In a recent blog we discussed the very real risk of DUI arrest and prosecution for Pennsylvania’s medical cannabis patient community relative to Pennsylvania’s “zero tolerance” DUI statute for THC and THC metabolites. To recap briefly, a motorist can be convicted of DUI for any detectable amount of non-psychoactive THC metabolites. Proof of impairment is not required. Penalties for second and subsequent DUI convictions within a 10 year period escalate quickly and a third DUI conviction has a mandatory sentence of 1 year in state prison.
Every single Pennsylvania medical cannabis patient that uses their medication is literally DUI 24/7/365 under 75 Pa.C.S.A. §3802(d)(i).
Bills are pending in the Pennsylvania legislature to address this and require proof of actual impairment similar to a Schedule II prescription. But as those bills sit in Committee there are practical steps that medical cannabis patients can employ to avoid a negative law enforcement encounter.
First and foremost – NEVER DRIVE IMPAIRED. The National Organization for the Reform of Marijuana Laws’ (NORML) “Principles of Responsible Use” emphasizes that consumers should never operate a motor vehicle while under the influence of cannabis. A motor vehicle accident where one is seriously injured or killed can result in very serious criminal charges. Impaired driving threatens every other motorist and their passengers. The responsible medical cannabis patient will never drive high.
Next (and this should be as obvious as the paragraph above) OBEY TRAFFIC LAWS. Traffic enforcement is a priority for law enforcement, especially Pennsylvania State Police. Many traffic stops are a result of speeding, failing to use turn signals, failing to stop at Stop signs and other such traffic control devices, not utilizing headlights or having high beams on in traffic, etc. Law enforcement is especially vigilant at night when alcohol impaired drivers may be on the road after leaving drinking establishments.
Make sure that your vehicle is in proper working condition and is inspected and registered. Something as simple as a license plate light being out or a bad brake light is sufficient for a traffic stop. If your vehicle has after-market window tint consider removing it as this is also a reason for a traffic stop even if the tint is legal.
If you are transporting your medicine or paraphernalia needed to consume your medicine keep it well out of sight. Anything an officer can observe from looking in to the interior of your vehicle is “plain view” and can form probable cause to search the vehicle and lead to a DUI investigation. If you have a trunk, transport your medicine and paraphernalia in a closed bag or opaque container in your trunk. Remember, medicine must be stored in its “original dispensary packaging”. Strongly consider transporting your dispensary flower in its original dispensary packaging placed inside a sealed mason jar or other smell proof container. The “odor of cannabis” remains probable cause for a DUI investigation even as the “plain smell” doctrine is being litigated in Pennsylvania courts.
Pennsylvania medical cannabis identification cards look almost exactly like a Pennsylvania driver’s license or Pennsylvania identification card. Therefore, keep your Pennsylvania patient identification separate from your driver’s license or ID. Patients have inadvertently given an officer their patient ID and which, in turn, triggered a DUI investigation.
If you are stopped for a routine traffic violation NEVER disclose medical cannabis patient status (unless, of course, you are about to be arrested for possession of your dispensary medical cannabis). Law enforcement are free to ask questions such as “is there anything I should know about in your vehicle? Weapons, drugs?” Revealing patient status can easily lead to a DUI investigation. Also, NEVER admit recent cannabis use. Many patients believe that because they are not “high” they have nothing to worry about. Unfortunately, law enforcement is well aware that non-psychoactive THC metabolites are detectable long after the effects of THC have worn off. Admitting recent use “I didn’t use cannabis today, but I did last night before going to bed” is sufficient to trigger a DUI investigation. The Fifth Amendment of the Constitution guarantees that one cannot be forced to incriminate one’s self, and admitting recent usage will be used against the patient at trial.
Unfortunately, until the Legislature either addresses this glaring hole in our medical cannabis law or amends Pennsylvania’s ridiculous “zero tolerance” statute patients are advised to do everything they can to minimize the potential for a DUI investigation.