Scientific research, legislative enactments and recent court decisions have put the constitutionality of the classification of marijuana as a Schedule I drug in a precarious position. This was demonstrated recently when what started out as the largest drug case in Wisconsin history ended with the prosecution asking the court to dismiss all charges against both defendants. The defendants, Charged with possession of 3,300 pounds of marijuana with an estimated street value of $1.3 million, had the burden of proving, beyond a reasonable doubt, that Wisconsin's drug classification scheme was not constitutionally valid.
The Act the defendants were challenging has kept marijuana in Schedule I since its passage in 1971, along with such opiate derivatives as heroin and morphine and LSD, a hallucinogen. This parallels placement of marijuana in the highest schedule of the Federal Uniform Controlled substances Act of 1970. Both acts intended that marijuana's scheduling position be a temporary one, pending further research then underway on its physical and psychological effects. Those comprehensive studies have been completed, and a number of major studies have been conducted since in the United States and several foreign countries, leading marijuana researcher Dr. Norman Zinberg of Harvard Medical School to state, "We know as much about marijuana (today) as about any other drug." 1
While neither the federal government nor Wisconsin's legislature has acted to reclassify marijuana in the last twelve years, three days of scientific testimony in the case of State v. Whitehall and Hadden, together with over 100 documents and other exhibits and a lengthy defense brief, apparently convinced the prosecution of the precarious position of the classification of marijuana and the dangers of a decision on the constitutionality of the Wisconsin Statute that might have statewide application.
In support of its theory that the classification of marijuana is irrational and arbitrary, the defense called three expert witnesses: Dr. Lester Grinspoon of Harvard Medical School, Robert Randall, president of the Alliance For Cancer Therapeutic (ACT), and Dr. Andrew Kane, a Milwaukee, WI, Psychologist.
Resistance on both the federal and state levels to reclassification of marijuana, despite recent scientific studies, gave the defense ample room to maneuver on a constitutional level in its attack on the Wisconsin marijuana statute. The challenge focused on the tests of Schedule I substance- "a high potential for abuse, no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision."
The testimony and scientific evidence presented established that marijuana has a relatively low potential for abuse, has widely accepted medical use in treatment in the United States and does not lack accepted safety for use in treatment under medical supervision. With this factual setting, the defense argued that the statutory scheme under which marijuana is classified as a Schedule I substance in Wisconsin has no rational basis, and such classification violates principles of the United States and Wisconsin Constitutions, guaranteeing due process and equal protection and prohibiting cruel and unusual punishment.
The defense did not advocate "decriminalization" or "legalization" of the drug. Instead, we chose to attack the placement of marijuana in Schedule I as irrational and arbitrary.
Grinspoon was called upon to draw conclusions about marijuana's relative potential for abuse compared to other drugs in Schedules I-V, based upon hundreds of studies and research of his own. He concluded that marijuana should not be scheduled as long as alcohol and tobacco are not since it has less potential for abuse. As a medicine, according to Grinspoon, it should be in Schedule V, which includes cough medicines containing codeine. The tests for a Schedule V drug in Wisconsin are "low potential for abuse, currently accepted medical use in treatment in the United States and limited physical or psychological dependency liability relative to the controlled substances listed in Schedule IV."
For Grinspoon, an associate professor of psychiatry at Harvard Medical School and one of the country's leading experts on drug usage and its effects on humans, dispelling misconceptions about marijuana's dangers and benefits is not new. His encyclopedic work, Marijuana Reconsidered, 2 which describes marijuana as possessing the least dangerous effects of all mind-altering drugs, was cited in People v. Sinclair, 387 Mich. 91, 194 N.W.2d 878 (1972), wherein the court found Michigan's classification of marijuana unconstitutional. The dissent in State v. Kantner, 53 Haw, 327, 493 P.2d 306 (1972), cited Grinspoon's research as evidence that the social harm connected to marijuana is insufficient to justify making mere possession a crime.
Some of the points made by Grinspoon during his testimony on the subject of marijuana's potential for abuse include:
1. Its undeserved reputation for abuse potential was given birth in the United States with the Marijuana Tax Act of 1937, passed amidst a wave of racism and fear over its criminogenic tendencies, particularly as a creator of sexual violence.
2. Marijuana does not cause criminal or violent behavior, In fact, it has a tendency to quiet a user.
3. No one has ever died from the use of marijuana. It is "remarkably unlethal."
4. No one has ever become addicted to marijuana, nor can anyone, in contrast to nicotine addiction and alcoholism.
5. A scientific search for physical damage to the body through marijuana use has "so far turned up very little."
6. The theory of a "cannabis psychosis" from its use is no longer accepted in any scientific literature.
7. There is "absolutely no scientific basis" for the "stepping stone hypothesis"-that marijuana, by properties, leads users on to harder drugs.
