Law on Solid Ground, Court Rulings Suggest

  Law on Solid Ground, Court Rulings Suggest

Posted by FoM on February 25, 2001 at 07:42:19 PT
By Peter O' Connell, Review-Journal 
Source: Las Vegas Review-Journal  

Defense attorney John Watkins did not miss a beat when jurors found Jessica Williams guilty of charges that carry the prospect of decades behind bars. He immediately noted that the jury concluded his client was not under the influence of drugs when her minivan struck and killed six teen-agers in the median of Interstate 15. Then he vowed to overturn the state law that makes it a crime for even an unimpaired driver to have certain drugs in his or her system. 
So confident was he of success that he vowed to surrender his law license if the appeal failed. "It's not going to fail, because we know that law was a bad law," he said on Feb. 16. Given the results of similar appeals in other states, the attorney may want to consider updating his resume. "I believe we are on very strong ground legally," Deputy District Attorney Bruce Nelson said this week. Regardless of his prospects for victory, some defense attorneys say Watkins has the advantage of being right. "That law is unconstitutional, and the reason it is unconstitutional is there is no relationship between what she had in her system and her ability to drive," said Seattle attorney Fred Leatherman, chairman of the drug policy reform committee of the National Association of Criminal Defense Lawyers. According to the National Traffic Law Center, all 50 states have laws that prohibit a person from driving while under the influence of drugs. In 1999, Nevada went one step further and prohibited drivers from having certain levels of specific controlled substances in their blood or urine. The Nevada Supreme Court has yet to consider this law. Even stricter laws exist in seven states: Arizona, Georgia, Illinois, Indiana, Iowa, Minnesota and Utah. Nevada legislators set low threshold levels to account for passive ingestion, such as second-hand smoke. But these states made it illegal for a driver to have in his or her system any detectable amount of the various drugs. Appellate courts in Arizona, Illinois and Iowa have ruled that the laws enacted in those states are constitutional. "We believe that the legislature was reasonable in determining that there is no level of illicit drug use which can be acceptably combined with driving a vehicle; the established potential for lethal consequences is too great," the Arizona Court of Appeals ruled in April 1994. The Georgia Supreme Court found legislators could have enacted a blanket prohibition governing all drivers. However, the court struck down that state's law because it found no rational reason to exempt those with a medical prescription for marijuana. Appellate courts in Indiana, Minnesota and Utah have not considered the laws enacted in those states. Prior to the Williams trial, District Judge Mark Gibbons found that legislators enacted the legislation for the legitimate purpose of improving traffic safety. The judge also found legislators were within their authority to adopt the low drug thresholds after they concluded it was not possible to set numerical levels at which a person was presumed to be under the influence of a controlled substance. The evidence and arguments presented to Gibbons closely mirrored those offered in other states. Defense attorneys have consistently objected that lawmakers must link the prohibited drug levels to driving impairment. Just as consistently, appellate courts have disagreed. In 1994, the Illinois Supreme Court upheld a law that was shaped by the same scientific quandary that confronted Nevada legislators. "At the lowest levels of drug ingestion, no one is impaired. At the highest levels, all are impaired. In the vast middle range, however, the tolerance for drugs varies from person to person and from drug to drug," the Illinois court wrote. Keith Stroup, executive director of the National Organization for the Reform of Marijuana Laws, said the obvious remedy to the problem of drugged driving is to forge scientifically reliable methods for identifying drivers whose drug usage renders them unfit to drive. The solution is not to enact blanket bans that make felons of the millions of Americans who drive with latent amounts of marijuana in their system, he said. Las Vegas attorney Tom Pitaro also objects that these laws have no scientific underpinning. Pitaro said he represents a Nye County man who was charged following a fatal accident. A blood test found no trace of marijuana's active component, but did detect another marijuana component that does not cause intoxication, the attorney said. Banning people from driving with this nonactive component in their blood makes as much sense as banning people from driving while wearing a red shirt, Pitaro said. "It is exactly the same thing. The red shirt has nothing to do with the accident," Pitaro said. Yet defense attorneys in other states have argued on appeal that there is no scientific rationale for these laws. In each of the four states in which appellate courts have ruled, this argument has failed to carry the day. Typically, the courts have reviewed the scientific evidence and concluded that, unlike with alcohol, there is no way to set numerical drug levels at which a person is presumed to be impaired. In this scientific vacuum, legislators are free to set low thresholds for drugs that are illegal to begin with, the courts have found.Note: Attorney hopes law prohibiting driving with controlled substances in system will be tossed.Source: Las Vegas Review-Journal (NV)Author: Peter O' Connell, Review-Journal Published: Sunday, February 25, 2001Copyright: Las Vegas Review-Journal, 2001Address: P.O. Box 70, Las Vegas, NV 89125Fax: (702) 383-4676Contact: letters lvrj.comWebsite: Articles - Jessica Williams

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