Pennsylvania's Cruel Marijuana DUI Law Harms Medical Marijuana Patients

Pennsylvania's DUI law is incredibly cruel when it comes to marijuana. It penalizes innocent people and it preys on those who use medical marijuana instead of relying on opiates for pain relief. It needs to be changed.

With the legalization of medical marijuana in Pennsylvania, I've seen more and more clients come in who have been charged with DUI offenses due to having marijuana in their system. If they were high, I wouldn't have a problem with that, since I drive on the roads too, and so do my family members and friends, etc. I want safe roads. But I also want the law to make sense.

Why is the marijuana DUI law cruel in Pennsylvania? The problem lies in the fact that medical marijuana users who aren't high can get DUI charges that are incredibly damaging to their lives, freedom, and reputations. They become criminals even if they aren't high and even if the marijuana (the THC in their blood, actually) does not cause their driving to be bad.

That's horribly wrong.

Pennsylvania's drug DUI law is written in a way that makes anyone with any amount of any Schedule I drug in their system guilty of DUI, automatically. It does not require the driver to be high. It does not require the driver to be impaired. No, you are guilty of DUI if you have any amount of a schedule I controlled substance in your system, including a "metabolite".

Here's the DUI law on point with highlights to show the problem areas:

"(d)  Controlled substances.--An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1)  There is in the individual's blood any amount of a:

(i)  Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act;

(ii)  Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii)  metabolite of a substance under subparagraph (i) or (ii)."

 

Again, you do not have to be "high". You do not have to be impaired or "incapable of safely operating a vehicle".

The THC from the marijuana just has to be there - in your blood. In any amount, no matter how little.

Under federal law (and Pennsylvania follows this), Marijuana is on "Schedule I" which is reserved for drugs that have no legitimate medical uses. Yet, the government in Pennsylvania has made medical marijuana legal to buy and use. They did this for compassionate reasons and to avoid having people fall into the trap of becoming addicted to opiates and then moving to heroin or fentanyl and maybe overdosing or getting hepatitis or AIDS, etc. There were sound reasons for medicalizing marijuana.

Unfortunately, the Legislature left a giant trap for unwitting citizens to fall into.

If I am a police officer and I see someone driving like a knucklehead on the roads, which is everywhere every single day, I do my job and stop the driver and find out what's happening. Sometimes I issue a warning or sometimes a ticket. If I think the driver is high because I see drugs or smell marijuana, I investigate a DUI. I do field tests and so forth.

Right now, there are many, many police trained to look for drugs by administering tests that claim to show signs of marijuana use that don't necessarily show impairment. If someone can't walk a straight line or stand on one foot because they're high (and wobbly), that's fine. We want them off the road, right? At least if we know they failed the tests because they were high and not because they were old, unfit, or have medical conditions that make it hard to do those things regardless of drug use, anyway.

What if you tell someone to tilt their head back and estimate the passage of thirty seconds in their head, and you have them stop the test and look at you when they think it is done? What if that person stops at 24 seconds (rather than thirty) and their eyelids twitch? Is that person high? Are they a danger on the road? (Hint: no) Try it with friends and see which ones have supposedly been using marijuana. It's laughable.

If the person explains to the officer that they have back problems or a bad knee or they've been shot in the head (all real cases I've had) is it still valuable data? What if they show the officer their medical marijuana card and say they are using medical marijuana to manage their chronic pain?

If those things happen, that person is getting arrested and going in for a blood draw. Since they regularly use marijuana so pain doesn't make their life a living hell, there will be THC (the psychoactive component of marijuana) in their blood, sometimes for days after they last used marijuana.

What can be present is a low amount of Delta 9 THC, which is the psychoactive component of marijuana. Like alcohol, the presence of some THC doesn't mean someone is gooned up. One 12 ounce can of Yeungling would give me a BAC of about .025. I'm not drunk. I'm not a hazard on the road, at least not anymore than I already am, the way I drive, right?

If I had 5 beers, I'd be well over .08, which is the legal limit. I'd probably be over .10. I'd be a legitimate hazard on the roads.

Marijuana's presence in blood isn't some magically incapacitating concoction. One drop of alcohol doesn't make you a drunk driver, hazardous to all around you. Neither does a "drop" of marijuana. Low levels of THC do not impact driving, and drivers with low amounts of THC (maybe because they smoked marijuana the 12 hours before, or the day before) should not be treated the same way as someone who just smoked and is high. 

