Advice for Medical Marijuana Users in Pennsylvania to Help Avoid DUI Charges

If you are a medical marijuana user in Pennsylvania, you are at risk of being charged with a DUI every single day. I can't really overstate how serious this is for medical marijuana users. This article discusses why that is and how to minimize your risk that your efforts to obtain treatment for your legitimate medical condition will result in you being charged with the serious crime of DUI.

Why Are Medical Marijuana Users Getting Charged With DUI in PA?

Marijuana, as of December 2020, remains on "Schedule I" for controlled substances by the federal government. Because of the way Pennsylvania's DUI law is written, if a driver has any amount of THC in their system, they are guilty of DUI. It does not matter at all if you are not "high" or not impaired. No other prescribed drug is treated this way. Not fentanyl. Not morphine. Not Oxycodone. Just marijuana. All those other drugs, when prescribed, must be present and must be causing actual impairment to allow the government to convict you of DUI. Marijuana, on the other hand, just has to be present in any amount, even a vanishingly small, barely detectable level.

Until Pennsylvania changes its DUI law or until the federal government reschedules marijuana to Schedule II or Schedule III, this manifest injustice will continue as it has for years now.

How Can Medical Marijuana Users Protect Themselves From Being Convicted Of DUI For Driving While They Aren't High?

One answer (a terrible one) is this: Become a second-class citizen and don't drive at all. Another answer (just as bad) is to stop using the medical marijuana that is medically necessary for you and replace it with a pharmacy product like oxycodone (for pain) or Xanax (for anxiety) that may have more side effects, abuse potential, and which may cost more.

An alternative approach is to reduce your risks.

The problem is that the moment a police officers knows you are a medical marijuana user, the first thing that goes through their mind is that they probably have a DUI right in front of them that they can investigate and charge you for. They know that almost every medical marijuana user always has at least a little THC in their blood that can be detected and result in a DUI charge.

As a driver, your primary goal is to prevent the police from ever finding out that you are a medical marijuana user so they never try to investigate you for DUI at an ordinary traffic stop. The second goal is to reduce your exposure to a DUI arrest by limiting the amount of evidence they can gather about you if they think you are impaired by medical marijuana.

1. Never, ever smoke marijuana. In Pennsylvania, smoking marijuana is not allowed under the medical marijuana law. I suppose the idea at the time PA passed its medical marijuana law was that "smoking is bad" and "vaping is not bad." Now, we realize vaping isn't that great, but the law remains the same. If you are smoking marijuana in PA, even medical marijuana, you are breaking the law. Marijuana smoke also smells very strongly, as you know, and it lingers a long time, sticking to your clothes, fabrics in your car, and to anything it comes in contact with. If you don't smoke, you reduce your risk profile.

2. Never, ever smoke marijuana in your car. First of all, you should not be using as you are driving. You are literally asking to be arrested, and you are likely a hazard to others, even if you don't think so. Don't do it. Also, if police smell burnt marijuana in your car when you are driving, they know about a court case called "Commonwealth v. Jones" that allows them to haul you into the hospital to draw your blood and test it for THC (the substance in marijuana that is the primary psychoactive component). If you are a regular medical marijuana user, you will certainly have it in your system and get charged with a DUI.

3. Never drive around with smoking paraphernalia in your car. If you insist on smoking marijuana, reduce your risks. First of all, these things smell strongly of burnt marijuana and are very likely to be discovered by police during a traffic stop. If the police find a bowl, a blunt, or rolling papers in your car, you will certainly be charged just for possessing them. You will also be questioned about marijuana use and you'll be put through field sobriety tests. The end game is likely an arrest, a blood draw and a DUI. The way to avoid it is to keep that stuff out of your car.

4. Always keep your medical marijuana in the original packaging. If you take some medical marijuana and put it into a baggie for convenience when you drive somewhere, you are breaking the law. It must be kept in the original container and packaging at all times. Not one police officer or judge will listen to you as you show them a receipt for the marijuana from ten minutes before you were stopped. They will not care that it looks exactly like the rest of the marijuana in the original packaging at your house. You will end up with a possession charge for the marijuana and probably a paraphernalia charge (for the package). 

5. Never carry your medical marijuana card in your wallet or purse. If you get stopped for driving like a dummy, like we all do sometimes, if you are flipping through your wallet looking for your license and registration, and the officer sees your Pennsylvania Medical Marijuana Card, you will endure questioning, probably field sobriety testing, and maybe a blood test and a DUI charge. If they don't ever see it or know you have a medical marijuana card, you are more likely to fly under their radar.

6. When driving with your medical marijuana card and your medical marijuana products, keep them in a locked container in your trunk. You have to drive to the dispensary to buy medical marijuana and you have to get it home. How do you do this safely? Buy a small metal cash box, like you see at fundraisers. Make sure it has a key or combination lock. Keep your medical marijuana card in it. When you go into the dispensary, put your medical marijuana products into it. Lock it. Put it into your trunk or hatch. Cover it with something else, like a blanket or put it in a backpack before driving off. If police do not see these things, they are not nearly as likely to suspect you are a medical marijuana user and then ask you about your medical marijuana use or to pull you out of your car for field sobriety testing.

