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A Missoula woman will get another chance to plead her case that she shouldn’t have been charged with driving under the influence because she’d been slipped a date rape drug that caused her impairment.

The Montana Supreme Court last week kicked Leigh Paffhausen’s case back to a lower court, saying she should get the chance to offer evidence that her actions in 2010 were involuntary.

“A hearing is a small price to pay if seeking justice and not simply a conviction is the object of criminal prosecutions,” Justice James C. Nelson wrote for the majority in the 4-3 opinion.

However, in an 11-page dissent, Justice Jim Rice wrote that he was concerned about the decision’s practical implications.

“I am troubled by what the court’s decision means for our state’s continuing struggle with drunk driving and the already difficult problem that DUI cases present for our courts,” Rice wrote. Justices Patricia Cotter and Beth Baker joined the dissent.

Paffhausen was arrested on Jan. 18, 2010, after a Missoula police officer saw her run a stop sign, and then slam on her brakes before another stop sign. When he stopped her SUV, Paffhausen’s breath smelled of alcohol and her speech was slow and slurred, according to legal documents.

Shortly after she was charged, Paffhausen told police she believed she’d been given GHB, a date rape drug, and later filed notice that she intended to use involuntary intoxication as a defense.

“Paffhausen acknowledged that she voluntarily consumed a small quantity of alcohol the night she was arrested. She contended, however, that someone had drugged her without her knowledge, thus she should not be held responsible for anything that happened to her at the hands of a third party,” according to court documents.

But in a ruling later affirmed by the county District Court, Missoula Municipal Court granted a motion by the city of Missoula to prevent Paffhausen from claiming involuntary intoxication, and from calling witnesses about the use of date rape drugs in the city.

Paffhausen then appealed to the Montana Supreme Court, insisting upon her right to call as a witness, among others, Missoula Police Sgt. Scott Pastian, who investigated the case.

“During the course of the proceedings, the defense also learned that several other recent cases of alleged use of the ‘date rape’ drug GHB had occurred in the Missoula area,” according to her brief to the Supreme Court, submitted by Missoula attorney William E. McCarthy. His firm was closed Friday, and he could not be reached for comment.

The brief also said there was a contradiction in the way the state regarded such drugs in sexual assault cases and DUIs.

“How could a prosecutor in a sexual assault case argue that the purpose and effects of a ‘date rape’ drug is to unknowingly impair victims so they cannot act voluntarily, yet also argue that same victim could physical(ly) and voluntarily operate a vehicle and be charged with a DUI?” asks her brief.

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In the state’s reply, Assistant Attorney General Matthew Cochenour cited an earlier case in arguing unsuccessfully that “accepting Paffhausen’s argument would lead to the ‘absurd and paradoxical result’ that ‘the more intoxicated the driver became, the better his chances of avoiding liability under the statute.’ ”

The Supreme Court’s decision triggers a new hearing in the case.

“The evidentiary questions will have to be sorted out,” Cochenour said Friday, with Paffhausen having to prove that she has admissible evidence to support her defense. At that point, the burden of proof is hers, he said.

But if she satisfactorily meets that requirement, then the burden shifts to the state to prove its case against her.

“It’s going to be interesting,” said Missoula City Attorney Jim Nugent. “They’re disagreeing about voluntary acts – the [decision] seems to be focusing on voluntary acts and the meaning of voluntary acts. The word ‘voluntary’ got a lot of focus.”

The hearing has not been scheduled.

Cochenour echoed the dissenting justices’ concerns about the implications if Paffhausen’s defense succeeds – possibly leading to a proliferation of the “somebody put something in my drink” defense, he said.

“Certainly there’s a concern that it could,” he said. “You hope not. We’ll be watching that.”

Missoulian reporter Gwen Florio can be reached at 523-5268, gwen.florio@missoulian.com, or @CopsAndCourts.

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