Fingers In Latex Gloves Gripping A Vial Flul Of Amber-Colored Liquid And Labeled Drug Test, With A Prinout Of A Drug Test Results In The BackgroundJan. 11, 2024 – A statute that criminalizes driving with any amount of cocaine metabolites – including non-active ones – in one’s blood is constitutional because it bears a rational relationship to road safety, the Wisconsin Court of Appeals (District IV) has held in State v. VanderGalien, 2023AP458 (Dec. 29, 2023).

On July 30, 2019, Dustin VanderGalien caused a fatal head-on collision on County Road B in Dodge County.

VanderGalien was driving east in a Chrysler sedan when, driving about 75 mph, he passed a car in the westbound lane.

Jeff M. Brown
Jeff M. Brown , Willamette Univ. School of Law 1997, is a legal writer for the State Bar of Wisconsin, Madison. He can be reached by
email or by phone at (608) 250-6126.

A second later VangerGalien, still traveling in the westbound lane, slammed into left front corner of an oncoming SUV, then struck head-on a Ford sedan traveling behind the SUV.

The collision killed a 22-year-old man who was riding in the Ford.

Plea Agreement

The Dodge County District Attorney filed charges against VanderGalien.

VanderGalien and the state reached a plea agreement in June 2021. VanderGalien pled guilty to the three counts:

  • homicide by operation of a motor vehicle with a detectable amount of controlled substance in the blood (second or subsequent offense);

  • causing great bodily harm by operation of a motor vehicle while having a detectable amount of controlled substance in the blood; and

  • causing injury by operation of a motor vehicle with a detectable amount of a restricted controlled substance in the blood (second or subsequent offense).

The circuit court sentenced VanderGalien to 21 years and six months of initial confinement and 18 years of extended supervision.

Post-conviction Motion

VanderGalien filed a motion for post-conviction relief, arguing the following:

  • Wis. Stat. section 340.01(50m)(c), the section of the vehicle code that defines “restricted controlled substance,” is unconstitutional because it lacks a rational basis;

  • the district attorney violated his rights of due process by not declaring a conflict of interest;

  • his attorney provided ineffective assistance of counsel; and

  • he was entitled to withdraw his plea because it was made knowingly, intelligently, and voluntarily.

The circuit court denied VanderGalien’s post-conviction motion without a hearing. VanderGalien appealed.

Rational Basis Scrutiny

Writing for a three-judge panel, Presiding Judge Joanne Kloppenburg began her opinion by explaining that VanderGalien’s challenge to the constitutionality of section 340.01(50m)(c) would be governed by rational basis scrutiny, as the statute did not implicate a fundamental right or suspect class.

Under section 340.01(50m)(c), “[c]ocaine or any of its metabolites” is included within the definition of a “restricted controlled substance.”

A blood draw of VanderGalien taken about four hours after the crash showed 240 ng/mL of the cocaine metabolite benzoylecgonine (BE) in VanderGalien’s blood.

Kloppenburg noted that in State v. Luedtke, 2015 WI 42, 362 Wis.2d 1, 863 N.W.2d 592, the Wisconsin Supreme Court held that it was reasonable for the legislature to conclude that it was sensible to prohibit drivers from having any amount of drugs in their systems.

Active vs. Non-active

But VanderGalien argued that Luedtke was distinguishable.

VanderGalien pointed out that in Luedtke, the substance found in the blood was active and impairing while BE is an inactive, non-impairing metabolite.

VanderGalien argued that the legislature lacked a rational basis for prohibiting an inactive, non-impairing metabolite in a driver’s blood because such a prohibition lacked any connection to road safety.

VanderGalien pointed out that BE remains in the blood longer than the active, impairing constituents of cocaine. Consequently, he argued, there was no way to tell by the presence of BE in his blood whether he was impaired by cocaine at the time of the crash.

But Judge Kloppenburg noted that while the inclusion of BE in section 340.01(50m)(c) meant that some drivers convicted for having BE in their blood were not impaired by cocaine when they were driving, some drivers so convicted were impaired.

“If an inactive, non-impairing metabolite such as BE was not included as a restricted controlled substance, the State may be unable to prosecute drugged drivers in such cases even though the driver had an impairing substance, cocaine, in the blood while driving,” Kloppenburg wrote.

As a result, Judge Kloppenburg concluded that the inclusion of “[c]ocaine or any of its metabolites” in section 340.01(50m)(c) was rationally related to the objectives of the state’s vehicle code, and therefore c

DA Biased?

VanderGalien argued that the district attorney violated his due process but not stepping aside on the basis that a legal assistant in the district attorney’s office had a close friendship with the crash victim (the legal assistant’s daughter had dated the victim).

But Kloppenburg concluded that VanderGalien failed to make a timely motion to invalidate the prosecution on the grounds the district attorney was biased.

Judge Kloppenburg pointed out that VanderGalien learned of the relationship between the legal assistant and the victim a week before the sentencing hearing but didn’t mention it until his attorney submitted the sentencing memorandum.

That delay, Kloppenburg concluded, robbed the district attorney and the judge of the opportunity to address the bias claim, and VanderGalien had therefore forfeited the claim.

Ineffective Assistance?

VanderGalien argued that his attorney failed to explain to him that the circuit court was allowed to consider read-in charges when sentencing a defendant.

That failure, VanderGalien argued, meant that: 1) his attorney had provided ineffective assistance of counsel; and 2) his plea was not knowing, voluntary, or intelligent.

But Judge Kloppenburg concluded that VanderGalien failed to show that he would not have agreed to the plea agreement if he understood that the read-in charges could be considered at sentencing, beyond making a conclusory assertion to that effect.

She pointed out that before the plea agreement, VanderGalien was facing 190 years in prison “on a straightforward set of facts.”

Regarding whether VanderGalien’s plea was knowing, voluntary, and intelligent, Kloppenburg pointed out that VanderGalien answered ‘Yes’ when asked whether he understood the court could consider read-in charges when imposing sentence.

“VanderGalien did not submit any affidavit or other evidence presenting facts showing that he did not understand,” Judge Kloppenburg wrote.