State v. Walter L. Johnson, 2024AP79-CR, 2/13/25, District IV (recommended for publication); case activity
In a case resolving a hot issue for OWI litigators, COA rejects challenges to an RCS prosecution based on the chemical difference between “L meth”–found in certain nasal decongestant sprays–and “D meth,” which is found in illicit street drugs.
Johnson was involved in a fatal crash in which he is alleged to have been driving at over 120 mph. (¶6). The Wisconsin State Laboratory of Hygiene eventually tested a sample of his blood and reported that it contained 24 nanograms per milliliter of methamphetamine. (¶7). That is the basis for two charges relevant to this appeal, both of which require proof that Johnson was operating “with a detectable amount of a restricted controlled substance in his blood.” (¶5).
Johnson filed two motions to dismiss, both of which hinged on the distinction between “L-meth”–an isomer of methamphetamine found in over the counter medications–and “D-meth,” the isomer associated with the illegal street drug. (¶¶8-9). Johnson argued that the statute does not criminalize L-meth and that the State (who by this point had destroyed the blood sample) was therefore required to prove his blood contained D-meth. (¶9). In the alternative, he argued that it was unconstitutional for him to be prosecuted for having L-meth in his blood. (Id.).
At a subsequent evidentiary hearing, the Hygiene Lab conceded that, even if it had Johnson’s blood sample, it lacked the ability to distinguish between L-meth and D-meth. (¶10). The circuit court agreed with Johnson that the statute did not criminalize L-meth and that the State was therefore required to prove his blood contained D-meth. (¶11). However, it declined to dismiss the charges, finding that the State was entitled to prove this fact by “corroborative and/or circumstantial evidence.” (Id.). The State petitioned for interlocutory review, resulting in a decision addressing three discrete issues:
Forfeiture
Johnson first argues that the State forfeited the statutory interpretation argument it presents in this appeal by not sufficiently raising it in the circuit court. (¶16). COA reiterates applicable case law that the appellant must do more than just gesture in the general direction of an issue and must instead “articulate each of its theories” to the court. (¶16). However, it then goes on to clarify that parties are not prohibited from “refining” their arguments in COA, including by “introducing additional support” for arguments previously raised below. (¶17).
Here, COA’s review of the record discloses that the State “squarely addressed” the issue presented on appeal when responding to Johnson’s circuit court filings. (¶18). Even though the State did not “elaborate on” that legal theory, it sufficiently referenced the arguments it now presents in this forum so as to avoid forfeiture. (¶18). And, even if the State had failed to sufficiently preserve the issue, COA holds that it would overlook forfeiture in this instance. (¶19).
Whether L-meth is a “restricted controlled substance”
In essence, COA relies on a relatively straightforward plain meaning analysis to conclude that Johnson’s arguments about L-meth are irrelevant given the text of the statute, which lists “methamphetamine” as a restricted controlled substance. (¶24).
Note: This case involves a lot of statutory citations, as Johnson’s conduct actually entails three different (largely identical) statutory provisions defining a “controlled substance.” (§340.01(50m); 939.22(33); and 967.055(1m)(b)). For the sake of clarity we will follow COA’s lead and refer generically to “the statute” when discussing the meaning of a RCS under Wisconsin law.
Johnson does not dispute that L-meth is meth. (¶25). This is a problem for him, as the statute does not break down the definition of methamphetamine into specific isomers. (¶25). Accordingly, COA declines to carve out an exception where the legislature has not seen fit to do so. (Id.). It also finds textual support for its reading with respect to an affirmative defense the legislature has already created for persons prescribed “methamphetamine or one of its metabolic precursors.” (¶26). This demonstrates the legislature’s consistent use of methamphetamine as an umbrella term, without the distinction claimed by Johnson. (Id.)
COA therefore rejects a complex argument developed by Johnson reliant on language in Chapter 961 which appears to divest the legislature of the authority to “control a substance” if that substance may be lawfully sold over the counter pursuant to federal law. (¶29). COA analyzes the applicable federal law and holds that while it excludes certain products containing L-meth from regulation, it does not specifically exclude L-meth, in and of itself. (¶31). This reading is consistent with the holdings of four federal circuit courts of appeal. (¶32). COA also relies on an analysis of the Federal Register to support its conclusion that L-meth is a controlled substance under federal law. (¶33).
While Johnson argues this leads to an absurd outcome whereby a person with a prescription for methamphetamine has a valid defense but a person lawfully using an over the counter product does not, COA holds that there are rational justifications for the legal distinction and, in any case, such policy considerations are outside its purview. (¶¶35-36). Finally, while Johnson appears to have identified legislative history supporting his claim that the legislature did not intend to criminalize L-meth, COA holds that these sources are irrelevant given the unambiguous nature of the plain text. (¶38).
Constitutionality
Applying rational-basis scrutiny, COA holds that the statute survives Johnson’s constitutional challenge. In essence, “Johnson argues that a prohibition against having a detectable but non-impairing amount of L-meth, what he characterizes as a ‘perfectly legal substance,’ in the blood while driving for purposes of prosecution under the Wisconsin motor vehicle code and criminal code violates due process.” (¶46). However, Johnson has neglected to provide any support for the assertion that “it is possible to have a ‘detectable but not impairing’ amount of L-meth in the blood.” (Id.). Problematically, he acknowledges that L-meth may be impairing at high doses. (Id.).
However, even if Johnson’s underlying assumption is treated as true–that persons can be prosecuted under Wisconsin law for using an over the counter nasal spray that does not cause them to be impaired–COA holds that there is still a rational basis for the legislature’s choice: the need to zealously prosecute drugged driving. (¶47). Essentially, because the distinction drawn by Johnson would make it more difficult to prosecute drugged driving cases involving methamphetamine–and given the lab’s inability to tell the two substances apart–the legislature could reasonably have chosen not to make things harder for prosecutors in these types of cases. (Id.).
Finally, COA rejects Johnson’s equal protection argument, which hinges on the fact that another potentially-impairing over the counter substance, DXM cough syrup, is not a controlled substance and thus cannot support a RCS prosecution. (¶51). Essentially, he argues that it is unfair that nasal spray users be treated differently than cough syrup users. COA, however, is unpersuaded and holds that L-meth, because it is incapable of being distinguished from D-meth under existing testing capabilities, is rationally treated differently by the legislature. (¶52).
Accordingly, COA reverses and holds that the State must only prove that Johnson had a detectable amount of methamphetamine in his blood in order to prevail at trial. (¶54).
