Johns Island crash that sparked suspicion of marijuana use ignites talk of ‘drugged driving’ law

By Andrew Knapp, The Post and Courier

A traffic crash last summer that left a woman with permanent injuries has inspired a call by Charleston-area officials for new laws that impose harsher penalties on drivers who do drugs before hitting the road.

Lauren Grantham, 28, was left with scars, internal injuries and lasting back problems after the wreck on Johns Island that prompted the arrest of 29-year-old Jesse Todd Finne on a charge of driving under the influence.

A blood test showed a low level of marijuana’s active ingredient in Finne’s system, but he pleaded guilty Feb. 12 to a lesser charge of careless driving that resulted in no jail time.

 Prosecutors didn’t think they could prove that the drug had impaired his ability to drive.

But Grantham and her family argued that any amount of an illegal drug shouldn’t be tolerated and should be enough to use as evidence in a DUI case, especially if the driver causes a serious wreck.

Ninth Circuit Solicitor Scarlett Wilson and Charleston County Sheriff Al Cannon both urged legislators to look into such a “per se” law that would prohibit any concentration of an illegal drug without requiring authorities to prove that the substance had impaired the driver.

Cannon, whose agency arrested Finne, said a deputy noticed signs of impairment in the suspect — slurred speech, slow reaction time, trouble remembering the wreck — but that they could have been attributed to the effects of the crash if his attorney got a chance to challenge the case at trial. The sheriff urged legislators to first study the possibility of a new law banning any illegal drug in a driver’s system.

“Our DUI laws need to change. … This family is as upset as I would be,” he said. “People have gotten away with driving under the influence of drugs because they didn’t display the traditional signs and police officers didn’t recognize them.”

One state lawmaker, a Midlands senator, already has proposed a bill that he thinks would fill a gap of offenses between a felony DUI charge and traffic tickets like the ones Finne got. The measure would add a new crime of felony reckless driving with great bodily injury. It’s meant to address situations like Grantham’s to ensure that a drugged driver not prosecuted for DUI is still exposed to possible prison time.

But Grantham’s mother, Candy Kern-Fuller, argued that enough evidence existed to prosecute Finne under current laws and that adding new ones would do little good. Choosing not to go to trial because a case would be difficult to prove is a “huge disservice to victims and citizens,” she said.

“It doesn’t matter how many laws we write if prosecutors don’t adequately prosecute them,” said Kern-Fuller, an Upstate attorney. “If they plead down cases, it will do no good to write new laws.”

Under the influence?

Grantham was driving on the Limehouse Memorial Bridge on Main Road late on July 12 when Finne’s car pulled across a paved median with reflectors and hit her head on.

He suffered minor injuries to his chest, but Grantham had a spinal fracture and perforated intestines. She underwent two surgeries during more than a week in a hospital, and the lingering effects from the ordeal have limited physical activities for the former gymnast and College of Charleston graduate.

That night, Finne told a deputy from the Charleston County Sheriff’s Office that he couldn’t recall what had happened, but Grantham remembered the experience in detail. Her family would later argue in court that Finne’s memory lapse could have been an effect of marijuana.

Finne was arrested at the hospital on a DUI charge and a count of driving with a suspended license. He had a past arrest on felony and misdemeanor drug charges from late 2013, when Charleston police officers found marijuana, oxycodone and a pistol in his car.

Despite Grantham’s injuries from the crash, Finne never faced a charge of felony DUI with great bodily injury. He instead pleaded guilty to careless driving and second-offense driving with a suspended license. He’ll pay a fine but avoid further jail time.

Grantham and her mother unsuccessfully argued in court for a magistrate to reject the plea.

“A trained accident investigator made several notes about Mr. Finne’s impairment,” Kern-Fuller said. “And the law says it’s unlawful to drive under the influence of drugs … that cause” impairment.

Sign of what’s to come?

