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May 2004
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‘Drugged driver’ law facing court challenges

It’s really, really bad law and the Milwaukee Journal-Sentinal reports that it’s about to get some constitutional scrutiny at the state level.

A new law aimed at so-called drugged drivers is facing constitutional challenges as the first prosecutions under the legislation go to court.

Instead of establishing a threshold by which drivers who have used illegal substances could be judged to be impaired, lawmakers have made it unlawful for drivers to have “any detectable amount” of drugs such as cocaine, marijuana and Ecstasy in their bloodstreams.

Those words are now the targets of defense attorneys.

“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,” defense attorney Laurence M. Moon wrote in a case involving a Milwaukee man being prosecuted under the law. “This discrepancy is irrational.”

I’m not sure what the grounds would be specifically at the state level, but I hope this law gets shot down. I’d be interested to watch the government try to defend their compelling interest in an “any detectable amount” provision.

“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.

“Whether it will rise to the level of making it unconstitutional remains to be seen.”

We’ll be watching.

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