Drugged driving 

Court sets precedent

On Jan. 18, 2010, Leigh Paffhausen took a shot of Fireball Whisky while on shift as a bartender at the Elbow Room. Soon after, she began acting strangely.

"She was fine," says Paffhausen's lawyer, William McCarthy. "And then she wasn't."

McCarthy says Paffhausen took a celebratory whisky shot at about midnight with others. Paffhausen's colleagues said later that she was out of character and that she simply disappeared after her shift. At roughly 2 a.m., when Missoula police pulled Paffhausen over for failing to yield to a stop sign, McCarthy admits, "There isn't a question, she was impaired."

Exactly what caused her to be impaired remains under dispute. Paffhausen failed to submit to a Breathalyzer test and was charged in Missoula Municipal Court with drunken driving.

McCarthy says that in the days after Paffhausen's arrest, others also complained of becoming significantly impaired after drinking little alcohol at the Elbow Room that night. "They had a shot in common," he says of the Fireball Whisky.

The reports, along with Paffhausen's uncharacteristic behavior, led McCarthy and Paffhuasen to believe that she had been drugged with GHB, known as the date rape drug.

McCarthy says he handed over a list of people who could back Paffhousen's claims to the Missoula Police Department, which, according to court documents, conducted an investigation. The problem for McCarthy—and for Paffhuasen—was that Montana law prohibited them from mounting what's called an "involuntary intoxication" defense in response to DUI charges. The law barred him from calling anyone who could bolster Paffhausen's claims. Police did not share their investigatory findings.

On Nov. 20, the Montana Supreme Court, in a 4-3 decision, ordered that Paffhausen receive a new trial to air the evidence. Marking a significant new precedent, the court for the first time said that involuntary intoxication can be used as a DUI defense.

While the majority said it was only fair that Paffhausen be allowed to mount a comprehensive and vigorous defense, Supreme Court Justice James Rice warned in the dissent that the court could now be making it even easier for drunken drivers to elude responsibility. "This may open the door to all manner of 'I didn't know' defenses," he wrote.

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