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SCOW: 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/State v. Jessica Weissinger, 2015 WI 42, 4/24/15, affirming a published court of appeals decision; opinion by Justice Gableman; case activity (including briefs)

The supreme court unanimously holds that § 346.63(1)(am), which prohibits operating a motor vehicle with a detectable amount of a restricted controlled substance in the blood, is a strict liability crime and does not violate due process by failing to require proof that the defendant knowingly ingested the controlled substance.

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, based on: the language of the statute itself and related statutes; its history; “law enforcement practicality” (i.e., making it easier to prosecute); protection of the public; and the potential penalties.  (¶¶65-72). Further, the lack of a scienter requirement doesn’t violate due process, as there is a rational basis for punishing even drivers who don’t know they have ingested a controlled substance in light of State v. Smet, 2005 WI App 263, 288 Wis. 2d 525, 709 N.W.2d 474:

¶77      In the present case, rational basis scrutiny is satisfied because the statute is rationally related to achieving public safety. Id., ¶17. We agree with the court of appeals that “[i]n addressing the problem of drugged driving, the legislature could have reasonably and rationally concluded that ‘proscribed substances range widely in purity and potency and thus may be unpredictable in their duration and effect.'” Luedtke, 355 Wis. 2d 436, ¶17 (citation omitted). Though it may be more difficult to deter people from driving after unknowingly ingesting a restricted controlled substance, such drivers are at least as dangerous as those who knowingly ingest a restricted controlled substance. Further, because no “reliable measure” of impairment exists for many illicit drugs, the legislature could have reasonably concluded that the more sensible approach was to ban drivers from having any amount in their systems. Smet, 288 Wis. 2d 525, ¶17. The legislature could rationally conclude that a strict liability, zero-tolerance approach is the best way to combat drugged driving. Ultimately, we are “satisfied that prohibiting operation of a motor vehicle while having a detectable amount of a restricted controlled substance in one’s blood [without proof of scienter] bears a reasonable and rational relationship to the purpose or objective of the statute, and that the statute is not fundamentally unfair.” Id., ¶20. Wisconsin Stat. § 346.63(1)(am) presents no due process violation and is constitutional.

The court’s conclusory analysis of the due process issue and its reliance on Smet fail to acknowledge the core of Luedtke’s argument, much less engage with it. 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). Someone who is impaired can be expected to recognize his ability to drive is affected; likewise, someone who is impaired can be expected to know he’s ingested something. But under the court’s reading of § 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 that, unlike with alcohol, we don’t have a reliable measure for when a person becomes impaired by various illegal drugs, 288 Wis. 2d 525, ¶¶16-17. While that fact means it is reasonable for the statute to cover any driver who knowingly ingested the drug, the lack of an impairment standard has nothing to do with, and so doesn’t provide any rationale for, punishing a driver for what he does not, and could not, know is in his or her blood. It is not just “more difficult to deter” people from driving if they don’t know they’ve ingested a drug; it is impossible, so extending the statute to cover them is arbitrary and unfair. This problem does not appear to concern the court at all.

Note: Luedtke also raised a due process claim regarding the destruction of his blood sample; our post on the court’s opinion dealing with that issue is here.

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