On Tuesday, more than nine months after a crash on a snowy highway that killed his fiancee, John H. Harrison Jr. will likely become the first person in Dane County to be convicted of a drugged driving homicide.
The law under which the 18-year-old man was charged in May, five months after the death of Courtney Kuenzi-Kessenich, 17, was itself born from tragedy in 2003.
But some lawyers contend the law is unfair because it says that finding even the slightest detectable amount of a drug that could impair driving is enough to prove a driver is guilty of driving under the influence, the same as a driver caught driving with too much alcohol in the blood.
"Defendants don't understand it," said Assistant Public Defender Dennis Burke, who is Harrison's attorney. "They think they have to prove that they were impaired."Instead, under Wisconsin's drugged driving law, called the Baby Luke Law, police don't have to prove that a driver was impaired by drugs in the bloodstream. And if, as in Harrison's case, a death is involved, the driver can be charged with homicide by drugged driving.
The law is "extremely unfair as it creates a strict liability offense, something which is exceptionally rare in our criminal code," said Madison lawyer John Hyland. He represents Randall Zeck, 18, of Cross Plains, who was charged in May with homicide by drugged driving for a June 13, 2007, crash that killed Jason Randall, 30, of Cross Plains.
Hyland said Zeck and his parents "feel horribly" about Randall's death. But the fact that the law doesn't require proof that Zeck was actually impaired by drugs "bothers me, and them, and should bother every driver," Hyland said.
Prosecutors in Dane County have charged five people with homicide by drugged driving since the Baby Luke Law went into effect in December 2003, more than any other county in Wisconsin. Three of those people were charged within the last year.
Statewide, 33 people have been charged with homicide by drugged driving. Five of them were convicted on that charge, and most of those went to prison.
Most of the other 28 were convicted of some other form of vehicular homicide. Nine were convicted of homicide by drunken driving and seven were convicted of homicide by negligent driving.
Harrison is scheduled for a plea hearing on Tuesday, where he is likely to plead guilty or no contest to the homicide charge.
In Harrison's case, Burke said, the only possible defense would have been to prove police did not have probable cause to take Harrison's blood. But Burke didn't make that argument. A Good Samaritan at the scene told investigators the car "reeked of weed" and that there was a marijuana-filled cigar in the ashtray, he said.
"There was no way for me to say there wasn't probable cause," Burke said. "It's a tough, tough law. It's very difficult to defend against."
Last month, Susan Gorton, 46, of Cottage Grove, who struck and killed a bicyclist in February 2007, pleaded no contest to second-degree reckless endangerment. A homicide by drugged driving charge against her was dropped after prosecutors said they could not prove whether Gorton had smoked marijuana before or after the crash.
Shannon Anderson was charged in 2005 with homicide by drugged driving for a crash that killed a passenger in her car, Bobby Morrison, 20, on April 21, 2005. She pleaded no contest instead to homicide by negligent driving and got a year in prison.
Daniel Stowell faced homicide by drugged driving, along with homicide by drunken driving, for a crash that killed a man in Madison in 2004. Stowell received probation after he pleaded no contest to the drunken driving charge. Stowell is now serving a seven-year prison term after his probation was revoked.
The Baby Luke law was enacted after the traffic death in 2001 of Luke Logemann. Luke was delivered by Caesarean section after his mother's car was struck at an intersection in Milwaukee by a minivan driven by a man later found to have had cocaine in his blood. Twelve hours later, Luke died of injuries from the crash.
Bill and Michelle Logemann, Luke's parents, fought for a law prohibiting drugged driving. State Rep. Mark Gundrum, R-New Berlin, championed their cause.
Prosecutors in Wisconsin have filed simple drugged driving charges 1,131 times since 2003, court records indicate. While Dane County has charged drivers 68 times with drugged driving, Barron County in northwestern Wisconsin tops the state with 73 drugged driving charges.
Barron County District Attorney Angela Beranek attributes that number to well-trained police who look for the possibility of drugged drivers at every traffic stop.
"That is really excellent," Beranek said. "What a good thing to be known for, from a prosecutor's standpoint."
Some say the law goes too far. Madison lawyer Peter Steinberg, who is often critical of drug prosecutions, said the law takes an irrational approach.
"The thing about the difference between having a detectable amount of controlled substance in your blood versus having a scientifically demonstrable impairment because of the drug is the difference between a rational law and a law based on wanting to punish people based on using drugs any way we possibly can," Steinberg said.
A state appeals court, however, upheld the law in 2005, ruling in a Fond du Lac County case that it was not an unconstitutional overstep by police.
Madison lawyer Tracey Wood, who specializes in impaired driving cases, predicted that the law would see further challenges in appeals courts in the future.
"The problem as I see this law is that one doesn't need to be impaired to be convicted of operating with a controlled substance," Wood said. "It's a great tool for prosecutors and police to get convictions on these people when before they would have had to show impairment."
But Dane County Assistant District Attorney Jay Mimier, who is prosecuting the Harrison case, said he expects to see more drugged driving cases — as long as the burdened court system can handle them — as more police officers become trained to recognize signs of drug impairment.
Mimier defends the standard under the law, citing drunken driving as an example. Though the legal blood alcohol limit for drivers is 0.08 percent, he said, alcohol can impair a driver even at levels between 0.04 and 0.08 percent.
"It's not a charge," he said, "but it's part of the evidence you look at."
Not easy to set level
Laura Liddicoat agrees. Liddicoat is the director of the forensic toxicology program at the Wisconsin State Laboratory of Hygiene, which analyzes most of the blood samples that are used to prosecute drugged driving cases throughout Wisconsin.
Studies show that it would be difficult to set standard blood concentrations for intoxication with most drugs, as is done with alcohol, Liddicoat said. But in the case of marijuana, she said, the studies generally confirm that marijuana impairs physical and mental abilities, particularly when combined with alcohol.
People also don't realize that some prescription drugs impair their ability to drive. There has been an increase in impairment cases related to the sleep aid Ambien.
"People think that because a drug is prescribed by a doctor they should be able to take it and drive," Liddicoat said. "But that's incorrect under the law."
The lab can search for more than 300 compounds in blood. It examined nearly 3,000 samples last year. The workload at the lab, which is funded in part by a surcharge on drunken driving convictions, has more than doubled since the Baby Luke Law was enacted.
"Our mission is traffic safety," she said. "We'd love to do full alcohol and drug testing for everything that comes in so we know what's going on out there, but we don't have the resources for that."
The lab cancels drug tests of samples if its alcohol concentration is 0.101 percent or greater, more than necessary to get a drunken driving conviction.
But if law enforcement agencies want that sample screened for drugs, Liddicoat said, they're charged $200 for a full drug screen or $110 to look for just marijuana or cocaine.
dark12 added 3 Minutes and 31 Seconds later...
Wow, that would be horrible to be charged with homicide just for having a tiny amount of THC metabolites in your bloodstream. Especially if it was from smoking days before the accident.
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