On April 17, 2016, Pennsylvania became the 24th state to legalize Cannabis as a medical treatment when Governor Wolf signed the “Medical Marijuana Act.” While the Act has addressed many concerns on the medical administration of the drug, those utilizing this treatment must understand that Pennsylvania still classifies Cannabis a Schedule I Controlled Substance. This classification, despite the legalization for medical purposes, leaves patients at risk for criminal prosecution under the Pennsylvania Traffic Code for a Driving Under The Influence (DUI) of a Controlled Substance.
Under the Pennsylvania Traffic Code, a person may not operate or be in actual physical control of a vehicle if there is ANY amount of a Scheduled I Controlled Substance, as it is defined under the Pennsylvania Controlled Substance, Drug, Device, and Cosmetic Act. A person is also prohibited from driving if he or she is under the influence of a drug or the combination of drugs to a degree which impairs that individual’s ability to safely drive, operate, or be in actual physical control of a vehicle within the Commonwealth.
Most people, unfortunately, assume that driving under the influence charges in Pennsylvania are specifically reserved for alcohol or an illegal substance such as crack cocaine or heroin. The law does not distinguish between a legal or illegal substance. Medical marijuana patients, therefore, must understand that if they choose to drive while utilizing this drug treatment, the risk of a possible DUI arrest and conviction which could carry mandatory jail time, a license suspension, fines and substantially increased insurance rates. The Pennsylvania Traffic Code specifically requires the Commonwealth to establish, beyond a reasonable doubt, that an individual was under the influence of a drug to a degree which impairs that person’s ability to drive safely, but not a specific drug! Under the Code, the Commonwealth is not required to introduce any type of blood or chemical evidence to meet its burden of proof. An assistant district attorney (prosecutor) can obtain a conviction from the testimony of the arresting officer as to an individual’s physical presentation following an arrest. The prosecution does not necessarily need to produce an expert witness to testify about a person’s impairment if they can introduce testimony through the arresting officer which sufficiently addresses the issue of impairment (i.e. failure of a field sobriety test, bloodshot eyes, the odor of marijuana).
A Potential Problem For Medical Marijuana Patients
The Code does not require blood evidence but does require the prosecution to establish impairment. It applies to legally proscribed and illegal drugs. The Code does have a strict liability charge which means that the Commonwealth only has to establish that the motorist was driving or in operation of the vehicle and either a Schedule I drug (including medical cannabis) or non-prescribed drug was in the person’s system at that time.
A medical marijuana patient is potentially guilty of a DUI if he or she is stopped for some unrelated traffic offense and the police officer discovers that the motorist has used or is currently using medical cannabis. This scenario, however, is highly unlikely if the officer had no reason to suspect that the motorist was under the influence of drugs. The scenario, however, is a possibility if following the stop, the motorist informs the officer that he or she has recently consumed medical cannabis under the mistaken belief that it could help explain the reason for a motor vehicle violation such as disregarding a stop sign or speeding. This is the primary reason why I advise clients to be respectful of police but never volunteer any information and to never answer any question which the officer poses following the stop.
Should You Refuse a Chemical Test?
- If you’re stopped for suspicion of DUI and are using medical cannabis as drug treatment, understand that your prescription IS NOT a defense to criminal prosecution for DUI. If you find yourself in this situation, here is some advice:
- You’re under no duty to disclose, nor should you disclose, that you are taking any type of medication which would include Cannabis, over the counter drugs such as Benadryl or other substances which could cause impairment.
- You are only required to provide the police officer with your license, vehicle registration, and proof of insurance. You are not required to answer any questions regarding what you may have consumed or the reason for traveling.
- You should never refuse a chemical test (blood or breathalyzer) because the refusal in and of itself will result in a license suspension regardless of the outcome of the criminal case. The license suspension is a civil sanction as opposed to criminal penalties. Your criminal defense lawyer can still make several arguments regarding the admissibility of the blood evidence which would include motions to suppress that evidence based on the lack of probable cause for the vehicle stop or the arrest.
If you would like more information regarding DUI defense I would encourage you to visit my website which maintains a regularly updated blog and two free downloadable books devoted to DUI defense.
Alfonso Gambone, Esq., of Gambone Law, can be reached at The Belmont Building, 211 N. 13th Street, Suite 825, Philadelphia, PA 19107, at www.gambonelaw.com, or at (215) 755-9000.