Topeka ? Possessing illegal drugs is a crime, but it’s not a crime once the drugs are inside the body.

Some law officials and legislators say that doesn’t make sense, and they want to make it illegal to inject or ingest prohibited substances.

“Certainly, the person driving with mind-altering drugs in their system is more of a public risk than the person with those same drugs in their pocket,” said Kyle Smith, deputy director of the Kansas Bureau of Investigation.

Under the proposal, a person with a urine or blood sample that tests positive for drugs could be charged with possession, an offense that has a maximum sentence of one year in jail.

But others say trying to make “internal possession” illegal would become an expensive, legal nightmare.

“The cost – in money, civil liberties, societal costs and progress made in getting people needed drug treatment – is too great,” said Sal Intagilata, secretary of the Kansas Association of Criminal Defense Lawyers.

The issue has come up in the Legislature before and is bound to again.

Last year, a similar proposal won overwhelming approval in the House but failed by three votes in the Senate when it was stopped by an unusual coalition of moderates and conservatives.

Recently, an interim legislative committee rejected recommending the measure, but supporters of the idea are expected to push for it again when the 2006 legislative session starts in January.

War on drugs

The Kansas Highway Patrol favors the legislation. Lt. John Eichkorn, a spokesman for the patrol, notes that current law allows people to be arrested for driving while under the influence of drugs and to test those people to collect evidence.

“Unfortunately, there is no provision in current law that makes it illegal to internally possess controlled substances found during these tests,” Eichkorn said.

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Since sometimes violent crimes are committed while under the influence of illegal drugs, Eichkorn said, making internal possession of controlled substances illegal would help protect the public and “help all law enforcement agencies across the state fight the war on drugs.”

Smith, with the KBI, however, said that while the proposed law sounds good, there are numerous practical obstacles.

In drug cases, he said, law enforcement usually focuses on drug dealing and manufacturing, which carry heavier penalties than possession. Standard possession cases, which usually carry no prison time, “are sometime seen as a waste of resources,” he said.

He said there would be substantial expense to hire more scientists to analyze tests and to improve the tests to identify the drugs and measure their quantities, he said.

Prison officials have also said there would be added expense and strain on the prison system, which currently is at capacity. But no definite cost study has been made because there are so many variables in how it would be enforced.

Legal hurdles

Intagilata said there are numerous legal questions, too.

What if a person tests positive because they are taking prescription drugs or were at a party where others were smoking marijuana?

Who determines when a law enforcement officer can subject a person to a drug test?

“The power generated by this law is ripe for abuse,” he said.

And, he said, it runs counter to the state’s policy of the past couple years to try to seek treatment for offenders with drug abuse problems.

Others have raised questions about whether such a law would violate a person’s Fifth Amendment right against self-incrimination, and it could result in arrests of people who have taken a urinalysis for employment or to determine paternity.

Douglas County Dist. Atty. Charles Branson said he wasn’t familiar enough with the proposal to say whether he would support it.

“I would have to take a look at it,” Branson said. “From a practical standpoint, you would have to get a search warrant every time you think someone has something in their system.

“How would you form the basis to get the search warrant?”

But one of the primary sponsors of the bill, Rep. Kathe Decker, R-Clay Center, has said the extra costs are acceptable, and the hurdles can be overcome.

Decker couldn’t be reached Tuesday for comment, but last session told a Senate committee, “I believe those costs are well worth the effort in the war against drugs.”

She related a story about a young man in her hometown who was high on drugs and running through a neighborhood without clothes on. When authorities arrested him, the man, who was suffering personal problems, could only be charged with trespassing, she said.

“If he could have been charged with possession, perhaps he could have gotten some help,” she said.