8. There is no evidence that chronic marijuana smoking is more harmful to the respiratory system than tobacco.
9. There is no convincing evidence that its use results in an a motivational syndrome.
Grinspoon concluded that is was "neither reasonable nor rational" to classify marijuana in Schedule. It was his opinion that it is not as potentially harmful as alcohol or tobacco and as for its potential abuse, it "clearly isn't in the same ball park" with Schedule I substances, has less than almost every substance in Schedule II and less than many in Schedules III through V.
Grinspoon testified that marijuana had wide acceptance in medicine up to 1937, including the status of "pain-killing substance of choice" on Civil War battlefields. It was also a widely-used sleeping medicine, migraine headache remedy and an aid in child birthing.
His testimony also established marijuana's accepted medical uses in the United States today, particularly for cancer patients suffering the side effects of chemotherapy and victims of glaucoma. For treating chemotherapy side effects, "there is nothing as effective as cannabis is...," and for many glaucoma patients, traditional approaches do not match the effectiveness of marijuana
It is possible to use marijuana "quite safely," Grinspoon testified. "What is strange about marijuana is that ...of the drugs that we deal with, it is remarkably safe." He stated that it is safer to use than many substances in lower schedules, including codeine cough syrup in Schedule V
Randall, president and lobbyist for ACT, an organization helping patients who require access to marijuana to obtain it legally, agreed with Grinspoon that marijuana does not have a high potential for abuse. Randall has had open angle-wide angle glaucoma since 1968, was first diagnosed as having it in 1972 and has used marijuana on a consistent basis to treat it since 1974. His condition since that time has remained stable. Controlled medical studies at Johns Hopkins University concluded that left on conventional glaucoma medications, "my disease would progress, and the consequences of that progression would be blindness," Randall testified. He has received marijuana through a Washington D.C. pharmacy since 1978, the first person granted legal use of marijuana on the grounds of medical necessity, U.S. v. Randall, 20 Crim. L. Rep. 2299, 104 Daily Wash. L. Rep. 2249 (D.C.Super. Ct. 1976). According to Randall, "It is not physiologically addicting in any way, and abuse doesn't cause serious harm to the individual who is using it, and I have personally experienced no such harm which is clinically verifiable."
The testimony of Dr. Andrew W. Kane, clinical associate professor of psychology at the University of Wisconsin-Milwaukee and associate clinical professor in the Department of Psychiatry at the Medical College of Wisconsin, indicated that all substances in Schedules I and II have a higher potential for abuse than marijuana. As for safe medical use, the only drugs in Schedule III with as much potential medical use, according to Kane, are codeine and morphine.
Kane, president of the Wisconsin Psychological Association, testified that forty-two Wisconsin physicians are currently using marijuana in the treatment of 400 cancer patients undergoing chemotherapy, describing the drug as "very useful." There is also "strong evidence" that it is useful to treat glaucoma, Kane stated.
There is "little or no danger to any individual who used marijuana in a medically-supervised setting," according to Kane, and there is a "very low potential for abuse, particularly when compared with the wide variety of legal drugs with or without prescription that are available."
He said dependence on tobacco was more likely and that alcohol has a greater potential for abuse, "almost infinitely greater due to psychological and physical dependence, plus physical deterioration."
During the pendency of our motion in the Whitehall and Hadden case, Wis. Stat. Sec. 46.60 (1982) was enacted. The defense then amended its motion to challenge the Wisconsin classification scheme on the additional ground that it conflicted with Sec. 46.60, which not only authorizes the medical use of marijuana but requires the state Controlled Substances Board to aid physicians in obtaining marijuana for their patients. The defense asserted that passage of Sec. 46.60 estopped the state from maintaining that marijuana meets the "no currently accepted medical use" definition of a Schedule I substance.
Thirty-four states, the latest being Massachusetts in mid-April, have passed legislation permitting the use of marijuana and/or THC for medical purposes, particularly in treatment of glaucoma and to relieve nausea connected with chemotherapy. Measures are pending in Hawaii and Missouri, but they are given little chance of passage. In addition, Michigan and New Mexico have passed resolutions calling on Congress to remedy federal prohibitions against the use of marijuana in medical treatments. A resolution in Hew Hampshire is pending.
The use of marijuana for cancer chemotherapy patients has been given high marks by three states- New Mexico reporting a 90 percent success rate. New York 80 percent and Georgia 73 percent.