Wilson, though, said the decision to accept a plea from Finne came after her office consulted with the state lab expert who tested his blood. Marijuana’s active ingredient was measured at 2 micrograms per liter, but if it had been one-tenth of a microgram lower, his blood would have tested negative for the drug.

That’s one of the reasons the General Assembly should consider setting a level of drug concentration that would be outlawed, Wilson said. Already on the books is a law that allows authorities to charge someone with driving with an unlawful alcohol concentration if they can’t prove that the driver is drunk. The driver must have a blood alcohol level of 0.08 percent or higher.

Behind alcohol, marijuana is the second most common substance found in impaired drivers after serious wrecks, according to the National Institutes of Health. It can affect a driver’s attentiveness and awareness of speed.

A 2010 report by the National Highway Traffic Safety Administration listed 15 states with “drugged driving” laws prohibiting various amounts of an illegal substance in a driver’s blood. A dozen of them have zero tolerance. The report found that the laws “did not necessarily make enforcement easier, but did have a positive effect on prosecution.”

Lawmakers here should first gather advice from experts and determine a level in a driver’s blood that would constitute a positive test, Wilson said, then “cobble together a law that’s good for our state.”

She said that current laws place “an unnecessary and unacceptable” burden on prosecutors to prove drug levels and their link to a driver’s impairment. But creating a law that bans certain substances outright could “immensely” benefit prosecution of cases like Finne’s, she said.

“If you’re using illegal drugs and you’re getting behind the wheel at all, you should be strictly liable,” Wilson said. “That’s one of the hazards you face. You assume that liability.”

Cannon said he agreed with Grantham and her family that Finne could pose a “continuing threat” to others on the road. His deputies will try to “address” that, he said, by keeping an eye out for Finne.

But the sheriff understood why the prosecutors couldn’t pursue the DUI charge against Finne during a trial.

Cannon said, though, that the case is troublesome in how it also foreshadows the problems South Carolina would face if it approves marijuana for recreational use. Mexican marijuana growers also would turn to more potent illegal drugs like heroin and step up their production and exports to the U.S. Law officers nationwide already have seen a spike in heroin overdose deaths as a result of loosening restrictions against pot, he said.

DUI laws also have been “watered down” by recent court cases related to problems with how officers film arrests, he added.

“This is a prelude to the kind of cases we’re going to have if the General Assembly does anything that makes drugs more accessible,” he said. “This tragedy of this young lady who’s permanently injured is potentially an indicator of the kinds of problems we’re going to see down the road.”

‘Even bigger concern’

But one lawmaker said he’s already responding to similar cases in the Midlands in which drivers who cause serious accidents because they’re driving recklessly, drinking or doing drugs wind up with just a traffic ticket.

Sen. Shane Massey, R-Edgefield, reiterated a common line that Wilson said defense attorneys often use during DUI trials: “It’s only illegal to drink and drive if you’re impaired.”

Under the current DUI law, prosecutors must prove that someone’s ability to drive was “materially and appreciably” affected at the time of a crash or a traffic stop. That’s usually done through videotaped sobriety tests, but attorneys have found ways around such evidence.

Massey, an attorney, drafted a bill that would create the offense of felony reckless driving with great bodily injury, a charge that would carry up to 10 years in prison. Current law contains only a provision for reckless vehicular homicide but none for a situation in which a seriously injured victim survives.

The charge would require authorities to prove a reckless act, such as weaving through traffic or veering over the center line as in Finne’s case, the senator said.

“That type of behavior warrants a higher level of punishment than a traffic ticket,” Massey said. “There’s a big gap right now between traffic tickets and felony DUI law, especially if someone actually survives.”

For cases when drugs do show up in a test, Massey said he would consider a law banning any illegal substance without a requirement to show impairment.

When drafting drunken-driving laws, he said, South Carolina legislators always have operated on a policy of requiring some level of impairment. But a measure targeting drugs that are already illegal might be “an easier sell,” he added, though it needs further study.

“If you’re driving with those things in your system,” Massey said, “that’s an even bigger concern.”