Senators sign off on edited DWI bill

Revision needed for highway funding

Lawmakers moved closer to changing language in the state's statutes on driving while intoxicated that officials said jeopardized nearly $60 million in federal highway funding.

After failing twice Tuesday, legislation making an alcohol-related DWI a "strict liability" offense passed the Senate Judiciary Committee on Wednesday.

Senate Bill 4, by David Johnson, D-Little Rock, then passed the Senate on a 25-6 vote. It was later approved by the House Judiciary Committee and is set for a final vote in the House of Representatives today.

"Perfect is the enemy of the good," Johnson said. "I still think we should have a strict liability standard across the board but the bulk of DWI offenses are alcohol-related and I think this is a reasonable approach."

The state's DWI law was put on the special session agenda by Gov. Asa Hutchinson after state highway officials learned that an Arkansas Supreme Court ruling in late April threatened to put the state out of compliance with federal requirements for some types of roadway aid.

The appeal was filed by Robert Leeka, who was arrested in August 2013 in Springdale for driving while intoxicated. After his conviction in Washington County Circuit Court, he asked the state Supreme Court to overturn it.

Leeka did not test positive for alcohol, but he was under the influence of a prescribed sleep-aid, one which is known to have a side effect that can cause "sleep-driving."

He argued that he had not intended to be impaired when he got behind the wheel and was therefore innocent of the charge.

In April, the state's high court reversed his conviction, agreeing with Leeka that his DWI arrest required him to have a "culpable mental state" in order to be prosecuted.

Absent a culpable mental state, prosecutors would have to use a "reckless" standard, and show that someone took steps before driving that he should have reasonably known could run afoul of the law.

Arkansas Highway and Transportation Department attorney Rita Looney said the law on which the ruling was based -- if unchanged -- exposed Arkansas to a loss in federal funding.

Johnson's original version of SB4 made any charge of driving, or boating, while intoxicated a matter of "strict liability."

But several lawmakers thought Johnson's fix went too far and on Wednesday, Johnson presented the bill again, clarifying that the strict liability applied only to alcohol offenses.

Senate Judiciary Committee Chairman Jeremy Hutchinson, R-Little Rock, said that under Johnson's older version, a prescription drug taken four days earlier that came up in a blood test could be used to help obtain a conviction.

Under the current law, a person's blood-alcohol content is used as a yardstick for determining whether a driver is legally intoxicated, but it's harder, Hutchinson said, to define "intoxication" when the substance is a prescription medication.

"[Blood-alcohol content of] 0.8 is good. It's clear. It's measurable. It's 'you were drunk' ... I think a judge needs to hear all of the facts on a [controlled substance]. It's not clear and concise."

Sen. Joyce Elliott, D-Little Rock, also said it could put people on the hook for prosecution if they had been drugged without their knowledge or consent.

Although the strict liability standard would apply only to alcohol intoxication, it should be easy to prove "reckless intent" when illegal drugs are the cause, Johnson said.

Cases like Leeka's "are few and far between," Johnson said. "It'll be those handful of cases that involve prescription drugs ... where the state will be vulnerable."

Metro on 05/28/2015

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