A new Wisconsin state law declaring that drivers with "any detectable amount" of illegal drugs in their systems are impaired is being challenged by defense attorneys, the Milwaukee Journal-Sentinel reported Sunday. The law is known as the "Baby Luke" law, named for an infant who died in a crash where the driver was high on cocaine, and is in line with a federal offensive to crack down on "drugged driving" nationwide (http://stopthedrugwar.org/chronicle/329/driving.shtml).
Now, attorneys in two of the earliest cases prosecuted under the law, which went into effect in December, are challenging it. The defense attorneys are challenging the law's "zero tolerance" provision, which presumes anyone showing any trace of an illicit substance is impaired, unlike the drunk driving law, which sets a blood alcohol limit -- not zero -- above which impairment is assumed.
"Unlike consumers of alcohol for which empirical evidence shows a relationship between blood level and impairment, drug users can be penalized for the mere use of a restricted substance even after considerable time has passed, so long as it is allegedly detected even under what is here an undefined standard," wrote defense attorney Laurence M. Moon, who has filed a pre-trial motion for a Milwaukee man being prosecuted under the law. "This discrepancy is irrational."
"Not only does the statute impermissibly create a presumption of guilt, but the evidence establishing guilt may have no bearing whatsoever on whether the presence of the restricted substance caused the incident," Moon elaborated for the Journal-Sentinel. "The wording of (the law) indicates that the defendant must prove that he was entirely blameless."
Moon is defending Eric B. Gardner, 33, of Milwaukee, who faces a felony charge of causing great bodily harm while driving under the influence of a controlled substance -- drugged driving. Gardner ran into a tree, injuring a passenger, on December 20, one day after the law went into effect. Blood tests showed no alcohol, but did find traces of cocaine. Gardner said he fell asleep at the wheel. Cocaine byproducts can remain in the system for up to 72 hours, Moon noted.
According to the Journal-Herald, Moon is not the only attorney raising a constitutional question about the new law. Bruce Jacobson, a Waukesha defense attorney, told the newspaper he is considering filing the same motion.
They could have a chance. "It is very typical for the question to be raised about whether the new law is constitutional," said Janine Geske, a distinguished professor at Marquette University Law School and former state Supreme Court justice. "Because this law is not like operating while intoxicated and there is no specified amount, I think that is a serious, legitimate issue to raise," she told the newspaper. "Whether it will rise to the level of making it unconstitutional remains to be seen."
Meanwhile, prosecutors in at least one county told the Journal-Sentinel they were seeking harsh penalties, akin to those for high-blood alcohol level drunk drivers, for convicted drugged drivers. "We discussed this within the office, partly because it's so difficult to determine the levels at which impairment takes effect," Walworth County District Attorney Phillip Koss said. "We're taking the approach that these drivers should be placed at the high end of the sentencing range because we have no way of measuring impairment and because these drugs are illegal to begin with."