On the federal level, a bill, H.R. 2282, which would provide for the therapeutic use of marijuana in situations involving life- threatening or sense-threatening Illnesses and reclassify it down to Schedule II was reintroduced in march with the backing of 47 Democratic and Republican co-sponsors. It has been referred to the House Health Subcommittee. Essentially the same bill, H.R. 4498, was introduced in 1981, but hearings on it were never held.
Courts in the early 1970's appeared receptive to arguments challenging the rationality of marijuana scheduling laws. Beginning in 1969, when the court in U.S. v. Kleinsahler, 306 F.Supp. 311 (E.D.N.Y. 1969), expressed doubt about the wisdom or justice of treating youths convicted or possession of marijuana the same as those convicted of selling narcotics-yet left a remedy for the injustice to congress-judges have found state marijuana laws void of a rational basis grounded in medical and scientific evidence.
The court in State v. Zornes, 78 Wash. 2d 9, 469 P.2d 552 (1970), recognized marijuana as non-addictive. People v. McCabe, 49 Ill. 2d 338, 275 N.E.2d 407 (1971), called the drug's Schedule I classification arbitrary and without a rational basis in violation of equal protection rights. People v. Lorentzen, 387 Mich. 167, 194 N.W.2d 827 (1972), held Michigan's punishment for the first offenders in marijuana sale or possession cases to be cruel and unusual punishment. The court in Ravin v. State, 537 P.2d 494 (Alaska 1975), held that possession of marijuana by an adult for personal consumption in the home fell under the constitutionally- protected right to privacy, stating that marijuana was not a public health problem of any significant dimension.
Perhaps the strongest support for proponents of rational change in marijuana laws came with Sinclair, 194 N.W.2d at 886, in which the court tested the constitutionality of a ten year maximum sentence for possession of two joints. Stating the "we can no longer allow the residuals of that early misinformation to continue choking off a rational evaluation of marijuana dangers," the court held that marijuana's classification with opiates in Schedule I was a violation of the constitutional right to equal protection and the right to liberty and the pursuit of happiness.
It was also during this time that almost all states, including Wisconsin, reduced penalties for possession of small amounts of marijuana from felonies to misdemeanors. Since 1973, when Oregon became the first state to decriminalize possession of small amounts of marijuana, 11 states have eliminated incarceration as a penalty for simple possession.
During this same period, however, case law was developing that found marijuana's classification constitutional. In Kantner, 493 P.2d 306, the court said marijuana has many of the properties of a narcotic under scientific definition and held its placement in Schedule I not to be a violation of equal protection and due process rights. It also held that marijuana use does not fall within the "penumbra" of fundamental rights.
U.S. v. Kiffer, 477 F.2d 349 (N.Y. 1973), held the drug's classification to be not so arbitrary or irrational as to justify overturning sentences for possession of two tons with intent to deliver. The majority said any court asked to undertake review of the multiple social, economic and political considerations that usually underlie legislative decisions, as they do in most constitutional challenges to marijuana laws should do so with "caution and restraint." It concluded that the state of knowledge of marijuana's effects at the time was still incomplete and marked by disagreement and controversy.
A spate of federal cases since then have followed these decisions, including U.S. v Gaertner, 583 F.2d 308 (Wis. 1978) Nat'l Org. for the Reform of Marijuana Laws v. Bell, 488 F.Supp. 123 (D.D.C. 1980), Wolkind v. Selph, 495 F.Supp. 507 (D.C. Va. 1980) and U.S. v. Ervin, 602 F.2d 1183 (La. 1979), all holding that the classification of marijuana was not irrational. On the state level, beginning with State v. Rao, 171 Conn. 600, 370 A.2d 1310 (1976), rulings that marijuana's classification involved no equal protection violations were issued in Alabama (Hall v. State, 354 So. 2d 823 (Ala. App. 1977)); Arkansas (Bushong v. State, 267 Ark. 113, 589 S.W.2d 559 (1979)); California (Nat's Org. for the Reform of Marijuana Law v. Gain, 161 Cal.Rptr. 181, 100 Cal App. 3d 586 (1979)); Florida (Albo v. State, 379 So. 2d 648 (Fla. 1980));Illinois (Illinois NORML v. Scott, 66 Ill. App. 3d 633. 383 N.E.2d 1330 (1978), People v Brisco, 78 Ill. App. 3d 282, 397 N.E.2d 160 (1979), People v. Rhoades, 74 Ill. App.3d 247, 392 N.E.2d 923 (1979)); Indiana (Ross v. State, 172 Ind. App. 166, 360 N.E.2d 1015 (1979)); Michigan (People v. Schmidt, 86 Mich. App. 574 272 N.W.2d 732 (1978)); Minnesota (State v. Vail, 274 N.W.2d 127 (Minn. 1978)); Missouri (State v. Mitchell, 563 S.W.2d 18 (Mo. 1978)); Nebraska (State v. Infante, 199 Neb. 601, 260 N.W.2d 323 (1977), State v. Kells, 199 Neb. 374, 259 N.W.2d 19 (1977)) North Dakota (State v. Boushee, 284 N.W.2d 423 (N.D. 1979)); South Dakota (State v. Strong, 245 N.W.2d 277(S.D. 1976)); and Washington (State v. Dickamore, 22 Wash. App. 851, 592 P.2d 681 (1979)).
