Pubdate: Sat, 23 Dec 2000 Source: San Francisco Chronicle (CA) Copyright: 2000 San Francisco Chronicle Contact: 901 Mission St., San Francisco CA 94103 Feedback: http://www.sfgate.com/select.feedback.html Website: http://www.sfgate.com/chronicle/ Forum: http://www.sfgate.com/conferences/ Author: Matthew B. Stannard JUDGE TOSSES CASE AGAINST DRIVER ON KAVA Pacific Island Tea Not Proved To Be Drug A judge in San Mateo County has dismissed charges against a man accused of driving under the influence of kava tea, saying prosecutors failed to show that the beverage impairs a person's ability to drive. It is the second time San Mateo County prosecutors have had a driving case involving kava tea fall through. The first ended in a mistrial in October. In the latest case, prosecutors had charged Sione Olive, 27, in June with driving under the influence of 23 cups of the relaxing herbal beverage, popular in some Pacific Island cultures and available in many American health food stores. Olive allegedly was spotted weaving onto the shoulder of Highway 101. Olive, 26, was charged with a misdemeanor under a state law that prohibits driving under the influence of any alcoholic beverage or drug, with "drug" defined in the vehicle code as "any substance or combination of substances" that impairs driving. Olive's Redwood City attorney, Hugo Borja, had argued that the prosecution's case was "unconstitutionally vague," because California law does not specifically state whether kava is a drug and that Olive was therefore not "on notice" that using it could subject him to criminal prosecution. Superior Court Judge Marta Diaz dismissed the case Wednesday, citing a "lack of evidence as to this substance, what it is, how it affects anyone." District Attorney Jim Fox said that he does not agree with Diaz's decision and that he will review the court transcript and consider filing an appeal. Earlier this year, Fox's prosecutors filed a similar misdemeanor charge against Taufui Piutau of San Bruno. The case ended in a mistrial Oct. 27. Some of the 10 jurors voting for acquittal said at the time that they did not feel enough was known about the effects of kava to convict Piutau. Prosecutors did not refile charges, according to Piutau's attorney. Kava, a beverage made from a root, is popular in the South Pacific and is traditionally used in religious and royal ceremonies there. It is often sold in the United States as a natural herbal tea to combat anxiety and insomnia. Its adherents say that kava tea is at most a mild relaxant. Fox's office found no previous prosecutions in California for driving under the influence of kava. In 1996, a court in Utah convicted a man after he told authorities he had drunk more than a dozen cups of kava tea before getting behind the wheel. - --- MAP posted-by: Richard Lake