Broadening the definition of DUI

B Y   K A T H L E E N    H U G H E S

In a legislative session that has already birthed several noteworthy bills, the "drugged-driving" bill won overwhelming support in both the Senate (44-2) and the House (96-3) and from the governor, who will most likely sign it into law, because it promises safer roads.  The bill also doubles penalties for possession of marijuana and other controlled substances.

As these tighter sentences promise prison overcrowding with some non-violent criminals, some are questioning what the Legislature and Governor Branstad have decided -- and whether this bill truly makes the roads safer and at what cost.

The bill is largely focused on providing laws that enable law enforcement officers to pull over drivers believed to be impaired, to require a blood or urine test of those drivers and to acquire blood and urine in as safe, professional and private a manner as possible.

The bill also includes some legislation related to drugs but not to driving.  SF 2391 cancels federal and state benefits, such as food stamps, veterans benefits and assisted housing, to convicted drug offenders and also singles out methamphetamine in stricter and mandatory sentencing.  Finally, and perhaps most controversially, SF 2391 stiffens penalties for possession of all other controlled substances, including marijuana.

Iowa City Police Chief R. J. Winkelhake said he had not seen the specific wording of the bill.  "We know there are people driving under the influence of something other than alcohol," he said.  "If this [law] helps to detour those drivers and get them off the street and even arrest some of them, that's good."

State Representative Mary Mascher explained that there was such overwhelming support for the bill "because law enforcement was coming to us and saying, 'we don't have a leg to stand on.' "  The issue, Mascher said, "is the fact that when a police officer pulls someone over, there's no real test ... for [controlled substances].  You can still be under the influence and not have a blood-alcohol content."

Indeed a fair portion of SF 2391 is focused on enabling law enforcement officers with reasonable grounds of suspicion that a citizen is driving while drugged to demand blood or urine tests.  The bill states: "If the peace officer has reasonable grounds to believe that the person was under the influence of a controlled substance, a drug other than alcohol or a combination of alcohol and another drug, a blood or urine test shall be required even after another type of test has been administered."

SF 2391 also specifies that only medical personnel will execute the withdrawal of blood, but a peace officer "may take a specimen of the person's urine."

The bill states that collection of blood and urine will be sanitary and as private as possible.  In the case of urine, supervision will only take place if a person has a history of tampering with his or her sample.  If supervision is necessary, the supervisor will be the same gender as the person giving the sample.

According to the bill, persons under the influence of properly used prescription drugs will not be arrested.

The bill does not stipulate what is considered "reasonable grounds" for believing that a person is operating under the influence nor what amount of drug presence in blood or urine will be deemed criminal.  "The department of health shall adopt nationally accepted standards for determining detectable levels of controlled substances," the bill states.

Mascher explained that this provision exists because "We're not experts in the field....  We didn't want to get into legislating that -- we don't have the expertise."

Does this mean there could be "legal" amounts of marijuana or other substances detected in blood or urine?  Mascher said it would be unlikely because a trace amount -- or the amount that would not impair one's driving and thus might be considered legal -- shouldn't prompt one to be pulled over.

"I don't think someone with trace amounts of marijuana would be pulled over for driving erratically.  If you have a joint the day before and you go out driving, it's not going to cause impairment in driving," Mascher said.

As for the stiffer possession penalties, SF 2391 distinguishes marijuana from other controlled substances.  Carl Olsen of the Iowa chapter for National Organization for the Reform of Marijuana Laws (NORML) explained that for non-marijuana controlled substances, SF 2391 doubles the penalties for second-time offenders, and increases by five-fold the penalties for third-time and subsequent offenders -- whose repeat crimes will be considered class "d" felonies.

In regard to marijuana, the penalty for the first offense remains the same under SF 2391.  However, the second-offense penalty is doubled, and third and subsequent offenses are quadrupled.  Prior to SF 2391, each marijuana possession offense was subject to a fine and six months of jail time.  Under SF 2391, second-time offenders could spend one year in jail, and third-time-plus offenders could spend two years in jail.

None of these sentences are mandatory, however, as the bill later allows a controlled-substance possession sentence to be suspended (except for methamphetamine, which does carry mandatory sentencing) and the offender placed under probation.

Olsen emphasized how quickly and stealthily this bill was passed.   "They should have made this several different bills that were debated separately and voted on separately," he said.  "It's really lousy legislation."

Mascher said SF 2391 was an "all or nothing" situation.   "There are many, many cases every year where people aren't drinking but they're still killing people on the roads.  People on meth, heroin, crack, marijuana cause just as big a threat as alcohol.  But they're not easy to measure....  You can't do a breathalyzer," Mascher said.  "The Democrats want to get people off the roads.  We couldn't just support that part -- we had to support the law dealing with everything."

The bottom line seems to be partisan politics.  "Democrats try to do more with educational programs," Mascher said.  "We see drug use as a social problem, and one that needs to be addressed by education.  The Republican attitude is to punish....  This legislation will create more of a problem with overcrowding."

House and Senate Democrats did try to attach educational measures in place of punitive drug measures but the amendments failed, Mascher added.

Although Governor Branstad had not signed SF 2391 into law as of Friday, April 17, he is expected to do so.*

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April 23, 1998