Prohibition of in-home use was upheld in Arizona (State v. Murphy, 117 Ariz. 57, 570 P.2d 1070 (1977)); Louisiana (State v. Chrisman, 364 So.2d 906 (La. 1978)); Massachusetts (Marcoux v. Att'y Gen., 375 Mass 63, 375 N.E.2d 688 (1978)); and Washington (State v. Seagull, 26 Wash. App. 58, 613 P.2d 528 (1980), State v. Smith, Wash. 2d 329, 610 P.2d 869 (1980)).
Courts in Alaska (Frazier v. State, 566 P.2d 1023 (Alaska 1977)). Shine v. State, 596 P.2d 16 (Alaska 1979)); Arizona (Murphy, 570 P.2d at 1073); California (Gain, 161 Cal. Rptr. at 181); Illinois (Brisco, 397 N.E.2d at 164); Louisiana (Chrisman, 364 So.2d at 907); Nebraska (Kells, 259 N.W.2d at 20); and Washington (Smith, 610 P.2d at 880) held its possession outside right to privacy protections.
Courts in several states found marijuana's classification not to be arbitrary, irrational nor a violation of due process, including Arkansas (Bushong, 589 S.W.2d 560); Arizona (Murphy, 570 P.2d at 1074); Colorado (People v.Bloom, 195 Colo. 246, 577 P.2d 288 (1978); Indiana (Ross, 360 N.E.2d at 1018); Louisiana (Chrisman, 364 So.2d at 907); Minnesota (Vail, 274 N.W.2d at 136); Michigan (Schmidt, 272 N.W.2d at 733); Missouri (Mitchell, 563 S.W.2d at 20); Nebraska (Infante, 260 N.W.2d at 324); North Dakota (Boushee, 284 N.W.2d at 424); Oklahoma (Evans v. State, 569 P.2d 503 (Okla. Crim. 1977) Van Den Brand v. State, 578 P.2d 1207 (Okla. Crim. 1978), and Washington (State v. Gerry, 23 Wash. App. 166, 595 P.2d 49 (1979).
It is likely that state legislatures, as more scientific evidence comes in, will continue to reduce criminal penalties for possession of small amounts of marijuana, and there should be an increase in the number of states which decriminalize possession of small amounts.
Reclassification of marijuana out of Schedule I will be slower in coming, largely because of federal bureaucratic intransigence on the matter. Compared to Congress' quick action in 1937 in passing the Marijuana Tax Act, based on erroneous scientific evidence and racism, and despite court prodding, the Drug Enforcement Administration (DEA) has consistently refused to reclassify on the grounds that not enough evidence is in and that controversy still abounds.
There appears, however, to be a more positive reception to giving glaucoma and cancer chemotherapy patients greater access to marijuana for treatment of their diseases. Medical use of synthetic THC, the active ingredient in marijuana, has already received Food and Drug Administration (FDA) approval and awaits DEA approval. FDA and the Department of Health and Human Services has yet to act on granting patients the same access to marijuana, and the House bill just introduced, while having bipartisan support, generated little interest in Congress during the last session.
Because federal and state legislative bodies have lagged so far behind the scientific evidence as to the proper classification of marijuana, defense attorneys have an opportunity to challenge the constitutionality of the classification of marijuana. Hopefully, the end result of such a challenge will be a declaration that the classification is unconstitutional, a prosecutor abandoning his or her case or some other favorable resolution for your client.
1. Zinberg, "The War Over Marijuana," Psychology Today, Dec. 1976, at 45, 102
2. L. Grinspoon, "Marijuana Reconsidered" (2d ed. 1977)
AN EVIDENTIARY APPROACH TO CHALLENGING THE .10 STATUTE
by Michael F. Hupy
Defense challenges to state drunk driving laws on grounds that the widely-used 0.10 percent blood alcohol concentration (BAC) standard is unconstitutionally vague, have become fairly commonplace. So, too, have the adverse judicial responses to such challenges.
