances can stay in the blood 
stream long after the high wears off. For example:

- -The so-called Delta 9 THC is in the bloodstream from four to six hours, 
but heavy marijuana users could have traces of THC in their blood all the time.

- -Cocaine stays in the system for six to eight hours, but its metabolites 
can stick around for 24 hours. While cocaine metabolites won't create a 
"high," they can be used as proof of immpairment under the Baby Luke Law. 
"So you probably shouldn't drive for 24 hours after using cocaine," 
suggests Liddicoat.

- -Heroin remains as heroin in the blood for only a few minutes before it 
transforms into morphine, which can last a day or two in the bloodstream.

- -Methamphetamines can stay in the system two or three days.

- -The club drug Ecstasy, whose popularity is waning somewhat, can remain in 
the bloodstream a day or two, says Liddicoat.

- -LSD is gone in about a day, with its highest readings registering after 
about three or four hours.

Attorney Flynn credits Wisconsin law writers with at least making the 
distinction between the intoxicating THC, known as Delta 9, and the two 
other types of non-impairing THC, which can remain in the bloodstream for 
up to a month. Other states with "drugged driving" laws, however, do not 
make this distinction, and the Baby Luke Law does allow for Wisconsin 
residents arrested for "drugged driving" in these states to lose their 

"Are we going to have mini-hearings here to determine which cannabis the 
driver was convicted on?" Flynn asks, noting that the burden falls on the 
defendant to prove that he or she wasn't impaired.

Alcohol: Riskier Than Pot

Including marijuana in the impaired-driving charge has sparked much debate 
here and elsewhere over its ability to impair. Many studies show that 
marijuana does not impair driving like alcohol does, and some even conclude 
pot users could be better drivers since they tend to drive slower and are 
aware of their intoxication.

A U.S. Department of Transportation study concluded that THC's effect on 
driving performance "appears relatively small." In one of the few attempts 
at measuring marijuana impairment on driving, the DOT study found that the 
effect of a maximum dose of THC was "certainly less" severe on driving 
performance than a blood alcohol level of .08% to .10%. The highest rates 
of THC intake were compared with blood alcohol levels between .03% and 
.07%. Even so, the study termed the effects "practically relevant but 
unexceptional in comparison with similarly measured effects of many medical 
drugs," especially compared to modest amounts of alcohol in the system, 
such as a .04% blood alcohol level.

According to the National Highway Traffic Safety Administration, in 1996, 
about 40% of drivers aged 16 to 20 say they drove within two hours after 
using marijuana or another illegal drug. It also found that the prevalence 
of "drugged driving" peaks among 19-year-olds at 16% and decreases as age 

Hasty Passage

State Rep. Tony Staskunas (D-West Allis), a member of the Assembly 
Judiciary Committee that held a public hearing on the bill and then 
overwhelmingly approved it, says the question of what constitutes 
impairment, especially in the case of pot, was a point of contention.

Staskunas agrees that it's almost impossible to measure impairment from 
controlled substances, a reason he says some lawmakers ultimately voted 
against the bill.

He voted for it, he says, because "I had to perform a balancing test. Am I 
going to err on the side of the innocent victim or the drug user? Without a 
law like this more incidents like Baby Luke are going to happen."

Staskunas' bottom line is that controlled substances are illegal to use in 
the first place.

The bill was introduced in August and passed both houses by November. Gov. 
Doyle signed it Dec. 4. Only three state representatives were opposed, 
Milwaukee Democrat Johnnie Morris, and Madison Democrats Terese Berceau and 
Mark Pocan. When state Rep. Mark Gundrum (R-New Berlin) first said he was 
going to introduce the bill, he said only drivers involved in an accident 
would come under scrutiny. Obviously, it changed substantially since then.

"Good laws are not passed in emotional times," says Flynn.

Reinforcing Flynn's observation, Staskunas admits, "We had a choice of 
passing that bill or doing nothing."

Constitutional Loopholes?

But will the law pass constitutional muster? Flynn says it's always hard to 
challenge a law, but there are some options here.

Due process questions come into play if a person is charged with two or 
more driving-under-the-influence violations. In the case of the Baby Luke 
Law, the defendant is not afforded an opportunity to call in experts to 
discuss the level of impairment. It takes away an important part of the 
defense, says Flynn. That could be where the law gets challenged, he suggests.

Strong facts are necessary for a challenge, he notes. "If a cop smells pot 
and the driver's eyes are bloodshot, that wouldn't be a good test case."

In cases where an expert can be called--say if an accident was involved--it 
comes at the expense of the defendant, which adversely affects those who 
can't afford high-priced legal help. And, Flynn warns, the practice of 
putting the burden on the defendant to prove innocence--instead of the 
state, which is the norm--is yet another change in the way justice is decided.

"We have to ask if this is genuinely a means to protect society, or is it 
an anti-drug policy?

"It's a draconian reach to enforce drug laws," the attorney says.
- ---
MAP posted-by: Beth Wehrman