(25 Oct 2004)
DUI Conviction Spurs Prosecutors
Emboldened by the first drunken-driving conviction of a kava-drinking motorist in California -- and only the second nationwide -- San Mateo County prosecutors are on a crusade to lock up drivers intoxicated by the herbal brew.
The drive comes as the county's crime lab is teaming up with the San Francisco medical examiner to become the first on the West Coast to cook up a kava equivalent to the blood-alcohol test used to jail drunken drivers.
The unprecedented push is alarming some in the South Bay's 15,000-strong Pacific Islander community, who fear they'll be nabbed for ingesting the sacred tea central to their cultural rituals and revelries.
"The legal system is being used to restrict our traditions," said Chester Palesoo of East Palo Alto, head of the Pacific Islander Community Center.
San Mateo County Deputy District Attorney Chris Feasel, who won the conviction, said officials aren't trying to outlaw kava, which is classified by the Food and Drug Administration as a nutritional supplement sold to relieve anxiety.
But, said Feasel, "Someone who drinks kava and gets sleepy is dangerous and shouldn't get behind the wheel."
In California it's against the law to drive a car while impaired by any substance, whether prescription medicine or merlot. California Highway Patrol officials estimate kava represents less than 1 percent of the roughly 1,800 annual DUI arrests in southern San Mateo County.
Feasel said that in the past several years, about a dozen Peninsula drivers have been pulled over for driving under the influence of kava. All have been acquitted.
Peni Basalusalu was not so fortunate. The San Bruno man served 30 days in San Mateo County Jail on a misdemeanor DUI charge after a CHP officer spotted the 41-year-old weaving between lanes and along the shoulder of Highway 101 near Woodside Road this summer.
Prosecutors said the Fiji-born Basalusalu had consumed three bowls of kava at a late-night gathering. When he was pulled over at 1:30 a.m., he failed roadside sobriety tests that measure reflexes and visual alertness.
Scott Newbould, Basalusalu's lawyer, said the man was driving erratically because he was distracted by the bright lights of a highway construction zone. He said the CHP couldn't prove how much his client ingested.
Prosecutors, however, said science was on their side. Feasel said they won a conviction thanks in large part to a 2003 Australian study that found that larger doses of kava impaired a person's motor function and had the same anesthetizing affects as hypnotic drugs like Valium.
Though not classified as a drug by federal health officials, kava is considered to be a depressant when in concentrated form. Researchers at Australia's Menzies School of Health Research said the side effects increase with the potency of the tea, which is made from the root of the South Sea pepper plant.
But unlike with alcohol, people drunk on kava are often able to think straight, experts said, which could make them more confident about getting behind the wheel.
"They may be able to verbally do the alphabet backward," said Cathi Dennehy, an associate professor of pharmacology at the University of California-San Francisco, who testified at Basalusalu's trial. "But if you ask them to touch their nose and walk a line 10 times, they may not be able to."
Armed with this research, San Mateo County prosecutors are gearing up to win several more kava DUI cases that are currently headed to trial. One local man is accused of swerving along the road and slamming into a parked car. Several others were allegedly weaving at slow speeds along Peninsula highways.
Prosecutors say Salt Lake City is the only other place to win such a conviction, when a Tongan man was found guilty in 1996 of driving under the influence of kava.
Scientists there have concocted a test to help identify kava in a driver's system -- something scientists in the Bay Area crime lab are hoping to match.
Surrounded by whirring machines used to analyze cocaine, psychedelic mushrooms and methamphetamines, Kenton Wong of San Mateo County's crime lab is trying to create a test that will detect kava in a fashion similar to the 0.08 blood-alcohol level test -- the legal limit in California. Officials hope to detect kava in the body and to define how much will render someone too intoxicated to drive.
Wong is collaborating with the San Francisco Medical Examiner's Office, which has a high-performance liquid chromatography machine that can isolate the amount of kava byproducts in urine. They are seeking to launch the effort by the first of the year.
Pacific Islanders in the South Bay are incensed that kava-drinking social events could be seen by police as the equivalent of keggers.
Palesoo, of the Pacific Islander Community Center, recalls drinking the peppery tea from coconut bowls when his father passed along the title of chief of an American Samoan family to him. He said he is planning to mobilize community members to insure Basalusalu's conviction is the last.
"We are citizens," he said. "We want equal justice."
Peter Lynch, a San Mateo County deputy district attorney, said drinking kava in moderation shouldn't inhibit rituals -- and could spare others from injury. He hopes the prospect of a maximum $10,000 fine and a month in jail could act as a deterrent.
"There's no law to say you can't have kava," said Lynch. "But if you are going to drink enough to impair you, just don't go behind the wheel, take a 4,000-pound piece of metal and hurtle it down the road."
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