Only one appellate court has agreed with a defendant on the vagueness issue, People v. Alfaro, 143 Cal. App. 3d 528, 192 Cal. Rptr. 178 (1983), but the California Supreme Court in Burg v. Municipal Court, 35 Cal.3d 257, 673 P.2d 732 (1983), has since taken the opposite view on the issue, holding that the standard is constitutional.1
Most of these courts took judicial notice of scientific literature, indicating that the average person's driving skills are impaired enough at the 0.10 level to put him or her on notice that the standard has been reached or is approaching. All of them showed deference to legislative determinations that driving with a 0.10 BAC is dangerous enough to make such conduct criminal.
In a pending Wisconsin case in which our client was charged in 1983 with two counts of homicide by intoxicated use of a vehicle following a fatal automobile-pedestrian accident, the cold judicial reception given traditional vagueness defenses offered little optimism in an area of criminal law where strict liability has become the norm. There was, however, a serious flaw in the past approaches taken by the courts on the vagueness question, at which our defense took direct aim.
None of the prior decisions were issued on the basis of an evidentiary hearing on the vagueness question. Instead of hearing expert testimony as to the ability of the ordinary person to know when his or her blood alcohol level approaches the 0.10 standard, courts were left free to rely exclusively upon scientific opinion which generalized the effects of that BAC on the ordinary person without taking into account a myriad of factors which may alter those effects or make them non-existent.
Arguing that these past decisions upholding the laws' constitutionality were, thus, improper precedent to rely upon, we brought in Dr. James R. Wilson, Professor of Behavior Genetics and Psychology at the University of Colorado-Boulder, in seeking dismissal of the charges against her. His research on the effects of alcohol on human performance considered the most advanced of its kind, evidence based on that research and testimony of Wilson, offers the most promising opportunity to date of finding a 0.10 statute void for vagueness.
Our client is being charged with homicide under a Wisconsin statute which prohibits operating a vehicle while having "a blood alcohol concentration of 0.1% or more by weight of alcohol in that person's blood or 0.1 grams or more of alcohol in 210 liters of that person s breath." 2 Not asked to perform any field sobriety tests at the scene of the accident, she instead registered o.10 percent on a portable breath test, and a blood sample taken 90 minutes later indicated a blood alcohol level of 0.12 percent by weight.
In addition, our client is also being charged under a companion statute which criminalizes operating a vehicle while under the influence of an intoxicant.3 There, physical evidence such as face flushed, eyes watery and bloodshot, incoherent speech and poor balance must be introduced by the state to sustain an "under the influence" finding. In contrast, conviction under the breath/blood test statute requires no physical evidence of intoxication. A jury may find the presumed fact of intoxication from the proved fact of a defendant s blood alcohol level without regard to the presence or absence of physical or mental symptoms at the time of driving.
As the Court of Appeals stated in the lone Wisconsin appellate decision to examine the 0.10 vagueness issue, "[u]nder the law, proof of being 'under the influence' is unnecessary. The statute represents a legislative determination that public safety is per se endangered when a person drives a motor vehicle while having a specified concentration of .10% or more by weight of alcohol in the blood." State v. Muehlenberg, 118 Wis. 2d 502, 505 (Ct. App. 1984).
It is for this reason-that " absolute liability" 4 is predicated upon a scientific reading complicated by multiple factors not known by the average driver and ignored by the 0.10 standard-that the void- for-vagueness doctrine is triggered. The doctrine requires that a penal statute define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited and in a manner that does not encourage arbitrary and discriminatory enforcement. Kolender v. Lawson, _______ U.S. ___ ________, 75 L.Ed. 2d 903, 909, 103 S.Ct. 1855 (1983).
While it is conceded that the 0.10 statutes do not encourage arbitrary and discriminatory enforcement practices because of the precise numerical standard set forth, it is also clear that such laws "may trap the innocent" by not providing fair warning. Grayned v. City of Rockford, 408 U.S. 104, 33 L.Ed. 2d 222, 227, 92 S.Ct. 2294 (1972). "[B]ecause we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, sot that he may act accordingly." Id.
Our challenge of the 0.10 statute reflects generally those made by Defendants in the prior cases-the ordinary person has no reasonable way of determining under it when he or she has reached the 0.10 percent level, placing such laws outside well-established constitutional boundaries for failure to offer "fair notice that . . . contemplated conduct is forbidden by the statute." Papachristou v. City of Jacksonville, 405 U.S. 156, 31 L.Ed. 2d 110, 115, 92 S.Ct. 839 (1972).
