Pubdate: Tue, 26 Mar 2002
Source: Milwaukee Journal Sentinel (WI)
Copyright: 2002 Milwaukee Journal Sentinel
Contact:  http://www.jsonline.com/
Details: http://www.mapinc.org/media/265
Author: Lisa Sink

LACK OF LEGAL STANDARDS IMPEDES PROSECUTION OF DRUGGED DRIVERS

In Pewaukee, the driver of a fully loaded, 72,120-pound Mack truck 
drove through a yellow light and slammed into a car that was turning 
in front it.

The car split in two. Its passenger, Alejandro Vera, 18, was killed.

The truck driver hadn't had a drop of alcohol. But he did have 
marijuana in his system, police say.

Four weeks earlier in Milwaukee, a car filled with teens returning 
from an all-night rave in Kenosha suddenly veered off I-94 at about 
5:30 a.m., prosecutors say.

The 19-year-old driver never braked as the car traveled 385 feet 
through a grass ditch, went airborne, flipped and came to rest atop a 
guardrail.

Fifteen-year-old Mandy Rockett, asleep in the back seat, died. The 
driver and three other passengers were critically injured.

Again, the driver had no alcohol. But he had Ecstasy and marijuana in 
his system, according to a criminal complaint.

In Wisconsin, it's illegal to drive under the influence of alcohol or 
drugs. For alcohol, that means a maximum 0.10 blood-alcohol level.

But how much marijuana do you have to smoke to be "under the 
influence?" How much cocaine? How much Ecstasy?

For police, prosecutors and toxicologists, the quick answer is "we don't know."

No standards set

Because of the lack of a legal standard for quantitative impairment 
like the 0.10 for alcohol - and the fact that police officers often 
don't detect drugged drivers, few are being convicted of driving 
under the influence of drugs. That's true even when a fatality occurs.

The state tracks every operating-while-intoxicated conviction and 
every crash involving drunken drivers, but statistics on drugged 
drivers are almost non-existent.

"Any drug activity (by drivers) is definitely underreported," said 
Carol Karsten, alcohol program manager of the state Department of 
Transportation's Bureau of Transportation Safety.

"Part of the frustration in the whole area is not being able to have 
numbers to identify the problem."

Some national statistics have put the number of deaths in 
drugged-driving crashes at 8,000 to 22,000 a year, said Karen Tarney, 
a Bayside woman who created Citizens Against Drug Impaired Driving 
after she was injured in a crash involving a suspected 
cocaine-impaired driver.

"It's just beginning to be tracked nationally," Tarney said.

When Milwaukee County Assistant District Attorney Karen Loebel 
reviewed the Mandy Rockett fatality from last July, she had reports 
from a state toxicologist saying he "believed" the driver had enough 
Ecstasy in his system to be impaired.

But the toxicologist warned Loebel that he had no scientifically 
accepted proof to back up that belief.

The marijuana the driver also had in his system was "very low" and 
"not a factor in the accident," another toxicologist opined.

After studying the issue, Loebel wasn't confident she could prove a 
charge of homicide by intoxicated driving. Instead, she filed a 
charge of homicide by negligent driving.

The difference in the maximum penalty is huge: 40 years in prison vs. 
two years in prison.

Martin Kohler, the defense attorney representing that driver, Justin 
Oleszak, 19, of Shorewood, said Oleszak plans to plead guilty or no 
contest to the negligent homicide charge in court Wednesday.

Had Loebel filed the stiffer impairment charge, Kohler said, "we 
would have fought it."

"I don't think he was under the influence," Kohler said. "I think it 
was the hour of the night, and he fell asleep."

Taking the wheel

Loebel's criminal complaint says that Oleszak agreed to drive when 
the car's owner, a 17-year-old girl, said she was too tired. As 
Oleszak drove from Kenosha to Milwaukee, the other four in the car 
fell asleep, the complaint says.

"I think that everybody believed that he (Oleszak) was in the best 
shape," Kohler said. "He was feeling fine when he left."

That's the problem with taking rave drugs, said Bill Kraus, a retired 
Milwaukee police officer who trains officers in detecting drug 
impairment.

Initially, stimulants such as Ecstasy and cocaine can pep someone up, 
giving the kick to stay awake and dance for hours. But eventually, 
Kraus said: "They crash, and they fall asleep. They're so overly 
tired that they fall asleep behind the wheel."

Kraus - with the support of Tarney's group - is leading a statewide 
effort to crack down on drugged driving.

That means making sure officers take blood samples from those they 
believe are on drugs, just as they would with a suspected drunken 
driver, Kraus said.

And when the blood results confirm that drugs are present, he said, 
officers need to be able to give juries corroborating information to 
prove that the drugs caused impairment.

That is the goal of a new training program Kraus runs. After 
completing the program, officers become certified as "drug 
recognition experts," or DREs.

The DRE program started in Los Angeles in the 1970s but didn't make 
it to Wisconsin until 1995, when Kraus was one of the first 11 
certified here.

There are now 61 certified DREs in Wisconsin - a fraction of the 
14,500 sworn law enforcement officers in the state. And 16 more are 
in training now. Nationally, there are about 5,000 DREs in about 35 
states, Kraus said.

DREs use physical and quasi-medical exams to determine what category 
of drugs a person may have ingested before blood results return many 
weeks later. Those evaluations have not been tested for their 
admissibility in Wisconsin courts.

But Joe Keil, a DRE and Manitowoc County Sheriff's Department deputy, 
testified without problem three years ago in a trial that resulted in 
an operating while intoxicated conviction for a driver with marijuana 
in his system and a blood-alcohol level of 0.04, much less the 0.10 
limit for drunken drivers.

Keil told jurors how DREs conduct the typical field sobriety tests 
but also check the person's pulse, blood pressure, body temperature 
and pupil size and movement, he said. DREs inspect a person's mouth 
and nose for signs of drugs, such as heat bumps or a green tinge on 
the tongue or carbon deposits behind the teeth.

They all give telltale signs of various categories of drugs - central 
nervous system depressants; stimulants; hallucinogens; narcotics; 
inhalants; and marijuana, he said.

Showing jurors what drug symptoms and evidence officers found 
bolsters proof of impairment, Kraus said.

"What we're trying to do is change society's attitude regarding not 
only drinking and driving but drugs and driving," he said.

Heavy marijuana use can slow a driver's perception of time, space and 
distance, he said. Cocaine can cause someone to speed, change lanes 
without signaling or impede traffic.

"Would you want someone who's been smoking pot to be driving behind 
you?" Kraus asked.

Waukesha County District Attorney Paul Bucher is reviewing whether 
the truck driver in the fatal accident in Pewaukee can be charged 
because of the marijuana tests indicate were in his system. Bucher 
would like to see the medical and legal communities develop numeric 
standards for drugs like those for alcohol, he said.

Or, he said, the state should enact a law in which the presence of 
any illicit drugs in a driver's system is a crime.

"You shouldn't have them in your system at all," Bucher said.
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