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Court of Appeals rejects constitutional challenges to detectable amount of controlled substances law

State v. Blake Lee Harrison, 2017AP1811, District 3, 2/26/19 (one-judge decision; ineligible for publication); case activity (including briefs)

Harrison’s due process and void-for-vagueness challenges to § 346.63(1)(am) (prohibiting driving with a detectable amount of restricted controlled substance) go up in smoke.

The circuit court agreed with Harrison that the statute violates due process because there’s no rational basis for the law due to the fact the state isn’t required to prove impairment. But wait! What about the binding case law rejecting that very argument, namely State v. Luedtke, 2015 WI 42, 362 Wis. 2d 1, 863 N.W.2d 592, and State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474? The circuit court concluded those cases were “incorrect.” Sorry, circuit court. Only the supreme court gets to make that call, so Luedtke and Smet control. (¶¶11-13).

Harrison has a back-up argument: the law is void for vagueness. He didn’t raise this claim in the circuit court, but it’s not forfeited, since Harrison is the respondent and can raise alternative grounds to affirm the lower court. (¶14). But that’s as far as this argument gets. First, there’s nothing obscure about the standard the statute creates—”any detectable amount”—so it gives clear warning to persons about how to conform their conduct to the law, even persons who go to, say, Colorado, where they can legally consume cannabis. (¶¶16-26). Second, this clear standard leave no room for cops, judges, or juries to create their own standards. (¶¶27-29). No void for vagueness here.

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