Our challenge, however, goes well beyond previous vagueness arguments through reliance on Wilson's research. That work, in sum, found that defining a drunken driver by measure blood alcohol level, gives little indication of how impaired the individual's judgment or physical responses actually are.5 In work with the University's Alcohol Research Center,6 Wilson concluded that blood alcohol level, whether determined by Breathalyser measurements, urine or blood samples, yields an objective-sounding number, but the figure actually tells little about one s ability to drive or function while "legally intoxicated."7
Wilson's testimony in a May evidentiary hearing in a Waukesha County, Wisconsin Circuit Court was based on two studies he co- authored, Effects of Ethanol I: Acute Metabolic Tolerance and Ethnic Differences and Effects of Ethanol II: Behavioral Sensitivity and Acute Behavioral Tolerance. He stated that, absent a scientific test, the ordinary person cannot know what his or her blood alcohol level is, whether it be 0.02, 0.05, 0.18, or 0.12 percent.
The complexity of determining when a certain blood alcohol level is reached in a particular individual, is illustrated by the following Wilson testimony: ..."[I]t took me quite some time working through the metabolic equations trying to make sure every number was right, trying to issue the rate of alcohol clearance for each person s back-extrapolation to get the instantaneous dosage, and coming up with these relevant metabolic parameters for each person took a lot of computer work and a lot of time. It s hard for me to imagine that anyone would know these things about themselves. I don t know my own rate clearance or distribution of alcohol, and I would have to know those to accurately judge how many drinks I can clear per hour, or what my blood alcohol might be after a certain number of drinks taken within a certain amount of time. There is no way that I could do that without knowing some of these basic physiological facts about myself. It s hard for me to imagine that very many people would know those things about themselves since I would have been working in this area and have a better chance of saying I don t know them for myself."
Beyond the mere fact that the means of scientific testing necessary to determine one's BAC are not available to drivers, variability in the factors of gender, age, heredity and body composition and the phenomenon of acute behavioral tolerance make the measurement task that much more difficult.
Some persons with a 0.10 percent BAC would be adversely influenced in judgment and behavior, some might be beneficially influenced and some would remain the same, and "it's very hard to say who's who until you test them," says Wilson.
In his study on behavioral sensitivity and acute behavioral tolerance, the results of fourteen coordination tests taken by persons having BAC's of 0.10 percent show that a significant number of persons actually improved their performance after consuming that amount of alcohol. The percentages of individuals showing an improvement on the coordination and visual perception tests ranged from four percent on one test to forty-one percent on another, with many figures in the twenty and thirty percent range. Reaction time at the 0.10 level, for example, showed improvement in thirty percent of the participants.
The research conducted by Wilson and his associates also found that when persons are kept at the 0.10 percent blood alcohol level for a period of time, their behavior keeps improving. Over this period, acute behavior tolerance-a development within a matter of the same blood alcohol level-sets in., making a person's task in determining his or her blood alcohol concentration by the number of drinks consumed over a given period of time even more difficult. According to Wilson s testimony: "As they sit there and hold their blood alcohol high, who knows how high, but having a drink now and then, they would probably experience within themselves, without knowing it, acute behavior tolerance. Their behavior actually improves and yet, their blood alcohol might be the same or might be somewhat higher, and so, they would probably be fooled into thinking that their blood alcohol is not very high when it is because the behavior is hardly impaired."
Another factor which adversely affects a person's ability to determine his or her alcohol concentration, is chronic tolerance. Under it, the experience of drinking over a long period of time develops a tolerance to the point where although a person is consuming large amounts of alcohol per day, he or she "may show very little in the way of behavioral changes (with) what would seem to us is rather high doses," Wilson testified.
" Even if a person were to be relieved of the need to take into consideration the complicating factors of acute behavioral tolerance and chronic tolerance, for he or she to begin to accurately determine his or her blood alcohol concentration requires knowledge of gender, age, genetic endowment, volume of distribution, relative proportion of fact, absorption rate and clearance rate," Wilson stated.
We expect alcohol to be a behavior depressant, but people differ endogenously or genetically . . . [P]eople vary tremendously on another s functioning, and they respond differently to depressant drugs at various times . . . Seldom do we know without a laboratory test where a given individual falls on that continuum so . . . lacking full knowledge of their genetic and neural capabilities, it would be essentially impossible to say beforehand how their behavior is going to change, if at all.
Even persons of the same gender, height, weight and race, do not metabolize alcohol at the same rate, according to Wilson, thus allowing some persons to clear alcohol through their system at a faster rate.
Other factors which affect the blood alcohol level at any given time, are the type of alcohol consumed, and whether or not food has been taken in along with the alcohol.
