Wisconsin loophole let drugged-up drivers walk free

Posted at 10:22 PM, Nov 15, 2017
and last updated 2017-11-16 10:12:29-05

A technicality in Wisconsin's law let drivers high on drugs avoid punishment.

Waukesha County has had three cases of drivers on different kinds of the painkiller Fentanyl in just the last month.

One of those is the crash that happened on a January night. If it had happened 30 seconds earlier, Andrew Scalf might not have been able to talk to the TODAY'S TMJ4. I-Team.

"I would have been pretty mangled, wedged between a Suburban and my Altima," Scalf said. Luckily, Scalf had already parked his car and gotten out when the crash happened. He called 9-1-1.

"This guy just rear-ended my car," Scalf is heard telling dispatchers on the call. "I'm pretty sure he's drunk."

Gregory Thew wasn't drunk. He blew a zero on a breathalyzer. But, court documents show he failed this field sobriety test. Officers searched his car and found a broken pipe and a bottle of pills in his car. Another caller told dispatchers they saw thew sleeping behind the wheel just before the crash.

Prosecutors charged Thew with his fifth OWI, not having a license and for the drug items found in his car. A blood test found Thew had an unknown Fentanyl-related substance in his system. 

Thew's defense attorney tells us that amount was not capable of producing impairment.  In an email he wrote "his accident was not caused by any substance. He had nothing in his blood that caused any incident." 

The court dismissed his charges.

In cases like this, the state must know the exact chemical formula of the drug someone is on- but they couldn't prove what Fentanyl-like drug Thew may have taken.

"Some of this stuff, you have to be a chemistry major to understand it," said Sue Opper, the Waukesha County District Attorney.

Opper couldn't talk about Thew's case. But, she said the opioid drug crisis makes her job much harder.

"It is frustrating when you have a case where there's clear impairment and then you almost have to be a detective to figure out what's causing the impairment," Opper said.

The Wisconsin State Crime Lab can tell if someone has a Fentanyl-like drug in their system. But the process still falls short.

"We can tell there's an opiate, but we can't tell what it is. Well, I can't go to court with that type of preliminary result," explained Opper.

Thew's case was dismissed while prosecutors wait for the results from an outside lab.That's when costs add up.

The DA's office has to pay an outside lab about $500 a test to find out what the exact Fentanyl-like chemical is.Then they have to spend more of your tax dollars to fly someone from the lab to Wisconsin to testify in court. The district attorney said her budget for this and next year are set in stone, but she's going to have to add to her 2019 budget to deal with this issue. Opper tells the I-Team it's worth it. 

"It's killed scores, hundreds of people," explained Wisconsin State Representative Joel Kleefish of Oconomowoc. In early November, Kleefish closed the loopholes in state law.

"Our communities, our parents are suffering like never before," Kleefish said.

He spearheaded a bill making all Fentanyl and Fentanyl-related drugs easier to prosecute. It lets police arrest people making or selling altered Fentanyl, And prosecutors don't have to spend money bringing in the lab expert to testify.

The new law won't help victims like Scalf. Still, he is happy to see a change for future victims. 

"It's good to know they do change laws to make them fit to the scenario as times change," he said.

Wisconsin's law was the first of its kind. After it passed, the DEA followed suit adding Fentanyl-related drugs to the list of illegal drugs.

It will only apply to drug cases that happened since the bill became law, so Opper's office will still have to pay for a lab expert to come testify about Thew's blood results. They do plan to charge him again with OWI when the results are back.

Thew was out on bail after the crash in January, but police pulled him over in September. He didn't have a license and wasn't supposed to be driving as a condition of his bail for the crash. New charges were filed for those violations.