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Lack of scienter requirement in statute prohibiting driving with a detectable amount of a controlled substance doesn’t violate due process

State v. Michael R. Luedtke, 2014 WI App 79, petition for review granted 10/15/14, affirmed, 2015 WI 42 (posts here and here); case activity

Section 346.63(1)(am), which prohibits operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood, does not violate due process by failing to require proof that the defendant knowingly ingested the controlled substance. In addition, Luedtke’s due process rights were not violated when the state crime lab destroyed his blood sample before he could have it independently tested.

The legislature intended § 346.63(1)(am) to be a strict liability statute, i.e., one that doesn’t require the state to prove that the person knowingly ingested the substance (¶¶8-15), and the lack of a scienter requirement doesn’t violate due process, given State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474:

17      … In Smet, we held that in enacting § 346.63(1)(am), the legislature determined that public safety is endangered when a person operates a motor vehicle with a detectable amount of a restricted controlled substance in his or her blood. Smet, 288 Wis. 2d 525, ¶13. … Ultimately, in Smet, this court was “satisfied that prohibiting operation of a motor vehicle while having a detectable amount of a restricted controlled substance in one’s blood bears a reasonable and rational relationship to the purpose or objective of the statute, and that the statute is not fundamentally unfair.” Id., ¶20. Section 346.63(1)(am) presents “no due process violation.” Smet, 288 Wis. 2d 525, ¶20. While Smet addressed the absence of an impairment requirement, the rationale is equally applicable to the lack of a scienter requirement. Section § 346.63(1)(am) is a reasonable and rational means for the legislature to address a serious societal harm. The legislature could rationally conclude that a strict liability, zero-tolerance approach is the best way to attack the problem of drugged driving.

The court’s conclusory analysis doesn’t at all engage with Luedtke’s basic argument which, as culled from his briefs (available here), runs as follows: Strict liability crimes are the exception, not the rule; they are appropriate when employed to perform a regulatory function to safeguard the public from conduct the actor can reasonably be expected to know—indeed has an affirmative responsibility or duty to know—is unlawful, State v. Collova, 79 Wis. 2d 473, 482-484, 255 N.W.2d 581 (1977). Obviously, someone who’s impaired can be expected to recognize his ability to drive is affected; but under § 346.63(1)(am) a person who is not impaired faces punishment even if he unwittingly ingested a controlled substance and a mere detectable amount is (unbeknownst to him) present in his blood. Smet‘s analysis of the rationality of the statute’s lack of an impairment requirement hinged on the fact we don’t have a reliable measure for illegal drug impairment, 288 Wis. 2d 525, ¶¶16-17. That analysis makes sense where the driver knowingly ingested the drug, but—contrary to the courts “equally applicable” ipse dixit—it doesn’t address the fundamental unfairness of punishing a driver for what he does not, and could not, know is in his blood.

Further, the destruction of Luedtke’s blood sample before he had a chance to get it tested did not violate his due process rights. (It was destroyed after he was charged but before he’d received notice of the results due to delays in testing the sample for drugs and then charging him and due to Luedtke’s incarceration on another case.) State v. Greenwold, 181 Wis. 2d 881, 885, 512 N.W.2d 237 (Ct. App. 1994) (Greenwold I), adopted the rule of Arizona v. Youngblood, 488 U.S. 51, 57 (1988), that due process requires that the prosecution turn over material exculpatory evidence. To prevail on a due process challenge regarding the destruction of potentially exculpatory evidence, the defendant must show that the evidence was apparently exculpatory at the time it was destroyed or that it was destroyed in bad faith. State v. Greenwold, 189 Wis. 2d 59, 67, 525 N.W.2d 294 (Ct. App. 1994) (Greenwold II). Luedtke has not shown a due process violation because he makes no showing that the evidence was apparently exculpatory at the time of its destruction, and he does not argue that the evidence was destroyed in bad faith. (¶24).

In a creative argument grounded on the broader state constitutional due process right recognized in State v. Dubose, 2005 WI 126, 285 Wis. 2d 143, 699 N.W.2d 582, Luedtke contends Wisconsin should recognize a broader protection for a defendant’s due process rights than that afforded by Youngblood and relax the Youngblood bad faith standard. The court of appeals doesn’t entertain the argument, however, saying it is bound by Greenwold I‘s adoption of Youngblood and Greenwold II‘s rejection (before Dubose) of a similar state constitutional argument. (¶¶22-23).

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