Given the unavailability to ordinary persons of knowledge of all of these phenomena, Wilson stated it is clear that they cannot determine their blood alcohol concentrations by the way they feel or by counting the number of drinks they have consumed over a given period of time.
The Alfaro decision, while conflicting with Burg, was in strict agreement with our challenge, even without having considered evidence as damaging to the 0.10 standard as Wilson's.
Construing the constitutionality of California s 0.10 law, the court stated that while the statute is clear and concise in its terms, "[t]he grave problem we perceive in the law is . . . that potential violators are given no rational means of measuring the relative level of alcohol consumption which the statute forbids . . . " Alfaro, 192 Cal.Rptr. at 181.
The California statute gives notice only that a particular percentage of alcohol in the blood of a driver is illegal without further explication, notwithstanding the fact that the measured concentration of alcohol in the blood at any given time is plainly not a matter of common understanding, as demonstrated by the fact that test results of clinically obtained specimens must be interpreted by an expert witness. Id.
In holding that the 0.10 statute was fatally vague and unenforceable, the Alfaro court stated that the law will, if upheld, regularly produce convictions on such palpably unfair terms of notice, since the individual could only speculate as to how and when his blood-alcohol ratio would reach the criminal point. Id. at 182.
Other courts which have examined this issue, however, have held that drivers, given the bare fact that they have consumed a quantity of alcohol, are given a clear warning that to avoid possible criminal behavior, they must refrain from driving. Burg, 673 P.2d at 741.
In accord is Muehlenberg, 118 Wis. 2d at 508:
While a driver may not be able to determine that his blood alcohol content is .10 percent rather than .09 percent, absolute precision is not required to prevent that statute from being declared vague. A person of common intelligence can, with a fair degree of definiteness, believe himself or herself to be in jeopardy of violating the statute if a significant quantity of alcohol has been consumed . . .[A]ny person with common sense will know when consumption is approaching a meaningful amount.
Wilson's testimony in our case shows clearly the error in making such a blanket statement, but it is easy to see why it was made. Instead of opinions based on expert testimony as to the ability of the ordinary person to know when his or her blood alcohol level approaches the legal limit, these courts have issued decisions based on acquiescence to legislative determinations 8 and/or scientific opinion which maintains that almost all persons driving skills are dangerously impaired at a BAC of 0.10 percent. None of them cite Wilson s work.
Of those courts relying in whole or in part on scientific evidence given judicial notice without an evidentiary hearing, Burg stated that "scientific evidence demonstrate(s) that any driver with 0.10 percent blood alcohol is a threat to the safety of the public and to himself", Coxe said it was relying, in part, on "a number of studies and many statistics", and People v. Lewis, 148 Cal.App. 3d 614, 196 Cal. Rptr. 161, 163 (1983), described such evidence as "virtually unanimous scientific opinion".
Such scientific evidence addresses only the question of the effects of a 0.10 percent BAC on the average person. Such opinions, however, offer no guidance on the real issue before the courts: is a statute basing criminal liability on the 0.10 standard void for vagueness because the average person cannot reasonably know when he or she is at or approaching the standard?
In contrast, Wilson s testimony went directly to the vagueness issue, addressing both the multiplicity of factors which impact upon the effects of a 0.10 BAC and the near impossibility of the average person being able to determine, without scientific testing, when that standard has been reached.
Perhaps to bolster the weakness of their scientific evidence on the vagueness question, a number of courts have pointed to the public availability of charts purportedly designed to indicate how many drinks are necessary to raise a person s blood alcohol percentage to the prohibited level. 9
The Muehlenberg court at 508, n.3, stated that it was relying on charts supplied by the Wisconsin Department of Transportation and the State Office for Highway Safety in taking "judicial notice that it requires more than a small amount of alcohol to produce a 0.10 percent blood alcohol content". That court added that while such charts are not "scientifically precise," they serve as helpful guides. Id., since "pragmatically there may be no way for a particular drinker to know the precise moment when he or she reaches the physiological point at which driving or controlling the vehicle will violate the law." Id. at 6.
Such charts, however, are not readily nor even reasonably available to the driving public. In Wisconsin, for example, the "Motorists Handbook" issued by the state Department of Transportation, contains no chart. While the department does issue a blood alcohol measurement chart, printed on a single information sheet along with drunken driving penalties, a description of the state s implied consent law and a definition of "blood alcohol concentration," these sheets are obscurely placed among numerous other informational pamphlets at local driver s license testing stations.
