of a restricted controlled substance" in their blood IS an OWI. Wis. Stat. s. 346.63(1)(am) (emphasis added). Delta 9 THC, the active component of marijuana, is a "restricted controlled substance." Wis. Stat. s. 340.01(50m). That means that a driver does not have to be impaired by marijuana--or anything else--to be arrested for OWI. The arresting officer only has to show "probable cause" that the driver's blood may have a "detectable amount of a restricted controlled substance" present. Once the blood is drawn--forcibly if necessary--whatever restricted controlled substance is found by the lab "screening" the blood can (and likely will) result in an OWI charge under s. 346.63(1)(am).
The point is being made again, this time in an unpublished Wisconsin Court of Appeals opinion released Wednesday,
STATE OF WISCONSIN V. KENT W. HUBBARD. Hubbard was stopped for a bad tail light at 2:45 a.m. (of course). He reportedly had bloodshot eyes and admitted drinking two shots. He also admitted that he smoked marijuana that day, nine hours before. His PBT (preliminary breath test) registered a BAC of only .02. He reportedly consented to a search of his vehicle, which produced "two glass pipes containing burnt residue as well as a pill bottle containing a green seed and a Ziploc bag containing a green leafy substance, both smelling like marijuana".
Hubbard was arrested for suspicion of driving with a detectable amount of a restricted controlled substance. He refused a blood draw. His blood was taken anyway. The decision does not state exactly what was disclosed by the screening tests, but the only thing referenced is methamphetamine. That's right--not THC, not ethanol (alcohol)--but meth.
Hubbard was charged with one count of operating a motor vehicle while under the influence of an intoxicant, controlled substance, or any other drug or combination of substances, contrary to Wis. Stat. s. 346.63(1)(a), and one count of operating a motor vehicle with a detectable amount of a restricted controlled substance in his blood, contrary to s. 346.63(1)(am). The "detectable amount of a restricted controlled substance", here meth, had nothing to do with the facts giving rise to his investigation or arrest. However, the test result, showing meth present, was presumably the reason Hubbard ended up pleading to OWI under s. 346.63(1)(a).
Hubbard challenged his arrest. At the hearing, the arresting officer testified that "he had received drug training related to impaired driving, where he had learned that marijuana could remain in the bloodstream for '24 hours or longer.'” (emphasis added.)
The courts ruled that the officer had probable cause to arrest for suspicion of driving with a restricted controlled substance under s. 346.63(1)(am). In finding probable cause, the Court of Appeals stated, "The most persuasive evidence known to the officer was Hubbard’s own admission that he smoked marijuana (“weed”) within nine hours of driving. The officer’s training instructed that this would be recent enough for marijuana to be detected in his blood."
Many believe that s. 346.63(1)(am) promotes a "witch hunt" because it does not even require evidence of impairment, only evidence to believe the person may have some restricted controlled substance in his/her blood. This decision suggests that an admission of recent marijuana use (if you call 9, let alone 24, hours "recent") could be grounds to arrest, draw blood, and then have the Wisconsin State Lab of Hygiene or Wisconsin Crime Lab go on a fishing expedition for any "restricted controlled substances" by the process of Mass Spectrometry Gas Chromatography. If any such substances are found--even if they have nothing to do with the reason for the stop or arrest--the driver can be guilty under s. 346.63(1)(am).
What's further troubling is that the Wisconsin State Lab of Hygiene, the lab largely responsible for testing for ethanol and restricted controlled substance testing, has clearly been strained by the volume of cases coming to its lab. So much that in 2011-12 it was forced to contract out 600 cases for mass spectrometry testing to a 'for profit' lab in PA. How do I know? I am still fighting one of the cases sent to PA for testing. There does not have to be cause to believe the blood contains any other substance, but the testing can find and identify most any drug.
OWI convictions are big-ticket cases for patrol officers. In La Crosse, WI, a patrol officer might even find themselves highlighted in the La Crosse Tribune for having the most OWI arrests. Why is that a bad thing, you might ask? In most cases it isn't. Nobody wants an impaired driver on the road. However, I have had cases that start with a stop for something like a tail light, then moved to an investigation for drunk driving because the driver admitted some amount of drinking. After humiliating field tests, the PBT shows under .08 BAC. Then the question follows: "Have you had anything else?" If the person admits to smoking pot any time recently, then we're off to the land of bloodshot eyes, yellow tongues, fevers and pupil size to justify the arrest.
Like Hubbard, arrest for THC can end up with charges for some other substance, whether it be meth, metabolites of cocaine, or whatever. This can happen even though the "symptoms" between using pot or some other substance may be completely different. It doesn't take a hippy to think this does resemble a bit of a 'witch hunt'.