State v. Dustin J. VanderGalien, 2023AP890-CR, 12/29/23, District 4 (recommended for publication); case activity
VanderGalien pled no contest to three counts stemming from a fatal motor vehicle crash after a non-impairing cocaine metabolite (benzoylecgonine or “BE”) was detected in his blood hours after the incident. The court of appeals rejects his facial challenge to the statute, Wis. Stat. § 340.01(50m)(c), which includes BE as a restricted controlled substance under the motor vehicle code. The court of appeals explains that “the inclusion of cocaine or any of its metabolites in the definition of a restricted controlled substance for purposes of prosecution under the Wisconsin motor vehicle code bears a rational relationship to the purpose or objective of the statutory scheme,” which is to combat drugged driving. Op., ¶30.
The logic underlying VangerGalien’s constitutional claim is relatively simple: How is it reasonable or rational to criminalize driving with a detectable amount of a non-impairing metabolite of cocaine? While VangerGalien concedes that the state has a legitimate interest in criminalizing drugged driving and that the state’s zero-tolerance standard is rational and related to that interest, VangerGalien merely questions why a non-impairing metabolite is included in the definition of a restricted controlled substance. However, VangerGalien’s claim seems to have gone off track at a motion hearing before his plea, at which his own expert testified that cocaine metabolizes in the bloodstream extremely quickly and that the inclusion of BE as a stand-in for the previously existing cocaine eliminates “complex methods of proving guilt,” especially in cases of delayed blood draws. Op., ¶6.
While VanderGalien argues about the problem with “false positives,” in which a driver’s blood might test positive for BE despite the fact that no cocaine was in the driver’s blood while operating a vehicle, the court of appeals notes that his argument “implies that there will be “true positives,” thereby positing the circumstances that exemplify why it was rational for the legislature to include “[c]ocaine or any of its metabolites,” which includes inactive, non-impairing metabolites such as BE, in the definition of a restricted controlled substance.” Op., ¶¶27-28.
To succeed on a facial challenge to the constitutionality of the statute, VanderGalien must prove that “the legislature could not have reasonably determined that the inclusion of inactive, non-impairing metabolites such as BE in the definition of a restricted controlled substance is a reasonable means of combatting drugged driving.” Op., ¶29. Again, relying on VanderGalien’s own expert, the court notes that because an individual may ingest cocaine, operate a motor vehicle with cocaine in their blood, but then test negative for cocaine because of its rapid metabolization, inclusion of BE is a reasonable and rational means to prosecute drugged driving. In other words, criminalizing a few non-drugged drivers is outweighed, at least in the legislature’s eyes, by ensuring easier prosecution of actually drugged drivers.
Aside from VanderGalien’s constitutional claim, he also sought review of claims that (1) a prosecutorial conflict of interest existed that should have invalidated the entire proceedings and (2) that his plea was invalid because his trial counsel failed to explain the effect of dismissed and read-in charges. The first claim fails because VanderGalien forfeited his right to complain about a potential conflict of interest and instead raised the issue at sentencing as a basis for the court to give less weight to the state’s sentencing recommendation. Op., ¶¶34-47. For the same reason, his trial counsel was not ineffective for moving to invalidate the proceedings. The second claim fails because, according to the court of appeals, the record conclusively shows that the effect of dismissed and read-in charges was explained properly and because VanderGalien failed to explain why, even assuming trial counsel had incorrectly explained the effect of read-in charges, he would not have entered his plea and elected to go to trial. Op., ¶¶48-60.
One procedural point to flag is the court’s discussion of whether VanderGalien preserved his constitutional claim despite his no contest pleas. VanderGalien filed a pre-trial motion raising his constitutional challenge, lost after an evidentiary hearing, and then entered into a plea agreement with the state through his he pled no contest to versions of the restricted controlled substance charge he claimed was unconstitutional. Distinguishing between the two types of constitutional challenges raised by VanderGalien, the court holds that he waived his as-applied challenges by entering his pleas, but that his facial challenge survived. Op., ¶¶13-17.