More importantly, such charts are "essentially useless" as a means for the ordinary person or anyone else to determine his or her blood alcohol content or fitness to drive, according to Wilson s testimony. Wilson also stated that a reasonable person cannot determine his or her blood alcohol level based on the number of drinks he or she has ingested during a certain period of time, the method of measurement contained on the charts.
This uselessness, according to Wilson, stems from the charts reliance on assumptions about a standard person. What is a standard person's volume?
Relative volume distribution is their body mass which is permeable to alcohol. Most persons don t know that. The chart would have to assume a standard rate of clearance, and I actually computed it from the one chart I saw, and they were using .015 grams per 100 milliliters per hour.
That is a good statistic in a sense of a mean, a cross, a group of people, but we have already seen people that vary as much as a .09 milligrams alcohol cleared per 100 milliliters per hour, and we have actually seen people as high as .31, more than a threefold difference; so if you re trying to estimate where someone is within that threefold range, you have a huge opportunity for error.
With such charts being "essentially useless" and kept largely invisible from the general public, the ordinary person has no reasonable place to turn to for guidance as to what the 0.10 standard entails and at what point criminal liability attaches for violation of it. Even if such guides were available, Wilson s testimony indicates that, given the complexity of the issue, it would be difficult for the nonscientist to comprehend the standard and its applicability to a particular individual.
The situation here is analogous to that found in Papachristou, 31 L.Ed. 2d at 115-6, in that "the poor among us, the minorities, the average householder are not in business and not alerted to the regulatory schemes of vagrancy laws; and we assume they would have no understanding of their meaning and impact if they read them."
Anyone consulting the statute and the scientific writings which give the law its meaning to determine what constitutes driving with a BAC of 0.10 percent, would be confounded.
The persons who must obey the laws should not have to guess at what the phrase (o.1% or more by weight of alcohol in that person s blood or 0.1 grams or more of alcohol in 210 liters of that person s breath) means. They should have some objective standards to guide them in their attempts to steer between lawful and unlawful conduct. Furthermore, standards cannot lie only in the minds of persons whose duty it is to enforce the laws, State v. Popanz, 112 Wis. 2d 166, 176, 332 N.W.2d 750 (1983). (emphasis supplied).
While other courts have frequently pointed to charts as a clarifying source, Wilson s testimony shows that they offer no help to the ordinary person and cannot be relied upon to salvage an unconstitutionally vague statue. The use of an evidentiary hearing to present the work of Wilson and his associates, thus, undercuts both prongs of the prosecution s case under a 0.10 statute. Not only does it eliminate state reliance on charts as a reasonable reply to defense arguments that the standard is beyond comprehension, but it also places in question the accuracy of the judicial notice given the scientific opinions most often relied upon.
Such opinion is generally presented to courts in a distorted, often erroneous, fashion as well. Typical are the statements made in the state s petition for hearing in Burg: "All the scientific evidence indicates that a BAC of 0.10 impairs any person s ability to operate a car (no matter what his or her individual tolerance to the drug) . . .There is no scientific data, however recondite, to the contrary."
Left uncontradicted, it is these types of statements that courts tend to rely upon to support their findings of constitutionality. The judicial error being made in possession such reliance is clearly unmasked by the Wilson research, making the evidentiary hearing an essential method of unlocking the grip such scientific opinion now has on the courts.
Regardless of how the trial court decides our case, the ultimate decision may be made by the Wisconsin Supreme Court. The research done at the University of Colorado-Boulder offers a new opportunity for the defense to challenge the constitutionality of 0.10 statutes and for courts to consider or reconsider their validity.
The United States Supreme Court refused in May to consider the issue. Burg v. Municipal Court, 83-1562.
Wis. Stat. 940.09(1)(b) (1982).
Wis. Stat. 940.09(1)(a) (1982).
People v. Kappas, 120 Ill. App. 3d 123, 458 N.E.2d 140, 144 (1983).
Press release from the University of Colorado-Boulder Public Information Office (Dec. 20, 1983).
The Alcohol Research Center is one of three centers nationwide funded by a grant from the National Institute for Alcohol Abuse and Alcoholism and donations from private organization interested in alcohol problems. The center is an interdisciplinary effort which includes individuals from the departments of pharmacology, psychiatry, anatomy, behavioral genetics, psychology and pharmacy.
Press release, supra.
See Burg, 673 P.2d at 735; Greaves v. State, 528 P.2d 805, 807 (Utah, 1974); Coxe v. State, 281 A.2d 606, 607 (Del., 1971); Muehlenberg, 118 Wis. 2d at 504.
See Burg; Lewis; State v. Franco, 96 Wash. 2d 816, 639 P.2d 1320, 1324 (1982).
