“Pennsylvania’s Medical Cannabis Patients Need DUI Reform NOW – Why “zero tolerance” places a quarter million Pennsylvanians at risk”

In April, 2016, Pennsylvania Governor Tom Wolf signed Act 16 bringing a comprehensive medical cannabis program to the Commonwealth. Retail sales began in February, 2018. Since that time over 400,000 Pennsylvanians have registered as patients and caregivers. According to the Department of Health over 250,000 are regularly purchasing medical cannabis from licensed Pennsylvania dispensaries. This number will continue to grow as Pennsylvania adds more grow facilities and dispensaries as part of its “clinical research” program.

In fact, many have touted Pennsylvania’s medical cannabis program as one of the best in the Nation, high praise considering there are 33 medical states.

Unfortunately for Pennsylvania’s medical cannabis patient community our “praiseworthy” program has one glaring omission – protections for patients from Pennsylvania’s “zero tolerance” DUI laws regarding detectable amounts of THC and its non-psychoactive metabolite Carboxy THC. Proof of actual impairment is not required to arrest, prosecute and convict one of DUI for the presence of a controlled substance or its metabolite in the motorist’s blood.

Pennsylvania enacted a new DUI statute, 75 Pa.C.S.A. §3801 et seq, in February 2004. It enhanced penalties for repeat offenders among. Relative to non-prescription Schedule I or Schedule II controlled substances it prohibited operating a motor vehicle with any detectable amount of a controlled substance or its metabolite. Most controlled substances such as opioids or cocaine metabolize very quickly, meaning the presence of their metabolites is indicative of recent use. With cannabis the opposite is true.

Tetrahydrocannabinol (THC) is the psychoactive chemical in cannabis that provides an intoxicating effect. The “high” comes on quickly when cannabis is inhaled and THC levels in the blood spike. Just as quickly THC begins to metabolize in the blood, converting to its psychoactive metabolite Hydroxy THC within a relatively short time. Hydroxy THC quickly converts to non-psychoactive Carboxy THC. It is Carboxy THC than can be detected in the blood for hours, days and even weeks after consumption. In other words, one can be convicted of DUI in Pennsylvania for cannabis they legally consumed in San Francisco last week

What does this mean for Pennsylvania patients? It means that ever single medical cannabis patient is at risk of a DUI conviction if they are using their medicine regardless of actual impairment. Patients have inadvertently revealed medical cannabis patient status turning a routine traffic stop in to a DUI arrest as law enforcement knows that mere metabolites are sufficient. In Pennsylvania the penalties for DUI increase significantly, and a third DUI within 10 years is a felony with a mandatory sentence in Pennsylvania State Prison.

Bills have been introduced in the Pennsylvania House and Pennsylvania Senate to address this glaring hole in patient rights. House Bill 2337 and Senate Bill 1206 would amend Pennsylvania’s “zero tolerance” DUI laws by treating Pennsylvania’s medical cannabis patients the same as a patient with a Schedule II prescription by requiring proof of actual impairment. This is not a free pass for medical cannabis patients to drive high. THC levels may very well be proof of impairment and would certainly be admissible in Court. (Act 16 does have a 10 ng/ml limit for certain employment activities). Pennsylvania is in the minority of states with its “zero tolerance” for non-psychoactive THC metabolites. Others have either a THC cutoff (Colorado is 5 ng/ml of THC) while others require proof of actual impairment, with THC levels being admissible in support thereof. Arizona’s high court recently declared Carboxy THC only DUI prosecutions of medical cannabis patients in Arizona as unconstitutional.

In the wake of Governor Wolf and Lt. Governor John Fetterman’s calls for full legalization opponents have pumped the brakes saying “wait – we want to make sure our medical program is “fixed” before moving on to full legalization.” Fair enough. The lack of DUI protections, weak employee discrimination protections and high retail prices are very real issues confronting our medical cannabis program. Considering the immediate need for DUI protections for a quarter-million patients this seems an easy “fix” with SB 1206 and HB 2337.

Unfortunately, both bills appear stuck in Committee as (mostly) conservative lawmakers sound the alarm bell that law enforcement cannot possibly protect Pennsylvanians from impaired medical patients because they lack a THC breathalyzer or other investigative techniques to detect cannabis impaired drivers.

This is utter nonsense.

I began my legal career as a prosecutor in Pittsburgh in 1996 and I have practiced criminal defense in Pennsylvania’s Courts of Common Pleas since 2002. I have never witnessed a controlled substances DUI withdrawn because the investigating officer lacked the tools to determine whether the motorist was impaired. In fact, law enforcement officers are very well trained to detect impaired driving. The National Highway Traffic Safety Administration (NHTSA) provides standardized Advanced Roadside Impaired Driving Enforcment (ARIDE) training to law enforcement agencies. Law enforcement are qualified as Drug Recognition Experts (DRE) and use a variety of tools to investigate and detect actual drug impairment.

ARIDE training is multi-faceted and begins with good old fashioned observations and interrogation. Was the motorist operating their motor vehicle in an erratic fashion – weaving from lane to lane, ignoring traffic control devices, excessive speed or very slow speed? Upon encountering the motorist did the officer observe glassy or bloodshot eyes? Was the motorist’s demeanor indicative of impairment? Did the officer observe an odor of cannabis or observe evidence of cannabis or cannabis paraphernalia in the vehicle? Did the motorist make an admission to consuming cannabis?

Once the officer suspects any type of impairment – alcohol or controlled substances (or both) he or she can request the motorist perform “field sobriety tests” to investigate whether the motorist shows signs of impairment. Law enforcement will grade the motorist’s performance on a variety of criteria – did the motorist understand and follow the officer’s instructions? Did the motorist perform the test as demonstrated? Did the motorist lose their balance? Relative to suspected cannabis impairment did the motorist exhibit a “green or chalky tongue” or “eyelid tremors”?

Once the officer believes there exists evidence of potential drug impairment the officer can request a chemical test. Pennsylvania is an “implied consent” state and a motorist will lose their operating privileges for a year if they refuse. In the case of a medical cannabis patient there will always be detectable amounts of Carboxy THC.

Every single day every single Pennsylvania medical cannabis patient is at risk of having their lives turned upside down for using medical cannabis. They are being prosecuted and convicted of DUI and left without the ability to even argue that they were not impaired. Not only is this unfair, it is unconscionable.

If our conservative friends in the Legislature are serious about “fixing” Pennsylvania’s medical cannabis program amending our “zero tolerance” DUI statute re: THC metabolites is critical.

Patrick K. Nightingale, Esq.

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