Judge tosses second county kava tea case

Citing "a lack of evidence" from prosecutors to demonstrate that the herbal brew indeed caused Olive to drive erratically that morning, Diaz found that he had been wrongfully charged under a statute of the state vehicle code regarding driving under the influence of drugs.

"I cannot find that its application to this defendant is appropriate," she said, granting a motion by defense attorney Hugo Borja to dismiss the case.

Diaz' comments baffled county District Attorney Jim Fox, who said his office has requested a transcript of in-court statements to consider preparing an appeal.

"It is up to a jury as the finder of fact to arrive at that decision," he argued this evening.

The case is the second of its kind ever in California and the second in the past year to baffle the county judicial system. In late October, jurors deadlocked on whether to acquit 47-year-old Taufui Piutau of San Bruno, who was also arrested for weaving on U.S. 101 after drinking kava.

At issue appears to be the definition of kava tea, a drink made from the ground root of a pepper plant, and its place in the application of state law regarding driving under the influence of alcohol or drugs.

The state vehicle code defines a drug as "any substance or combination of substances ... which could so affect the nervous system, brain, or muscles of a person as to impair, to an appreciable degree, his ability to drive a vehicle in the manner that an ordinarily prudent or cautious man ... would drive a similar vehicle under like conditions."

Kava is a beverage laden with significance in P olynesian cultures and among the people of the South Pacific, who useit in social and religious rituals. Proponents of the beverage, including a growing number of health-conscious Americans, say it is a muscle and nerve relaxant that, at the worst, may cause drowsiness.

Neither side in today's court case disputed that Olive, driving a white van that night, swerved oddly from the highway's middle lanes to the shoulder and back as he cruised below the speed limit towards East Palo Alto.

California Highway Patrol Officer Dave Newton, who arrested the Mesa, Ariz., resident, said in court today that it appeared Olive was not in full possession of his faculties. Olive twice drifted onto the shoulder, Newton said, and failed three separate field sobriety tests.

A breathalyzer test, however, revealed he had no alcohol in his blood. "I had the opinion that he was under the influence of alcohol or drugs,'' he said, "based on his driving, his watery eyes, his sluggish movements and his failure of field sobriety tests." After suggesting that Olive may not have understood the sobriety tests due to his limited English, Borja argued that his client did not consider himself impaired from drinking kava. In the absence of concrete legal wording on the subject, he added, the highway patrol should not be allowed to arrest motorists for driving under the influence of a substance that has not been adequately defined.

Prosecutor Rachel Holt countered that it was not the kava at issue, but Olive's obviously unsafe driving.

"The issue here is the impairment,'' she argued. "What should be held most important here is, when a person is given the privilege of a driver's license, they should know whether they are impaired for driving. It's a responsibility, it's something you should know."

But Judge Diaz apparently disagreed, saying in effect it was not up to officers and prosecutors to determine what substances impair a driver's abilities.

"The real issue here is not the stop," she said, noting the officer did the correct thing to pull over the weaving white van.

Instead, she asked, "Is the application of the statute to this substance patently unfair? Would we be sitting here if the defendant said he had 23 cups of hot milk?"

Speaking through an interpreter outside the courtroom, Olive said he was "very glad" the case against him was dismissed. Borja, who said Olive had been forced to remain in the Bay area for the last six months, said his client would likely return to Arizona in the near future.

Despite October's hung jury and today's follow-up setback, District Attorney Fox said his office has no plans to change its approach to the prosecution of motorists driving unsafely under the influence of kava tea.

"Not at all," he said.<