LAWYERS CHALLENGE LAW AGAINST DRUGGED DRIVERS

They Say The State Law Is Unconstitutional In Not Setting Standard For Illegal Driving.

Some defense attorneys are questioning whether a law aimed at so-called drugged drivers is constitutional.  Some of the first prosecutions under the measure are now going to court.

The law, which took effect Dec.  19, makes it illegal for drivers to have "any detectable amount" of drugs such as cocaine and marijuana in their bloodstreams.

Defense attorneys are targeting the words "any detectable amount."

"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."

Attorney Bruce Jacobson, who is representing a man being prosecuted under the law in Waukesha County, said he is considering filing the same motion.

Janine Geske, a distinguished professor at Marquette University Law School and former state Supreme Court justice, said it's typical to raise the constitutionality issue with the new law.

"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," she said.

The so-called Baby Luke law was named after an infant who died from a car crash caused by a cocaine-using motorist.  The law penalizes drugged drivers the same as drunken drivers.

Walworth County prosecutors have decided they should treat drivers sentenced for having illegal drugs in their system like drunken drivers with high blood-alcohol concentrations.

"We're taking the approach that these drivers should be placed at the high end of the sentencing range because we have no way of measuring impairment, and because these drugs are illegal to begin with," said Walworth County District Attorney Phillip Koss.

In his county, a motorist already has been convicted under the law.

Last month, Russell J.  Tvrdik, 56, of Genoa City, was sentenced in Walworth County Circuit Court to 50 days in jail and fined $1,062 stemming from his arrest on the day the law took effect.

Tests had showed he had drugs including codeine and methadone in his system.  Koss said the drugs were prescribed.

"However, in combination with one another, they were over the therapeutic level and he was really impaired," Koss said.