“Pass it now and fix it later”.
That was the prevailing sentiment amongst lawmakers in 2015 and early 2016 as they worked to craft Pennsylvania’s Medical Marijuana Act (MMA). Veteran legislators understood how difficult it was to pass something as comprehensive as the MMA and urged striking while the iron was hot and to not risk losing momentum.
In a very real sense they were right. Pennsylvania’s Medical Marijuana Act passed with broad bi-partisan support and was signed in to law by Governor Wolf on April 16, 2016.
Since then, however, efforts to amend the MMA have proven maddeningly elusive. While it may be of no surprise that bills to add home cultivation failed to advance in Committees chaired by Republicans (who’s party removed the provisions from the MMA) more modest bills to protect tenants, to add a right to sue for employment discrimination, to make banking easier for license holders, have all failed to advance in Committee. Bills to protect patients from PA’s “zero tolerance” DUI laws have met a similar fate.
In the 6+ years since Gov. Wolf signed the MMA and in the almost 5 years since patients had lawful access to medical cannabis only one piece of legislation out of more than a dozen (two dozen?) became law. HB 1024 made the pandemic related emergency changes (tele-med, curbside delivery, 90 day supply and caregiver expansion) permanent and included industry related amendments such as the ability to remediate. It passed in August, 2021.
Against this background of legislative frustration SB 167 is a shining beacon of hope for Pennsylvania’s 450,000+ patient community. Senate Bill 167, sponsored by Sen. Bartolotta (R. Wash.) is a relatively simple bill that will treat medical cannabis patients the same as patients using a Schedule II or Schedule III prescription narcotic. Because medical marijuana, like it’s illegal cousin from the street, remains Schedule I under PA law patients can be arrested, prosecuted and convicted regardless of whether they exhibit any signs of impairment provided there is a detectable amount of THC or THC metabolites including non-psychoactive Carboxy THC in their blood. Thus, a patient who is responsibly using their medical cannabis is literally DUI 24/7/365 because there will always be a detectable amount of Carboxy THC in their blood.
I consider this the most pressing issue facing Pennsylvania’s medical cannabis patient community. Many who are charged with a cannabis related DUI are eligible for a diversionary program. But even a diversionary program costs thousands of dollars in fines and supervision fees and includes a mandatory loss of driver’s license. But the penalties escalate dramatically if the patient has a second or third offense within 10 years. A third offense is a Felony of the Third Degree and brings with it a mandatory one year period of incarceration with the Department of Corrections. County DUI Courts will not accept medical cannabis patients because, by definition, the medical cannabis patient is not a drug addict in need of treatment.
It is very difficult to counsel a grandmother or a disabled veteran who finds themselves ensnared by a law enforcement officer who decides to “manufacture” a DUI. “But, Mr. Nightingale, I told the officer that I hadn’t used since the day before and that I wasn’t impaired. He made me take a blood test and now you’re telling me I’m guilty of DUI because of mere metabolites?” Yes. That’s exactly what I am telling you.
For a brief period of time it appeared as though the Courts would distinguish medical marijuana from illegal black market or street marijuana. Schedule I classification was arbitrary ab initio. It means that cannabis has no medically accepted use and a high potential for abuse. This is particularly absurd when a state like Pennsylvania provides legal access to cannabis for hundreds of thousands of patients with one or more of 23 qualifying conditions. With this in mind the Superior Court in Com. v. Jezzi opined that “medical” marijuana is not Schedule I, only marijuana is. Unfortunately, the Superior Court later held in an en banc decision that medical marijuana remains Schedule I absent legislative action. (This is currently pending before the Pennsylvania Supreme Court).
Since March, 2020, Senator Bartolotta has worked with me and activists from NORML, the National Organization for the Reform of Marijuana Laws, to craft an amendment to Pennsylvania’s controlled substance DUI law. Sen. Bartolotta’s bill did not advance in Committee in 2020 and was reintroduced as SB 167 early in the 2021 legislative session. It gained momentum when Senate Transportation Committee Chair Sen. Langerholc held a hearing in September, 2021. Pennsylvania State Police representatives testified that it would not impact their mission to keep the roads free from impaired drivers. It won the support of the PA DA’s Association as well as the PA DUI Association.
SB 167 passed out of the Transportation Committee with unanimous bi-partisan support.
But, as discussed briefly at the beginning of this blog, moving legislation through Harrisburg is not an easy process. Simply stated, we ran out of time to get the final version of SB 167 to the full Senate for a floor vote. We believe that not only will SB 167 be reintroduced early in the next legislative session (beginning Jan. 1) but we believe it will move through the Transportation Committee quickly and will receive a full Senate vote in the Spring or Summer of 2023. Barring any delays in the House we are optimistic that DUI protections will finally arrive for Pennsylvania’s medical cannabis patient community – three years after Sen. Bartolotta first introduced her bill.
Any DUI reform bill will unfortunately not be applied retroactively. I am hopeful that the expedited pardon program for marijuana specific offenses remains in place during the next Governor’s Administration, giving patients convicted of DUI an opportunity to seek a pardon. In the meantime, however, every single medical cannabis patient in Pennsylvania is at risk of a potentially life altering DUI arrest even if stone cold sober at the time of the traffic stop.
“Pass it now and fix it later”.