DUI Protections for Medical Cannabis Patients – Judicial or Legislative?

Almost every day we receive calls from medical cannabis patients across the Commonwealth in distress and unable to understand why they were arrested and charged with Driving Under the Influence of a Controlled Substance when they were not impaired in the least.  These patients are aghast at the concept that they will suffer a driver’s license suspension, face thousands of dollars in fines and court costs and potential mandatory jail time.  A completely sober patient with their child or children can even face Endangering Welfare of Children charges if they have a detectable amount of non-psychoactive THC metabolites in their blood.  Refuse the blood test and lose one’s operating privileges for a year.

“Do you mean to tell me the Legislature passed this law and left patients out to dry?”

Yes.  Yes it did.

Here’s the issue – Pennsylvania has a “zero tolerance” law relative to Schedule I and non-prescribed Schedule II and Schedule III controlled substances and their metabolites.  Proof of actual impairment is not required.  If a law enforcement officer has reason to suspect the motorist is a medical cannabis patient (motorist accidentally hands over patient ID, admits being a patient, etc.) and requests a chemical test, the presence of Delta 9 THC or its metabolites is per se sufficient for a conviction in Pennsylvania.

But is “medical marijuana” as defined by Pennsylvania’s Medical Marijuana Act (codified at 35 Pa.C.S.A. §10231.101 et seq.) a “controlled substance” under Pennsylvania law?  There are two reasons to believe that it is not.

First, section 2101 of the MMA sets forth that any conflict with Pennsylvania’s Controlled Substances Act (codified at 35 Pa.C.S.A. §780-101 et seq.) shall be resolved in favor of the MMA:

“The growth, processing, manufacture, acquisition, transportation, sale, dispensing, distribution, possession and consumption of medical marijuana permitted under this act shall not be deemed to be a violation of the . . . The Controlled Substance, Drug, Device and Cosmetic Act. If a provision of the Controlled Substance, Drug, Device and Cosmetic Act relating to marijuana conflicts with a provision of this act, this act shall take precedence.”

This is the section that protects a patient who is in compliance with the other provisions of the MMA from prosecution for possession of a controlled substance as marijuana is otherwise a Schedule I controlled substance pursuant to 35 Pa.C.S.A. §780-104(1)(iv).  If medical marijuana is legal for a patient to possess it cannot therefore be a Schedule I Controlled Substance.

Marijuana is also designated a Schedule I controlled substance pursuant to Pennsylvania’s Vehicle Code at 75 Pa.C.S.A. §1603.  Section 1603 defines a “controlled substance” as any substance so designated by Pennsylvania’s Controlled Substances Act.  Section 2101 of the MMA does not refer to the Vehicle Code, but only the Controlled Substances Act.

The question, therefore, is whether the MMA can be interpreted as superseding both the Controlled Substances Act andthe Vehicle Code.  Generally speaking, Courts are reluctant to add language or provisions to a statute that was not included by the Legislature.  Will a Court interpret § 2101 as superseding the Vehicle Code definition of a controlled substance because both §2101 and the Vehicle Code refer specifically to the Controlled Substances Act?  That has yet to be litigated.

The second reason to believe that medical marijuana is not scheduled by the Controlled Substances Act is found in Commonwealth v. Jezzi, 208 A.3d 1105 (Pa. Super. 2019).  In Jezzi the appellant challenged marijuana’s Schedule I classification as unconstitutional because the MMA demonstrated that marijuana has medical efficacy and cannot therefore meet the definition of a Schedule I controlled substance.  The Superior Court denied relief finding that the MMA and PA’s Controlled Substances Act can be interpreted consistently.  It said:

“Regarding Appellant’s equal protection challenge, we first observe that medical marijuana is not listed in the CSA as a Schedule I substance, only marijuana is listed. The MMA provides a very limited and controlled vehicle for the legal use of medical marijuana by persons qualified under the MMA.  See 35 P.S. § 10231.102(3). Outside the MMA, marijuana remains a prohibited Schedule I controlled substance for the general citizenry who are unqualified.”

At least one Pennsylvania judge has interpreted this as requiring the Commonwealth to prove that the THC in a motorist’s blood was not from medical marijuana in order to obtain a conviction for driving under the influence of a controlled substance.  That issue is currently on appeal before the Pennsylvania Superior Court.

A far more certain resolution to this issue lies with the General Assembly.  For reasons unknown the issue of DUI protections for medical cannabis patients was not addressed when the MMA was finalized and signed into law.  “Pass it now and fix it later” seemed to be the attitude.  Unfortunately, that is proving to be far more difficult in practice.  In the last legislative session bills were introduced in the Senate and the House to require proof of actual impairment, but neither had either a hearing or a vote in Committee.

Will this legislative session be any different?

Senator Camera Bartolotta (R-Wash) has re-introduced her DUI protection bill as SB167.  It has been assigned to the Transportation Committee which Sen. Bartolotta sits on, so there is reason to be optimistic that she can convince the Committee Chair, fellow Republican Senator Wayne Langerholc, to hold hearings and bring her bill up for a vote in Committee..  The bill has bi-partisan support, including Senate Minority Leader Jay Costa.  Sen. Bartolotta’s bill will remove “medical marijuana” as defined by the MMA from the Vehicle Code’s definition of a controlled substance. It also requires proof of actual impairment which is required under PA law for a Schedule II or Schedule III prescription narcotic.  Pennsylvania is in the minority of states with “zero tolerance” for THC and its metabolites as the majority require proof of actual impairment (this includes states where marijuana remains 100% prohibited such as Texas).

But even this simple solution has run in to disingenuous opposition from Sen. Bartolotta’s fellow Republicans.  The primary argument is that without a portable breath testing device for THC law enforcement is unable to assess whether a motorist is under the influence of marijuana.

This is pure nonsense.

Law enforcement is very well trained and equipped to investigate drug impaired driving.  Was the motorist driving erratically?  Did the motorist admit recent drug use?  Are there observable signs of impairment such as bloodshot eyes, dilated pupils, slurred speech, confusion?  Every law enforcement officer in Pennsylvania is trained to perform “field sobriety tests” such as the walk and turn or one leg stand which are designed to test both balance and the motorist’s ability to comprehend and follow instructions.

Finally, the National Highway Traffic Safety Administration (NHSTA) provides Advanced Roadside Impairment Driving Enforcement (ARIDE) training to law enforcement.  Officers who complete the training are deemed “Drug Recognition Experts”.  The DRE officers are regularly called to assist in making a drug impairment determination prior to an arrest and chemical test.  ARIDE protocols include physical observation, checking pulse rate at specified intervals and interviewing the motorist.  Pennsylvania State Police have been particularly fond of ARIDE training and a DRE is always available to assist the Trooper who made the initial traffic stop.

Requiring proof of actual impairment will not result in medical marijuana patients careening wildly on Pennsylvania’s highways and byways highly impaired by medical cannabis.  It will protect those who are not impaired from being ensnared by Pennsylvania’s tough DUI laws which can escalate to a mandatory minimum one year incarceration for a third DUI within 10 years.  Any patient who is using medical cannabis will always have a detectable amount of THC’s non-psychoactive metabolite Carboxy THC and is therefore always at risk of being arrested for a DUI should the officer learn that the motorist is a medical marijuana patient.

The remedy, either judicial or legislative, seems simple and direct.  Practically speaking, however, achieving DUI protections for Pennsylvania’s 280,000 + medical cannabis patients appears anything but.

Patrick K. Nightingale, Esq.

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