If someone smokes or vapes or eats marijuana in the morning and drives 12 hours later, they are not going to be "high". They will show low levels of THC. Their blood test results will show something called "metabolites" which are substances that the THC breaks down into after marijuana has been used.

Your body processes and removes THC, otherwise people would use marijuana once and be high forever. Like alcohol, the body processes it and gets rid of it. Part of the elimination process involves breaking down the THC and converting it into other substances that do not make people "high" and getting rid of them by breath, sweat, bile, and urine - the usual "trash removal" processes of the body. The metabolites, particularly one of the final ones (and one that is tested for) -- Delta 9 Carboxy THC -- do not make people high.

If that metabolite is in your system? BAM! You just got a DUI.

Marijuana is a drug that has a strong impact and can have lingering impacts. So is Prozac. So is Xanax. So is Oxycontin or Percocet. Studies have shown driver impairment following dosages of things as innocuous as ibuprofin. Should we have a zero tolerance policy for them, too?

Now, if you are taking Oxycontin for pain and you have a legitimate prescription, you might be able to drive around with it in your system. You can't do that with marijuana. If the Oxycontin is in your system, there is no magical "limit" (as with alcohol -- .08). The government has to prove that your driving was impaired by it. They don't just have to show it is there, like with marijuana. They have to prove that your bad driving is caused by the drug. Only then can they convict you of DUI.

With marijuana, the only issue is "does the blood test show marijuana?" If the answer is "yes" you are DUI, regardless of whether your driving was perfect. Regardless of whether your field sobriety tests were perfect.

I can pretty much guarantee you that if you are coming home from a dispensary and have your marijuana next to you in your car, and you are pulled over for speeding that the officer will ask you "when did you last use marijuana?" You will say something like "this morning" and you'll be given field tests and you'll be arrested and taken for a blood test which will show marijuana.

You will be treated exactly the same as if you drank a quart of whiskey and drove.

You will be convicted of DUI or, if you are lucky, you will get in the first offender program (ARD). You will lose your license, pay thousands of dollars in court costs and lawyer's fees, go through drug and alcohol evaluations, public shaming in the newspapers and online, your auto insurance will be cancelled at worst or your premiums will skyrocket at best, and your life will be generally made a living hell.

Even if you are not high.

Even if you are using marijuana as an alternative to getting addicted to opiates.

What can our Legislature do?

Change our drug DUI law. Here is my suggested revision:

"75 § 3802

(d)  Controlled substances.--An individual may not drive, operate or be in actual physical control of the movement of a vehicle under any of the following circumstances:

(1)  There is in the individual's blood any amount of a:

(i)  Schedule I controlled substance, as defined in the act of April 14, 1972 (P.L.233, No.64), known as The Controlled Substance, Drug, Device and Cosmetic Act, [except legally prescribed marijuana used by the patient];

(ii)  Schedule II or Schedule III controlled substance, as defined in The Controlled Substance, Drug, Device and Cosmetic Act, which has not been medically prescribed for the individual; or

(iii)  metabolite of a substance under subparagraph (i) or (ii) [except a THC metabolite from legally prescribed marijuana used by the patient], or

(iv) 5.0 nanograms per milliliter or more of Delta 9 THC from legally prescribed marijuana used by the patient."

 

A number of states already follow a "per se" model based on a defined amount of THC in the blood, which is exactly the way our alcohol DUI law functions. A 2017 chart from the National Conference of State Legislatures lists the approaches of all the states at that time. The approach I suggest above would apply only to a legitimate user of prescribed marijuana, and not recreational users or medical users who do not have a valid medical marijuana card.

If the goal is to have a law to stop impaired drivers and to further the medical and humanitarian goals of mitigating the horror of the opiate death epidemic, a "zero tolerance" law making everyone with THC in their system a criminal seems like a really bad way to do things.

Focus on the people who are actually impaired. For what it is worth, 5.0 ng/ml probably does not make a regular, attenuated user of medical marijuana impaired. They can probably function well above that, but I'll concede 5.0 on safety grounds until there's better data.

Legislators: please reform our DUI laws to avoid making non-risky, medical marijuana users into criminals. Do not enhance their suffering.


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