7. Don't do anything to your car that attracts attention to it and drive conservatively. If you have drug-related bumper stickers, remove them. Do not hang anything from your rear view mirror - that gives police probable cause to stop you for a "windshield obstruction." Yes, that is bullshit, but it happens to one of my clients at least a few times a year. Hang your air freshener from your gear shifter or a radio knob. Do not install aftermarket tinted windows. Make sure your inspection is current. Make sure you do not let your registration lapse. Check all your lights for your car regularly. Drive right around the speed limit. Do not camp in the left lane on the interstate.

8. Do not EVER admit you used medical marijuana within the last month. If the officer somehow finds out you use medical marijuana, they will always, always ask, "When did you use it last?" Practice saying "a month doesn't really help, so I don't use it." You will not get in trouble in PA for lying to police in this manner. The wrong answers include "an hour ago" or "this morning" or "last night" which are all answers my clients (who were all charged with DUI) gave to police in the month before I wrote this article.

9. If the officer asks you to look at something (his finger or a pen or a flashlight) and follow it with your eyes, do not do it. The officer is doing a field sobriety test on you and is checking to see if your eyes do things that you can't control that show recent marijuana use. You are allowed to legally refuse to do this with no consequences in PA.

10. If the officer asks you to walk a line or stand on one leg, refuse to do it. The officer is doing a field sobriety test on you. You are allowed to legally refuse to do this with no consequences in PA. Do not try to do the test. You are likely to fail even if you are sober if you are nervous or overweight or old or have medical conditions like a bum knee or back problems.

11. If the officer asks you to close your eyes, tilt your head back and estimate 30 seconds, refuse to do it. The officer is doing a field sobriety test on you. You are allowed to legally refuse to do this with no consequences in PA. Do not try to do the test. You are likely to fail even if you are sober if you are nervous or overweight or old or have medical conditions like a bum knee or back problems. 

12. At all times, be calm, respectful, and polite to the police officer. If you follow the advice in this article, you probably won't come into contact with the police at all. If you do, and if they somehow come to suspect you for a DUI due to marijuana, they will be frustrated when you exercise your rights. They may become less friendly and congenial as your interaction with them goes -- you're taking them out of their usual "patter" with people at the roadside, and they will probably be somewhat frustrated or irritated, but I expect they will keep their cool because the vast majority of them are decent people doing their jobs professionally. Honestly, over the twenty plus years I've been a lawyer, I've grown to have more and more respect for police because of how they handle themselves in some very difficult situations I've only ever seen on recordings.

Your behavior may be compared to theirs by a judge in a courtroom after the fact. Those judges are often sympathetic to police, and they don't appreciate seeing someone giving an officer a hard time. With that in mind, be as calm as you can, even though you are very likely to be scared and nervous. Do not raise your voice or bark or use profanity. Be respectful, always. Remember you will be on camera and what you do could be played in court later. Don't act crazy or high, or it won't go well for you at the roadside or in court.

13. As with any prescription medication, please be safe when using medical marijuana and then later on, driving. Nothing in this article condones driving while your ability to operate a vehicle is impaired as a result of marijuana use. That is dangerous, illegal, and I do not want anyone in that condition on the roads my wife and kids use or that I use. The point here is not to help actually impaired drivers to evade detection. The point is to help legal medical marijuana users with extremely low Delta 9 THC levels (below 5.0 ng/ml or so) avoid getting a DUI when they almost certainly are not actually impaired or putting anyone at risk. Become familiar with your medical marijuana in the way you would be familiar with pain medications, anxiety medications, or other power medicines before you get out on the highway with any of it in your system. Keep yourself safe and keep the rest of us safe, too.

Ultimately, my hope for this article is that the benefits of medical marijuana can be realized -- fewer cases of addiction to prescription pain killers, lower cost than prescription medications, fewer side effects, etc. -- without collateral legal damage occurring to legitimate users in the form of unpredictable DUI charges based on low, non-impairing levels of THC being in their system.

I am increasingly frustrated with telling clients like a 60+ year old woman with a medical marijuana card who had 0.72 ng/ml of Delta 9 THC in her blood and was charged with DUI after drifting over a fog line twice and the center line once on a rural road on her way home in the evening after spending the day with her sister when they had used marijuana that morning.

Another client with a low THC level was a medical user in Maryland who was stopped on I-83 because of a "tree" style air freshener hanging from his mirror with no indicators of bad driving. His medical marijuana materials (from Maryland) were in the seat beside him and he showed the officer his medical marijuana card and admitted smoking "earlier that day."

I have a folder with criminal complaints and toxicology results in such cases that just continues to grow every month. Hopefully, someday our legislators will make a change. Until then, this article is necessary.

  • Joseph Gothie
    published this page in DUI Blog 2020-11-25 12:59:47 -0500