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Originally Posted by Greenbud

Experts question scientific sense of substance law
Prosecutor must only prove the drug was in the defendant's system

By JEFF PARROTT | South Bend Tribune | July 9, 2004


Christina Kranc can relate to what Brian Feely, her friend charged in the deaths of teens <B style="color:black;background-color:#A0FFFF">Clark </B><B style="color:black;background-color:#ffff66">Goerke</B> and Ryan <B style="color:black;background-color:#ff9999">Morris</B>, is going through.

While baby-sitting 6-year-old Madeline Miller on July 7, 2002, Kranc errantly turned into the path of a pickup truck in <B style="color:black;background-color:#99ff99">Granger</B>, causing a crash that killed the girl as she rode in the back seat of Kranc's car.

She said the girl's family, close friends of the Krancs, have been forgiving and supportive, but she received anonymous hate mail, heard whispers at school and still thinks about "Maddie" often.

Kranc said she does not smoke Marijuana, but a lot of kids her age occasionally do.

"If I had Marijuana in my system from three weeks before (the crash that killed Madeline), would I be in jail?"

She might be.

St. Joseph County Prosecutor Michael Dvorak is charging Feely under a law that makes it a Class D felony to cause serious bodily injury while operating a motor vehicle with a controlled substance in the body.

Changes in law

Dvorak's burden of proof is much lighter than it was when the law was first enacted in 1994. Initially, a controlled substance had to be in the blood.

But prosecutors were losing in court because too many police, through either laziness or ignorance of the law, were collecting only urine from defendants after accidents and were failing to collect blood, said Andy Maternowski, a South Bend native who now practices criminal defense law in Indianapolis and often handles drug-related cases.

So in 1997, the General Assembly broadened the scope of the law, changing its language to say that, for a conviction, controlled substances "or their metabolites" could now be present in the body rather than just the blood.

Roger Maickel, a Purdue University professor emeritus of pharmacology and toxicology, said the revised law is not grounded in science.

"I would not consider that a medical or scientific definition, but that does not surprise me with the Legislature," said Maickel, who has studied the field for 44 years. "Scientifically speaking, that's a bad law. A drug in the urine is not in the body. Geographically it is, but not medically. It cannot get in the brain, so it cannot have any effect (on driving), very simply."

Professor James Klaunig, director of toxicology at the Indiana University School of Medicine and former director of the state's Department of Toxicology, agreed.

"What we teach is, material in urine shows use, material in blood shows impairment," Klaunig said.

Klaunig said Marijuana can remain detectable in the urine of a frequent user, or someone who smokes daily, for up to 28 days. It can linger in occasional users for up to two days, he said.

Maickel said it can last even longer in those who smoke it infrequently. Feely's urine could have tested positive for Marijuana from smoking it the previous weekend, without his driving ability being impaired, he said.

What the tests show

By "coming out," Maickel was referring to the process by which the body rids itself of the drug.

After a person smokes Marijuana, it passes through the lungs into the blood stream, is absorbed into the brain and is stored as tetrahydrocannabinol, or THC, in fat cells, Maickel said.

It slowly leaves fat cells and is converted by the liver into derivatives of THC that are excreted in the urine.

THC is the compound that gives Marijuana its narcotic effect, but by the time it has been metabolized, it is "biologically inactive," meaning, "you can't get high on the stuff," Maickel said.

Maickel and Klaunig said people should not jump to conclusions about whether Feely's drug use led to the deaths of <B style="color:black;background-color:#A0FFFF">Clark</B> and Ryan until the results of his blood tests, and at the least, specific drug levels in his urine, are known.

If THC is found in the blood, however, it means Feely smoked Marijuana within two to four hours before the crash, Klaunig said.

If the blood test results, expected in a couple weeks, reveal the presence of Marijuana, Dvorak has said he could elevate the charges to Class C felonies, which would carry up to eight years in prison for each of the two charges.

But even charging Feely with the Class D felonies, based solely on his urine test, would be an injustice, said Maternowski, the defense attorney.

"It doesn't make any sense whatsoever," Maternowski said of the law. "The fact there are metabolites in the system has nothing to do with the wreck."

More testing

Aside from the drug issue, the Krancs want to know how police have determined Feely crossed the center line. There were no witnesses to the crash and Feely told them he never applied his brakes because he never saw the <B style="color:black;background-color:#ff66ff">moped</B>, which would eliminate the skid marks that crash reconstructionists typically study.

Dvorak has alleged in court documents that Feely told hospital personnel he had been speeding. He also had been taking Vicodin, a pain killer, which investigators determined had been legally prescribed for his injured hand.

Dvorak, out of town this week, was unavailable for comment, and James Rutkowski, the police officer investigating the crash, declined to comment. Jaimie Thirion, St. Joseph County Police spokesperson, said police would not yet reveal what led them to conclude Feely had crossed into the opposite lane and struck the <B style="color:black;background-color:#ff66ff">moped</B>.

"We can't get into specifics as to why we believe that because at this point our investigation isn't complete," Thirion said.

Thirion also said police could not release the level of THC in Feely's urine because results from the tests taken that night at Saint Joseph Regional Medical Center only indicated the presence of the drug, not its level.