Motor Vehicles — controlled substances

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Wisconsin Court of Appeals

Criminal

Motor Vehicles — controlled substances

Section 346.63(1)(am), prohibiting operating a motor vehicle with a detectable amount of a controlled substance in the blood, does not unconstitutionally create a strict liability offense.

“This court already concluded that WIS. STAT. § 346.63(1)(am) does not violate substantive due process. Smet, 288 Wis. 2d 525, ¶1. 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. The court found it reasonable to punish every person who drove with a detectable amount of a restricted controlled substance in the blood, regardless of impairment. Id., ¶16. In 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.’ Id., ¶17. Furthermore, because no reliable measure of impairment exists for many illicit drugs, the legislature reasonably could conclude that the more prudent course was to ban any amount in the driver’s system. Id. 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.”

Affirmed.

Recommended for publication in the official reports.

2013AP1737-CR State v. Luedtke

Dist. II, Winnebago County, Seifert, J., Neubauer, J.

Attorneys: For Appellant: Lang, Donald T., Madison; For Respondent: Gossett, Christian A., Oshkosh; Remington, Christine A., Madison