Pubdate: Tue, 26 Dec 2000 Source: San Jose Mercury News (CA) Copyright: 2000 San Jose Mercury News Contact: 750 Ridder Park Drive, San Jose, CA 95190 Fax: (408) 271-3792 Website: http://www.sjmercury.com/ Forum: http://forums.bayarea.com/webx/cgi-bin/WebX Author: Ann E. Marimow, Mercury News DA CONSIDERS OPTIONS AFTER LOSING KAVA CASE The San Mateo County District Attorney's office is weighing its options after suffering the second setback in two months in its efforts to prosecute drivers they believe are impaired after drinking kava tea. But defense attorneys promise to fight back with their contention that prosecution is pointless because kava isn't a drug. District Attorney Jim Fox said he was baffled by a ruling Thursday that dropped charges against a man who was pulled over for driving erratically after drinking 23 cups of the relaxing tea. San Mateo County Judge Marta Diaz didn't fault police officers for stopping 26-year-old Sione Olive in June as he was swerving on Highway 101. But Diaz said there wasn't enough evidence to show that state law applies to the tea, brewed from the powdered root of a pepper plant native to the South Pacific. Still, Fox is certain that kava's potential to impair a person's ability to drive means state law does apply. He has requested a transcript of the hearing to determine whether an appeal is appropriate. "If it applies to cold medicine, this one fits within the statute," said Chief Deputy District Attorney Steve Wagstaffe. "The only thing that's different here is that kava is new. It's one we haven't had a lot of experience with." The judge's decision this week follows the district attorney's decision in November to drop a similar case in which a deadlocked jury voted 10 to 2 in favor of acquitting the defendant. Lawyers believe the two cases are the first of their kind in California and among only a few to be heard nationwide. Scott Ennis, who represented the defendant in the first San Mateo County case, contends an appeal by the district attorney would be a waste of time because there's no proof that kava impairs. "Any effect would be shortlived," said Ennis, who once drank 12 cups of kava tea in five minutes to prove his point. "It leaves the system so fast that it doesn't have a toxic effect." Kava has been used by South Pacific islanders for thousands of years. In the Bay Area, immigrants from Fiji, Samoa and Tonga often gather for hours around vats of the bitter liquid to relax and socialize. Olive, a resident of Mesa, Ariz., was driving back to his aunt's house in East Palo Alto after drinking kava at a San Mateo church. In the last decade, kava in capsules and tablets also has become popular as an alternative to muscle relaxers and anti-anxiety medicine. California law makes it illegal to drive while impaired by any substance that affects the "central nervous system, brain, or muscles of a person as to impair . . . his ability to drive a vehicle." Defense attorneys for the two men charged with driving after drinking kava say the law doesn't specifically apply to kava. They have accused the district attorney's office of trying to write new laws. But Wagstaffe said his office has successfully prosecuted people for driving under the influence of legally prescribed drugs such as anti-depressants and illegal drugs such as cocaine. And he says kava is no different. - --- MAP posted-by: Richard Lake