Pennsylvania Medical Marijuana and Drug DUI Laws

In February of 2018, Pennsylvania residents were able to obtain medicinal marijuana.  Regrettably, questions regarding the whether or not the marijuana can be “legally” possessed and “legally” ingested or consumed is still an issue.  Pennsylvania law still generally prohibits a person from possessing marijuana, and the distribution or delivery of marijuana remains a felony offense.  With the passing of the medicinal marijuana law, Pennsylvania created an exception to those criminal laws, but Pennsylvania could not create an exception to the Federal drug laws, which still prohibit the possession and distribution of marijuana.

Pennsylvania Marijuana DUI Laws

As people being to lawfully use marijuana in Pennsylvania, those people could be facing DUI charges.  Everyone agrees that people, even lawful medical marijuana users, cannot drive a vehicle while under the influence or while impaired by marijuana.  People that choose to drive while impaired should be prosecuted for DUI.  However, many people are not aware that a person can be charged with a drug-DUI even if the driver was not impaired while driving.  Pennsylvania law actually prohibits a person from having a level of metabolites, which is basically drug residue, in the person’s body.  A person that ingests marijuana will have metabolites in his or her body for days, weeks, and possibly even months thereafter.  The medical marijuana users will soon be driving with the marijuana metabolites in their systems and are thereby in jeopardy of being charged with a DUI.

Probable Cause to Request Blood Test

Most DUI investigations start with the police conducting a traffic stop for a minor violation, such as speeding, turn signal, or stop sign violation.  While interacting with the driver, the police develop or notice evidence of driving under the influence, such as the odor of alcohol or marijuana, and the traffic stop then becomes a DUI investigation.  In most drunk driving cases, the police administer field sobriety tests or breath tests.  The police are legally permitted to arrest a person and invoke the Implied Consent law if the police have probable cause to believe that the person is violating the Pennsylvania DUI law.  Pennsylvania law prohibits a person from having marijuana metabolites in the body while the person is driving, the police would arguable have probable cause to arrest if the police were aware that the driver had a medical marijuana card.  The police may also question the driver about marijuana consumption.  If the driver admits to having ingested or taken marijuana, the driver is thereby giving the officer probable cause to believe that the officer will find marijuana metabolites in the driver’s blood.

Constitutionality of the DUI Law

In the past, Pennsylvania courts upheld the constitutionality of the DUI law by noting that people did not have a constitutional or lawful right to use marijuana prior to driving, and, to the contrary, the law prohibited any person from possessing or ingesting marijuana.  Basically, the court could uphold the legality of such laws because a person did not have a lawful right to ingest marijuana.  Now, with the legalization, de-criminalization, and use for medical marijuana being permitted across the United States, many people will now have ingested marijuana lawfully.  While the use of marijuana may have been legal, the Pennsylvania DUI law still prohibits those people from driving with marijuana metabolites in the body.  I doubt that the Pennsylvania legislature will take steps to fix this apparent problem in the DUI law.  Instead, I the relatively near future, someone that use marijuana lawfully will be charged with a DUI, and the person will challenge the constitutionality of the per se marijuana DUI law under 75 Pa.C.S.A. 3802(d)(1)(iii).  With people now lawfully using marijuana, I believe that the Pennsylvania courts must rule that the per se marijuana law is overbroad and thereby unconstitutional.