The Supreme Court for the State of Wisconsin has granted a Petition for Review of State v. Michael R. Luedtke, 2013AP1737-CR.  Luedtke failed to persuade  the Court of Appeals that punishing a person simply for having any amount of a restricted controlled substance in their blood while driving violates the driver's right to due process of the law.  


The statue at issues is Wis. Stat.  s. 346.63(1)(am).  The substance most often detected is Delta 9 THC, the active component of THC.  Other states, including Minnesota, exclude THC from the list of restricted substances.


According to the Court of Appeals, the statute does not violate due process even though it does not require the driver to (1) actually be impaired; or (2) knowingly or intentionally ingest THC/restricted substances.  Statutes that require "knowledge" or "intent" are said to have a "scienter" element.  Those that do not, like section 346.63(1)(am) are called "strict liability" offenses.   The Court of Appeals decision can be summarized as follows, "[B]ecause no reliable measure of impairment exists for many illicit drugs, the legislature reasonably could conclude that the more prudent course was to ban any amount in the driver’s system." 


In a previous blog, I gave my reasons why section 346.63(1)(am) leads to police abuse.  It is my sincere hope that the Supreme Court will see things differently than the Court of Appeals.  However, I am not holding my breath.

Thal and Julian Wendrow sued Michigan Prosecutor David Gorcyca, his former chief assistant, Deborah Carley,  and Andrea Dean, a former judicial candidate now in private practice.   The Wendrows are the parents of a severely-autistic 14 year-old mute child.  In 2007, the child reportedly typed a note to a teacher's assistant stating she had been raped by her father since early childhood.  However, the  teacher's guide "aided" the child's, using a method of typing called facilitated communication, which is widely debunked.  The police even interrogated the child's younger brother, lying to him, saying they had a video of the father raping the child.  On the basis of this unbelievably unreliable information, the police and prosecutors ran with it, arrested and jailed the Wendrows (Mr. Wendrow for 80 days), putting their children into protective custody. 

According to the USA Today, the suit was filed in 2008.  Since then, the West Bloomfield Police Department settled for  $1.8 million, the state settled at $850,000 and Walled Lake Schools will pay the family $1.1 million.  I guess that fills the war chest in terms of pursuing these prosecutors.

I have represented a number of people charged with sexual assault of a child in La Crosse County.  These are difficult and complicated cases.  None of those cases resulted a trial, let alone a conviction.  I am also a parent of young children.  As such, I appreciate the most zealous of advocacy when upholding the rights of child victims.  However, charges of this nature are extremely destructive.  Cases are far too often brought with evidence, and under circumstances, which  are very untrustworthy.  Even the best of intentions--when not guided by common sense--will leave ruined lives in the wake.  This witch hunt is obviously one such case.