The Wisconsin Court of Appeals ruled Wednesday, in State v. Michael R. Luedtke, 2013AP1737-CR, District 2(recommended for publication), that it does not matter how that restricted controlled substance got there. Constitutional "Due Process" does not require prosecutors to prove that a detectable restricted controlled substance was voluntarily consumed. The statue, the court found, is a "strict liability" offense, and does not require a "scienter" element (willful use or even knowledge that the substance might be present ) to pass constitutional muster.
An earlier case, State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474, had already ruled that section 346.63(1)(am) was constitutional even though it does not require some showing of impairment from the substance. Therefore, Luedtke's evidence that cocaine has been found on 90% of US currency, and in fresh water lakes in MN, fell on deaf ears. And Smet's argument that you could have THC in your blood from mere contact with MJ smoke was equally ineffective.
You might be surprised to learn that Wisconsin's definition of "restricted controlled substances" includes Delta 9 THC, the active component of Marijuana. Wis. Stat. s. 340.01(50m)(e). Cocaine and cocaine metabolites are also included. While Delta 9 THC generally leaves the blood after several hours, it can be present much longer for "chronic" (frequent, as opposed to the variety) users. Therefore, a person with Delta 9 THC in their blood may or may not be high. Other states, including Minnesota, do not include Delta 9 THC among their restricted controlled substances. They require proof of actual impairment by THC.
In my opinion, this law can lead to abuse by law enforcement. I have seen cases where police stop drivers and then get to section 346.63(1)(am) through what I consider a fishing expedition. For example, a driver pulled over for a tail light is field tested for alcohol after he admits to having a drink. After going through the embarrassing road side tests and passing the PBT, the officer says, "I still think you are on something. Any drugs in the car?" Driver admits there is some MJ, but denies use that day. Now comes the witch-doctory of the so-called "Drug Recognition Expert", or "DRE". The findings, yellowish tongue, slight fever, red eyes, pupils, etc.
Now our driver, stopped for a tail light, investigated for alcohol impairment, is arrested for driving with THC. He is taken for a legal blood draw, which is sent out and gone for months for testing. The officer asks for drug screening if the test for alcohol results under .08 BAC. The blood results come back with with BAC at .03, NO detectable amount of Delta 9 THC, but detectable amounts of cocaine metabolites. So the driver, pulled over for a tail light, investigated for an OWI, and arrested for driving with THC is, months later, charged under section 346.63(1)(am) for driving with a detectable amount of a completely unrelated restricted controlled substance in his blood.
Remember, to pass the test for probable cause to arrest, police do not have to be right. They just have to articulate enough facts to lead a reasonable officer to believe an offense is PROBABLY committed. Even if they are later
proven wrong, that does not mean the arrest is unconstitutional. And probable cause gets them a blood draw, which might turn up anything.
Smoking MJ is still illegal in Wisconsin, and I am not condoning its use. However, in my opinion, non-high MJ users should not be put into the same category as drunk drivers. The law should change so that impairment by, and not just contact with, a restricted controlled substance is required. Write your legislator.